R v Yorkston[2023] QDCPR 12

DISTRICT COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE SMITH

Indictment No 1721 of 2022

THE KING

v.

CHRISTOPHER JAMES YORKSTON Defendant

BRISBANE

11.11 AM, WEDNESDAY, 1 MARCH 2023

RULING

HIS HONOUR:   This is an application by the defence to issue subpoenas to organisations which may hold protected counselling communications.  The applicant is charged with two counts of rape.  The trial is listed as the number 1 trial in the week commencing 17 April 2023.  The applicant seeks leave of the Court to issue subpoenas to Zig Zag Young Women’s Resource, Headspace, SmartClinics Taigum Medical Centre, Pine Rivers Private Hospital, and the CYMHS.  An application has already been brought and determined in relation to records held by both Queensland Health and the Department of Education. 

In summary as to the facts, on 12 December 2021, the applicant and the complainant met for the first time during the course of a house party.  During the course of the evening, the two left the party and attended a park nearby.  Both were intoxicated.  They engaged in sexual acts at a table; counts 1 and 2.  After the sexual penile intercourse the two returned to the party and the complainant said that she had been raped.  When confronted by another party as to the allegation, the applicant denied he had raped the complainant.  The following day the complainant attended the Redcliffe Hospital and later the Women’s Hospital where she was medically examined.

During that treatment at Redcliffe she disclosed the use of cannabis and MDMA in the previous evening.  A complaint was later made to the police.  During treatment at the RBH on 17 September 2021 she had limited recollection of the sexual assault.  I find that to be a crucial factor in this matter because her recollection will be crucial at trial.  The defendant was arrested on 13 December 2021.  Records obtained from the Department of Education, Queensland Health, and from the DPP indicate the complainant has had mental health issues in the past.

The defence submits the subpoenas should be issued.  It is submitted the Court needs to determine whether the records are PCC and then whether they can be used.  It is submitted any version given could be inconsistent or could be preliminary complaint evidence and either way it is probative.  Further, in submissions, it may be there is longstanding mental health issues and the defence may contend for a Bromley direction.  Also, as I already indicated, the recollection of the sexual assault may be the subject of records.  The counselled person opposes the application.  It is submitted it is likely the relevant organisations do hold PCC. 

Whilst it is conceded the credibility of the counselled person is relevant, it is submitted the applicant has not satisfied that the records will have a substantial probative value, referring to section 14H of the Evidence Act.  Section 14A of the Evidence Act defines what a protected counselling communication is.  There is a broad protection for these sorts of communications, as was observed by Judge Fantin in R v JML [2019] QDCPR 23.  If the Court determines the records are likely to be PCC, then it must determine whether a subpoena should be given, and section 14H sets out the relevant considerations to be considered.

In my view, it is for the counselled person to satisfy the Court the documents are PCC, and if so, it is then for the applicant to satisfy the Court that the requirements under section 14H are such that disclosure should occur.  Crucially, section 14M provides the Court may consider a document or evidence to decide whether or not it is PCC.  The Act is curiously drafted.  Section 14M might be thought to be inconsistent with the other provisions of the Act.  In construing the Act, of course, I must have regard to the requirements of a fair trial under the Human Rights Act (section 31).

There is no appellate decision in Queensland on this point.  There are cases such as CDJ [2020] QDCPR 115 and TRKJ v the DPP [2021] QSC 297, in which cases the Court  declined to exercise the power to issue subpoenas.  Having considered those cases, I prefer what Adams J said in NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535 where he said at [4]:

Speaking generally, it is obvious that the section 299D issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called the statutory inquiries.  The practical reality will almost invariably be that the documents have to be examined.

What his Honour says makes sense.  It is very persuasive.  It seems to me it is not possible for a Court to properly exercise its functioning of determining whether documents are PCC and the section 14H factors unless the Court examines the documents.  This must have been the purpose of section 14M.  To the extent I agree with Justice Applegarth in TRKJ, it is within the Court’s discretion on the facts to act under section 14M.

In any event, in this case, considering the provisions of section 14H of the Evidence Act, in light of the facts of this case and the potential for either previous consistent or inconsistent statements to exist, I have decided in the exercise of my discretion to act under section 14M of the Evidence Act to determine whether or not there is PCC, and secondly, the application of the factors mentioned in section 14H.  I am therefore satisfied the applicant has demonstrated that leave should be granted to issue the subpoenas. 

Any other reasons needed at this stage?

MS BRYSON:   No.  Thank you, your Honour.

HIS HONOUR:   Ms Cousen?

MS COUSEN:   No.  Thank you, your Honour.

HIS HONOUR:   Mr Coker?

MR COKER:   No.  Thank you, your Honour.

HIS HONOUR:   Are you happy with these draft orders, Ms Cousen?

MS COUSEN:   Yes, your Honour.

HIS HONOUR:   Orders as per the draft, signed by me and placed with the file.  Thanks very much.