R v Gee[2023] QDCPR 17

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant defendant is charged, by indictment, with three counts of indecent treatment of a child under 16 and three counts of rape (of the same child). 
2. [2]
   By an application apparently filed on 10 November 2022,^[1] the defendant seeks leave, under s 14G of the Evidence Act 1977, to issue subpoenas to the following persons and bodies, requiring them to produce documents that may contain protected counselling communications:

   1. the Department of Education;
   2. the Department of Child Safety, Youth and Women;
   3. Carrum Downs Doctors;
   4. South Eastern Centre Against Sexual Assault and Family Violence (SECASA)
   5. Stephen Barron (psychologist);
   6. Meg Perkins (clinical psychologist);
   7. Donald Emslie (psychologist); and
   8. Dr Thu M Pham.
3. [3]
   The defendant also seeks a preliminary order, purportedly under s 14M of the Act, that the listed persons and bodies produce to the Registrar “any document held by it/them of any oral or written communication by, with, to or concerning [the complainant] without redaction pursuant to the sexual assault counselling privilege.”
4. [4]
   Notice of the application was given to each of the proposed subpoenaed persons and bodies and to the complainant.
5. [5]
   The proceeding has been set down for trial (listed as no 2) in the sittings commencing on 11 April 2022.  The application was therefore made late in the proceeding.  It is unfortunate that it could not be heard earlier, as the trial will not be able to proceed in that sittings if I make the orders sought.
6. [6]
   For the following reasons, I am prepared to order that the defendant have leave to issue some of the proposed subpoenas, but not all.  I am not prepared to order that the persons and bodies to which I will not presently give the defendant leave to issue a subpoena produce documents of the nature described in the application as set out in [3] above.

Background

7. [7]
   The alleged facts on which the Crown proposes to rely at trial were set out in a statement to police made by the complainant on 29 August 2019 and summarised by the Crown in a separate document.^[2]  In brief, the Crown alleges that the defendant was a friend of the complainant’s father.  On a day between 14 September 2006 and 1 May 2007 (when the complainant was 14 or 15 years old), the complainant and her family visited the defendant at his home.  At one stage, while the complainant and the defendant were alone in the kitchen, the defendant kissed the complainant (count 1), put her hand into his shorts and made her hold and rub his penis (count 2) and put his hand inside her shorts and rubbed and inserted two fingers into her vagina (count 3).  Later that day, while they were in the defendant’s swimming pool, he stroked the inside of her upper thigh (count 4), put his hand inside her swimsuit and inserted one or more fingers into her vagina (count 5) and then inserted his penis into her vagina (count 6).
8. [8]
   The complainant reported the alleged offences to the police in 2019, when she was 27 years old. 

The law

9. [9]
   The relevant law concerning protected counselling communications is in division 2A of the Act.  It is unnecessary to set out the relevant sections provisions in their entirety.  It is, however, relevant to note that they are very similar to – and based on – similar provisions that have existed for some time in New South Wales, so decisions of superior courts in that State are likely to assist in the construction of the Queensland provisions.
10. [10]
    The principal purpose of this regime, especially s 14F, is to prevent anyone other than the counselled person and the counsellor having access to the contents of a protected counselling communication except in unusual circumstances.^[3]  That purpose can be overridden only if the court is persuaded that the criteria described in s 14H(1) are satisfied.  That is:

