R v TJ[2023] QDCPR 21

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant/defendant is indicted before the court on three counts of indecent treatment of a child under 12 and under care, each alleged to be committed against the same complainant (his niece) between 31 March 2000 and 1 May 2000, at Maroochydore. 
2. [2]
   He applies pursuant to s 590AA(2)(ka) of the Criminal Code and s 14G of the Evidence Act 1977 for leave to:

1. “a.
   subpoena ‘protected counselling communications’;
2. b.
   produce to a Court, adduce evidence of or otherwise use ‘protected  counselling communications’; and
3. c.
   otherwise disclose, inspect or copy ‘protected counselling communications’.”

3. [3]
   It is to be noted that the application is therefore reflective of the operation of s 14F of the Evidence Act, which provides for a form of qualified privilege attaching to protected counselling communications by providing that a person cannot do any of the things articulated in the defendant’s application “in connection with the proceeding, other than with the leave of the court hearing the proceeding”. The content or meaning of the reference to “proceeding” is provided in s 14E, relevantly for present purposes, in providing that the subdivision applies to a proceeding “for the trial or sentencing of a person for an offence other than a proceeding to which subdivision 2 applies”.^[1]
4. [4]
   Here, what is identified as the protected counselling communication (“PCC”), which is the subject of the application, is the records held in respect of the complainant’s consultations with two psychologists including “counselling communications, notes, referrals and appointment records”. Whilst it may be conceivable that some parts of the records included within that description may not be PCC, axiomatically and as becomes clear in discussing the underlying basis of the application, the defendant seeks access to PCC, having regard to the definitions of “protected counselling communication” in s 14A of the Evidence Act and the definitions of “counsel”, “counselled persons” and “counsellor” in s 14B.  For present purposes, it is only necessary to note the following, from s 14A:

“(1) a protected counselling communication is an oral or written communication made in confidence —

1.  by a counselled person to a counsellor; or

…

4.  a reference in this division to a protected counselled communication includes a reference to –

1.  a document to the extent it contains a protected counselling communication; or

2.  evidence to the extent it discloses a protected counselling communication.”

Accordingly, no issue arising under s 14M of the Evidence Act is raised for determination.

5. [5]
   The requirements of s 14G, in respect of notification of the making of the application, have been satisfied and in respect of this application, no objection was raised to the legal representatives of the counselled person being heard in respect of the application of s 14H of the Evidence Act.^[2]  Although the defendant’s application was filed on 11 November 2022, it is not in contest, having regard to the definition of “proceeding” in Schedule 3 of that Act, that this commenced on 16 March 2023 when the evidence to be relied upon in the determination of this application was read and identified and therefore placed before the Court for the determination of the application.
6. [6]
   Therefore, and although expressed in wider terms, the application can only, at this stage, be one for leave to subpoena the identified records, so as to overcome the effect of s 14F in preventing the production to a court of PCC, except by grant of leave to do so.  Such leave can only be granted in accordance with the provisions of s 14H which relevantly provides:

1. 14H
   Deciding whether to grant leave

1.  The court can not grant an application for leave under this subdivision unless the court is satisfied that—

1.  the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and

2.  other documents or evidence concerning the matters to which the communication relates are not available; and

(c) the public interest in admitting the communication into evidence substantially outweighs the public interest in—

1.  preserving the confidentiality of the communication; and

2.  protecting the counselled person from harm.

2.  In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters—

1.  the need to encourage victims of sexual assault offences to seek counselling;

2.  that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;

3.  the public interest in ensuring victims of sexual assault offences receive effective counselling;

4.  that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;

5.  whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;

6.  that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;

7.  the extent to which the communication is necessary to enable the accused person to make a full defence;

8.  any other matter the court considers relevant.”

The application

7. [7]
   It is alleged that the indicted offending occurred when the complainant would have been aged 11.  The defendant is the complainant’s uncle by marriage and it is alleged that the offending occurred on consecutive days when the complainant was staying at a holiday location with the defendant’s family at Maroochydore.
8. [8]
   The police investigation leading to the charging of the defendant did not occur until decades subsequently.  The evidence before the Court on this application is that no later than 18 December 2019, there was a notation of the complaint in police records.  This then led to a course of events by which a formal statement was taken from the complainant on 27 December 2019.  It is that statement which has provided the basis of the charging and indictment of the defendant.
9. [9]
   In the context of the legislative provisions to which reference has been made, the defendant seeks access to the records relating to what has been identified as the complainant’s engagement with two psychologists, identified as:

1. Nina Camitsis, the Cove Consulting Suite; and
2. Ms S Symes, Pinwheel Psychology.

The records obtained by the defendant from Medicare indicate that consultations with:

• Ms Camitsis occurred respectively on 20/12/19 and, 17/1/20, 8/2/20, 15/2/20, 22/2/20, 29/2/20, 31/10/20, 14/11/20, 28/11/20, 12/12/20 and 29/12/20; and
• Ms Symes on 3/11/14, 10/11/14, 17/11/14, 28/11/14, 5/12/14, 8/12/14, 19/12/14, 5/1/15, 28/1/15, 16/2/15, 22/2/16, 1/4/16, 22/4/16, 10/6/16 and 25/10/16.

10. [10]
    Although this application was approached by the applicant and proceeded in reference to the application of s 14H from the outset, rather than in the manner recently expressed as a preferred approach in R v Yorkston,^[3] it is necessary to record why such a divergent approach to the application of this legislation was not and should not have been adopted in this or any such application.
11. [11]
    In doing so, it is to be noted that the divergent approach identified in Yorkston was without any particular reasoning apart from an expressed preference for what is noted below as a later contradicted expression of view of a single judge in relation to the equivalent legislation in New South Wales.  However, what is apparent is the expression of an approach which seeks to deal pragmatically with what must be recognised as the inherent difficulties of the legislation which this Court must apply, but it is not the preference of the legislature.  An essential difficulty is the application of a singular test as set out in s 14H to the panoply of circumstances to which the qualified privilege enacted by s 14 applies and because that singular test is made applicable despite the obvious differences in considerations which may be applicable to differing circumstances.
12. [12]
    Quite apart from what remains my view, as explained in R v CDJ,^[4] as to the inappropriateness of an assumption that the documents in issue should be unilaterally inspected and considered by a judge, at all, let alone as a regular practice, it was also noted in that case that the view expressed by Adams J in NAR v PPC1,^[5] was to be seen as influenced by a different legislative context^[6] and was not in any event to be seen as a uniformly expressed view as to the approach to be taken to the New South Wales legislative scheme.^[7]  In particular and in the subsequent decision of the Court of Criminal Appeal in Rohan v R,^[8] it accepted that even in the different legislative context of what had been otherwise interpreted as an expressed legislative power to do so, a primary judge had been correct to refuse leave to subpoena the records, despite not having considered them. It was also expressly pointed out that the observations of Adams J stood alone as not being endorsed or supported by the other judges constituting the court in NAR v PPC1 and were only referred to with approval in ER v Khan,^[9] in reference to “the task of a judge examining a very large number of documents in order to determine whether they contained protected confidences” and not “endorsing what Adams J had said about a process that should be undertaken in relation to an application for leave to issue a subpoena”.^[10] This led to the expression of the following conclusions in R v CDJ,^[11] as to the assistance to be derived from Rohan, being in particular that:

“(a) the decision that s 229B of the CP Act provides a discretion rather than mandate for the court to consider the documents; and

2.  the obvious lack of support for the observations of Adams J.”

13. [13]
    As earlier discussed in R v CDJ,^[12] the Queensland legislation does not include any provision having the determined effect of s 299B of the Criminal Practice Act 1886 (NSW).  On the contrary and leaving aside the expressly limited application of s 14M(2) in providing a discretion “to consider a document to decide whether it is a protected counselling communication”, the fundamental difficulty in any approach to the effect that the first step is to have the documents produced to the court, to be available to be inspected so as to make the necessary assessment pursuant to s 14H, is that the legislation expressly precludes it.  As s 14F provides:

“14F Sexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding, other than with the leave of the court hearing the proceeding—

1.  compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;

2.  produce to a court, adduce evidence of or otherwise use, a protected counselling communication;

3.  otherwise disclose, inspect or copy a protected counselling communication.”

It is therefore, in respect of any application for the granting of any such leave, necessary to first consider the application of s 14H to the question of access to the documents including, in terms of the production of the documents to a court.  The effect of s 14F may be clearly discerned to be directed, in the first instance, at any access to the protected counselling communication, which in the possession or control of another, and secondly at any use of it in connection with the proceeding, being the prosecution of the defendant before the Court.  And further necessary to note that the effect of s 14H(1) is that such leave “can not” be granted “unless the court is satisfied of each of the criteria set out respectively in subparagraphs (a), (b) and (c).  There is simply no warrant for avoidance of the question posed in s 14H(1) in respect of any order allowing the production of the PCC in issue, to any court.