    1. the communication must have substantial probative value;
    2. other evidence concerning the matters to which the communication relates must not be available; and
    3. the public interest in admitting the communication into evidence substantially must outweigh the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm.
11. [11]
    Counsel for the defendant submitted that, in the case of some of the communications the subject of the application, I may not be able to determine if they are, indeed, protected counselling communications without seeing the documents.  In such cases, without giving the defendant leave to subpoena documents recording the communications, I could order that the holder of the documents produce them to the court in order that the court may decide whether they are protected counselling communications and, if so, whether they will have substantial probative value.  That submission was supported by counsel for the counselled person.  Both counsel relied, in this regard, on s 14M(4) and (5):  despite s 14F, the court may make any order it thinks fit to facilitate its consideration of the document or evidence.
12. [12]
    I questioned whether s 14M(4) could operate in this manner as, if the court could order the production of the very records that are the subject of an application for leave to issue a subpoena, that seems to be a way of getting around the strict procedure and requirements that must be satisfied for the court to give leave to issue a subpoena for their production.  Whether under such an order or in response to a subpoena, the holder of the information would be required to produce the documents to the court.  To my mind, that seems contrary to the process prescribed by the division and its purpose, which is to keep confidential counselling communications and thus to encourage the victims of sexual assault to obtain counselling assistance without fear that what is said in that process will be divulged to others.
13. [13]
    The defendant’s counsel submitted that the court is required to make an assessment of the material that would be produced under any subpoena and, in order to do so, the court needs the material before it.  To obtain that material, the court can make orders under s 14M(4) to facilitate its consideration of the documents.  Upon such orders being complied with, the court could relist the application in order to determine whether to give the defendant leave to issue subpoenas for that material, or any of it.
14. [14]
    Counsel for the counselled person referred me to the decision of Applegarth J in TRKJ v Director of Public Prosecutions (Qld),^[4] in which his Honour considered at length the processes and principles applicable to applications of this nature.  His Honour substantially agreed with the earlier decisions of Fantin DCJ in R v JML [2019] QDCPR 23 and Williamson QC, DCJ in R v LFC [2021] QDCPR 60.  In particular, Applegarth J and their Honours considered that the court has power under s 14M(4), separately to the power to give leave to subpoena or use documents under s 14G, to require a person to produce documents to the court to assist it to decide whether the documents contain relevant protected counselling communications. 
15. [15]
    Applegarth J referred to the process of the court ordering the production of documents to itself in order for it to consider whether they are protected counselling communications and then, for any such communications, considering whether to give leave to issue a subpoena, as a staged process permitted by the Act.  However, it is not a process that should be adopted in every case.  It is only where it is necessary, in order for the court to determine whether a communication is a protected counselling communication in the context of an application for leave under s 14G, for the court to look at the documents sought to assist it to determine that issue, that it is appropriate for the court to exercise the power to order that the documents be produced for its inspection. 
16. [16]
    It is important to record that the sole purpose for which the court may order the production of documents is that set out in subsection 14M(2): namely, to decide whether a document is a protected counselling communication.  The production of a document under s 14M cannot be ordered for the purpose of determining whether it will have substantial probative value or public interest issues that may arise under s 14H.^[5] 
17. [17]
    On reflection, although with some hesitation, I do not consider that their Honours’ construction of s 14M in those decisions and the decisions of this and other courts on which their Honours relied is clearly wrong.  In the circumstances, I propose to follow those decisions.^[6]  Therefore, I proceed on the basis that I have the power to make such an order if I consider it necessary in order for the court to determine whether any document is a protected counselling communication.  However, if it is presently clear that a document is or records a protected counselling communication, it is not appropriate to order that it be produced for the court to inspect it, as it is already known to be or record such a communication.  In that case, there is not need to determine whether it is or records such a communication and the power under s 14M(4) has no application.
18. [18]
    The onus is on the applicant, of course, to demonstrate that there are protected counselling communications and, ultimately, that those communications satisfy the criteria in s 14H so that leave may be given to subpoena the holder of the communications.  The applicant will need to provide sufficient evidence to satisfy the court of those matters if he is to obtain leave to subpoena the documents.
19. [19]
    But at this stage of the application, where the court is being asked to compel a person to produce documents to the court to assist it to determine whether there are any protected counselling communications, in my view the applicant must satisfy the court that there are likely to be such communications and that their production to and inspection by the court are likely to assist the court in determining whether they are protected counselling communications.  He does not have to satisfy the court, at this stage, that any such communication will have significant probative value, but I consider that he must at least demonstrate on the evidence that any such communication is likely to have significant probative value.  This is because, whether or not a document is a protected counselling communication, if it is unlikely to have substantial probative value, there is no point in ordering that it be produced to the court.  If both the likely existence and the likely probative value of a communication are not demonstrated on the evidence at this stage, then there is no point in the court ordering the production of any documents.
20. [20]
    Of course, if the applicant, at this stage, has demonstrated that any particular protected counselling communication does exist and that the other criteria in s 14H are satisfied, then the discretion to give leave to issue a subpoena for its production arises and there will be no need to order its production under s 14M.
21. [21]
    I should also add that, even if I form the view that it is appropriate to make such an order, that does not mean that the court will inspect any documents produced to determine whether they are protected counselling communications.  The court is not obliged to inspect any documents for the purpose of determining whether the documents are protected counselling communications and, if they are, whether to give leave to the applicant to subpoena them.^[7]  The court should only inspect the documents where it is persuaded that it is necessary and appropriate to do so.^[8]  Whether it will do so is a decision for the court at the time of their production.  Further evidence or submissions and what documents are produced and by whom may result in the court deciding at that stage that it need or ought not look at the documents. 
22. [22]
    Therefore, I move now to consider whether or not the applicant has satisfied me whether any protected counselling communications exist and, in respect of those, whether the criteria in s 14H are satisfied in respect any of the documents sought and, if so, whether I should give him leave to subpoena them.  If I am not satisfied that a particular protected counselling communication exists, I will go on to consider whether it is appropriate to make an order for the production of any documents under s 14M in order to decide whether a document is or records a protected counselling communication.  It is, of course, necessary to consider those questions separately for each category of documents that the defendant seeks leave to subpoena (and, in the interim, seeks an order for their production).

Existence and relevance of protected counselling communications

23. [23]
    In the course of preparing the case for trial, the defendant’s solicitors obtained a number of documents from the office of the Director of Public Prosecutions or other sources.  They included:

    1. the complainant’s statement to police, in which she said that, after the alleged events, she sought help from a high school counsellor, two psychologists and SECASA;
    2. a note of a conversation with the complainant’s father, in which he said that the complainant had been diagnosed as a compulsive liar and an attention seeker;
    3. a victim impact statement from the complainant, in which she said that, as an adult, she was diagnosed with post traumatic stress disorder and depression and that she had had a diagnosis of attention-deficit/hyperactivity disorder; she started seeing a psychologist in 2019, with whom she was able to “talk it all out”; she was then introduced to a SECASA counsellor who helped her with the same trauma and emotions;
    4. a letter from a psychologist, Dr Stephen Barron, in which he said that he started seeing the complainant in 2019, she has complex post traumatic stress disorder and she had told him that she had previously seen other psychologists and had been diagnosed with other disorders;
    5. records from the Department of Child Services, in which there is a record that the complainant alleged that she was often hit by her mother and that “I lie to protect myself sometimes;”  there is a record of an interview with the complainant’s mother, in which she apparently said that the complainant was often in trouble at school for lying, the complainant had said she lied to make herself sound interesting and because she liked the attention and it made her popular, and the complainant had forged her mother’s signature on a school report to avoid getting into trouble.
24. [24]
    The defendant’s counsel pointed to the assertions in those documents that I have summarised above.  He noted that a number of these documents set out matters that indicate that the complainant has told different people different things, as well as some indicating that she is a compulsive liar and an attention seeker.  These assertions give rise to possible grounds on which the defendant could challenge the complainant’s evidence of the alleged offences.  In particular, inconsistencies between what she has told people on different occasions could be very relevant to her credibility and the reliability of her evidence.  He also submitted that the absence of any references by the complainant to the alleged offences would also be harmful to her credibility.  Therefore notes or other evidence of what she has (or has not) said to the various people to whom she has spoken over the years would be of substantial probative value, as would any records of admissions that she regularly lies to people.
25. [25]
    Counsel for the Crown took a neutral view on the application, although it agreed that the complainant’s credibility and reliability will be paramount considerations for the jury.  In my experience, neutrality tends to be the consistent attitude of the Crown on such applications.  With respect, such an attitude is unhelpful.  As Applegarth J said, whether a protected counselling communication will, itself or having regard to other documents or evidence, have substantial probative value is a matter about which the prosecution, with duties to the court and familiarity with the issues in the pending substantive proceeding, might be expected to assist the court.^[9]  The same might be said about the question whether a document is in fact a protected counselling communication.  With respect, I agree with his Honour and with the decisions of other judges of this court who have consistently criticised this attitude of the Crown’s representatives.^[10]
26. [26]
    The counselled person was also represented by counsel.^[11]  Ms Davie submitted that it is not currently known whether any documents in the possession of four of the services^[12] comprise protected counselling communications and, for that reason, it would be appropriate for the court to order the production of those services’ records to determine that question, provided that the court is satisfied that the documents may have substantial probative value.  On the other hand, the psychologists and counselling services will clearly have protected counselling communications and the production of those documents would assist in determining their probative value and the other criteria under s 14H.  Ultimately, she submitted, the counselled person does not concede that any such communications will have substantial probative value but, if the court considers that further investigation is required, it would be appropriate to make an order under s 14M(4) with leave to the counselled person to inspect them.
27. [27]
    With respect, all counsel did not appear to recognise that the only purpose for which an order under s 14M may be made is to determine whether a document is a protected counselling communication.  The court cannot use any documents produced under such an order to determine the issues under s 14H. 
28. [28]
    At this stage, I must determine, first, whether it is clear that any documents held by any of the services the subject of the application are protected counselling communications, in which case s 14M has no application.  If I am not sure, but any such communications may have substantial probative value, I must then decide whether or not to make an order for their production under s 14M in order to determine whether they are protected counselling communications.
29. [29]
    It appears that the complainant obtained counselling a long time ago from Mr Elmslie and Ms Perkins. However, each of them has already told the defendant’s solicitors that they do not hold any records about the complainant, given the time that has passed.  I am satisfied that they do not hold any protected counselling communications.
30. [30]
    Dr Pham was apparently a general practitioner at the Inala Civic Centre Medical Centre that, I am told, burnt down in 2017.  The defendant’s solicitors have been unable to trace Dr Pham.  It seems unlikely that he would hold any records, given that unfortunate event.  I am not satisfied on the evidence that he did or does hold any protected counselling communications.
31. [31]
    The evidence filed on behalf of the defendant records that notice of this application was served on Carrum Downs Doctors.  In his submissions, counsel for the defendant referred to those doctors as the complainant’s doctor.  He submitted that various parties have referred to diagnoses of the complainant as having ADHD and PTSD and therefore her medical records will be substantially probative and any versions she gave to her doctors (or any lack of complaints to her doctors) would be substantially probative in respect of her credibility and reliability.
32. [32]
    There are several problems with these submissions.  First, there is no evidence (or counsel did not point me to it) that any doctor at Carrum Downs Doctors was the complainant’s doctor.  Secondly, there is no evidence (and no reason to suppose) that any protected counselling communication was made to or by those doctors.  I am not satisfied that any records of those doctors contain such communications.  There is therefore no basis on which to order that their records be produced, nor on which to give the defendant leave to subpoena those records.
33. [33]
    Counsel for the complainant tendered a letter dated 21 July 2010 from one A G Cook (who appears to be a psychiatrist or perhaps a psychologist) to Dr Pham and a note dated 8 July 2020 from Dr Barron.^[13]  Curiously, Dr Barron’s letter is also an open exhibit to an affidavit filed on behalf of the defendant.  According to the deponent, the Crown was provided a copy of the letter by the complainant and then, I was informed from the bar table, disclosed it to the defendant’s solicitors.  There is no evidence that the Crown received the complainant’s written consent to reveal this communication, after she had had an opportunity to receive legal advice, as required under s 14I in order for a complainant to waive privilege over the communication, but I shall assume that such consent was obtained.  But in any event, the letter does reveal that the complainant saw Dr Barron and sought his assistance in 2019 and 2020.  The letter, apart from itself revealing protected counselling communications, also demonstrates that Dr Barron would have records of those and other such communications.  I am therefore satisfied that Dr Barron has protected counselling communications of and relating to the complainant.  This is confirmed by an email from Dr Barron to the defendant’s solicitors, stating that he has no objection to supplying copies of his notes.^[14]
34. [34]
    The complainant said, in her victim impact statement, that she found a psychologist in 2019 (presumably Dr Barron) and she then sought assistance from a counsellor at SECASA.  She said:

With the help from both I came to the conclusion to bring forward the memories I had put far back in the back of my head and didn’t do anything or say anything about it for many years on paper and do my statement to help me take my first steps forward to my closure and hoped to start the healing process for myself.

35. [35]
    This statement satisfies me that SECASA had – and is likely still to have – records of protected counselling communications of and about the complainant.  It is also confirmed by a letter dated 24 February 2023 from a lawyer for SECASA to the court.^[15]
36. [36]
    In her statement to police, the complainant said that she sought help from a counsellor and a psychologist at her high school, Indooroopilly State High, when she was in grades 9 to 11.  That indicates that the Department of Education is likely to have had records of relevant protected counselling communications, which it may still hold.
37. [37]
    The defendant’s solicitor gave evidence that he subpoenaed the Department of Child Safety, Youth Justice and Multicultural Affairs to produce records held by it concerning the complainant.  He exhibited a copy of the records that that department had produced.  Many parts of those records are expurgated.  They do reveal complaints made to the department about the disciplinary conduct of her parents, but not about any sexual abuse.  But, although parts have been expurgated, none of the records indicates that the complainant had interactions with any counsellor (as that term is defined in s 14B).  I am not satisfied that that department has or has recorded any protected counselling communications.
38. [38]
    The result of this consideration is that I am satisfied that Dr Barron, SECASA and the Department of Education have or have recorded protected counselling communications.  That being so, there is no need, nor any basis on which, to order the production of those communications under s 14M.  I am not satisfied that any of the other person or bodies the subject of the application has any such communications. 
39. [39]
    The remaining question, therefore, is whether I should, under s 14G, give leave to the defendant to subpoena Dr Barron, SECASA and the Department of Education to produce their records of those communications.  The first issue in determining this question is whether the records will, whether by themselves or having regard to other documents or evidence produced by the defendant, have substantial probative value.^[16] 
40. [40]
    As I have indicated above, the defendant’s counsel submitted that these records will be of substantial probative value in determining the credibility and reliability of the complainant’s evidence.  He submitted that the records that have been produced reveal allegations that the complainant was a frequent liar, making up dramatic stories in order to attract attention or to gain popularity among her peers; that she had at one stage alleged that she had been digitally raped by an uncle when she was very young; and that she had apparently told Dr Barron that events alleged against the defendant occurred at a time when, according to her police statement, she had not even met him.  He also submitted that, if any of the records show an absence of complaints by the complainant about the defendant, that would be equally probative of her credit and reliability as inconsistencies in her past statements and between those and her evidence in court.
41. [41]
    There is some evidence, in the documents produced, that either the complainant made inconsistent statements about the alleged events or dates, or the person to whom she made statements incorrectly recorded them.  There is also evidence that the complainant has, as a child, told lies or exaggerated events and has later admitted, to differing extents, to lying or exaggerating.
42. [42]
    However, the mere existence of inconsistencies in a complainant’s accounts of events on different occasions is not, of itself or in every case, evidence of substantial probative value.  That phrase suggests more than a mere tendency to impair confidence in the reliability of the complainant’s evidence.  As Judge Cash QC has said, the presence of an inconsistency, a reason to make a false complaint, or some memory, anxiety or similar issue, would not in every case be of substantial probative value.^[17]  Furthermore, the absence of prior complaints to a counsellor abut the defendant’s alleged actions is even less likely to be of substantial probative valu.
43. [43]
    In this case, contrary to the facts before his Honour, there is evidence of possibly inconsistent statements having been made to Dr Barron, at least.  For example, he appears to record that she told him that she met the defendant in 2001, whereas in her police statement she said she met him in 2005.  Dr Barron appears to have been the principal psychologist who counselled the complainant.  The alleged inconsistencies (which may simply be errors of expression or recording of a year in his letter), if recorded in his notes and produced in evidence, combined with the other evidence of the complainant’s alleged lies about other matters, may well have a substantial effect on the jury’s consideration of the credibility and reliability of the complainant’s evidence.  I am satisfied that his records will have substantial probative value.
44. [44]
    Additionally, the records of the counsellors at school, some of whom appear to have been consulted closer to the date of the alleged offences than Dr Barron, when combined with the other evidence to which I have referred, may have a similar effect on the jury’s consideration.  I am satisfied that they will have substantial probative value.
45. [45]
    The same can be said of the records of counsellors at SECASA.
46. [46]
    I note that the complainant appears voluntarily to have provided Dr Barron’s letter to the Crown, presumably expecting that it would be revealed to the defence.  It appears that she provided it at the same time as her victim impact statement.^[18]  Also, in the letter to the Court from SECASA, the author states that it contacted the complainant, who said that she did not oppose the defendant’s application, with the exception of communications relating to or referencing her children.  These matters are relevant to the matters to which I must have regard under s 14H(2) that concern the effect on alleged victims of sexual assault offences of revealing protected counselling communications.  If the complainant is willing to disclose some elements of what she has said in counselling, there is justification for considering that it is fair to the defendant and appropriate that the totality of what she said be revealed and that the complainant will not be harmed by such disclosures.
47. [47]
    In this case, given the evidence on this application, it does seem to me that the full extent of the complainant’s communications to her counsellors are very relevant to the ability of the defendant to make a full defence.^[19]  As I have said, those communications, together with the other evidence of her alleged lies and any inconsistent statements made by her on other occasions, will have substantial probative value as to her credit and reliability.  Furthermore, evidence that the complainant suffered from any psychiatric or psychological disorder may be relevant to her credibility.^[20]
48. [48]
    My conclusion is that the defendant should be given leave to subpoena the records held by Dr Barron, the Department of Education and SECASA concerning any counselling of or statements by the complainant.  Of course, whether anyone other than the complainant and her representatives may see and use any of the documents is a matter to be determined by the court at a later hearing.
49. [49]
    I have been provided draft subpoenas, copies of which were sent by the defendant’s solicitors to each of the proposed subpoenaed persons.  I have some concerns over the breadth of documents sought in the draft subpoenas, which should in my view be limited to the counsellors’ records of statements made by the complainant to them and their advice to or diagnosis of the complainant.  They should not include copies of documents created by other counsellors or persons, nor of communications with other persons, which themselves would be hearsay (and possibly hearsay on hearsay) and would not be of substantial probative value.  Nor should they require the production of “complete files”.  I shall discuss with counsel the appropriate content of the subpoenas and will annex a form of wording to my formal order.
50. [50]
    I will, of course, order that the complainant and her legal representatives be permitted to inspect and take copies of any documents produced to the court in answer to the subpoenas.  Thereafter, the parties should take the steps toward the hearing of the application for leave to inspect and use the documents that are provided for in Practice Direction 5 of 2021.
51. [51]
    Otherwise, I refuse the application for an order for production of documents or for leave to issue subpoenas.  The application will be adjourned to a date to be fixed for the next stage of the process.