14. [14]
    It should be observed that to the extent to which there was any endorsement of any different approach in TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors,^[13] it was understandably expressly limited to “occasional cases where the court’s own inspection and evaluation of the material will assist the court in a finely-balanced case to determine the question of leave”.  It is also to be noted that this view was expressed in respect of an examination of the earlier decision in R v LFC,^[14] in determining that “the subject matter, scope and purpose of the legislation did not support the view that the court is precluded from reviewing the material that is the subject of an application for leave” and that the scope of the provision in s 14H(2)(h) “was wide enough to permit consideration of the material that is the subject of the application for leave”.
15. [15]
    It is of importance to understand that in R v LFC, those observations were made in the context that the application there had been permitted to effectively become one in respect of the use to be made of the documents which had been previously produced to the court.^[15]  Although there is reference to the prior order being made pursuant to s 14N “requiring the PCC to be produced to the court …. [t]o facilitate the hearing and determination of the defendant’s application”, there is no explanation as to how that could and appropriately did occur, without the s 14H(1) criteria being addressed, let alone satisfied.
16. [16]
    For present purposes, it may be noted that without the grant of such leave, the effect of s 14F prevents any access to PCC in respect of the relevant proceedings.  However, it is also directed at preventing the use of such material in respect of a relevant proceeding.  Clearly and where a defendant does not already have access to such material, it is the application of s 14F to that desired access which must first be addressed. Logically differing considerations may arise.  However, the test to be applied is stated in singular terms and it is to be noted, in the first criterion in s 14H(1)(a), in terms that the PCC “will … have …. substantial probative value”, which may be discerned to be concerned with some use to be made of it.  And the ultimate criterion in s 14H(1)(c) is expressed in terms that:

“the public interest in admitting the communication into evidence substantially outweighs the public interest in-

1. preserving the confidentiality of the communication; and
2. protecting the counselled person from harm.”

17. [17]
    The evident purpose is discernible as allowing for a determination of the court in balancing those competing public interests “in admitting the communication into evidence”.  The public interest in “protecting the counselled person from harm” may be informed by the provision of a statement of harm pursuant to s 14H(3), addressing the definition of “harm” in s 14H(8):

1. “(8)
   In this section—

harm includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation.”

Otherwise and in addressing the issue or criteria stipulated in s 14H(1)(c), the mandate in s 14H(2) is that the court must have regard to a number of specified matters, most of which serve to presumptively inform the consideration of the “public interest in  … preserving the confidentiality of the communication”.  It is to be noted that despite the criterion in s 14H(1)(c) being directed at the admission of the PCC into evidence, these matters are more broadly expressed as being capable of application to issues of access to PCC at all, including by the court.  The obvious difficulty and one which demands a pragmatic response of this Court is that a test which is ultimately directed at the actual use which could be made of the PCC, in terms of evidential value is a challenging one to apply when the question is as to access to material, the actual contents of which are unknown, but which may otherwise be demonstrated to be of such potential value.

18. [18]
    However, the legislative scheme in terms of purpose, scope and effect, is not to prevent access to and use of all probative or potentially probative material but rather is to limit such access and use, albeit it may be said to a severe extent.  Some pragmatism is justified in order to make to the scheme workable, in the context in which it is intended to operate.  That is, as part of and in accordance with the usual processes of the court in respect of proceedings on indictment, provided that due regard is had to the application of the particular statutory constraints.  In that sense, it is necessary to understand that these provisions do not replace the ordinary processes to be applied but rather place particular restraints upon them.^[16]
19. [19]
    Accordingly, and in cases like the present and where leave to subpoena the PCC is required, that is the issue to be addressed at the outset.  Further and because s 14F(c) operates to further limit any access to such material in terms of disclosure, inspection or copying and s 14F(b) operates to further limit production to a court, adduction into evidence and use otherwise, there must necessarily be a staged approach as to these several separate issues, as they may arise.^[17]  At this stage, the concern in this matter, is in respect of the initial stage and as to whether there is to be leave to subpoena the PCC.  That is, leave to engage the process of the court to compel the holder of the information to deliver it into the possession and control of the court.^[18]
20. [20]
    Necessarily the enquiry at this initial stage, must be a prospective one.  That is, without knowledge of the actual contents and therefore the precise evidential value of any PCC to which access is sought.  Such an application will necessarily depend upon the available contextual information but there must be presentation of a basis for satisfying the statutory constraint which applies even to access such information.  And this must be done in the context of the application of tests that are designed to allow for the prospect of them being satisfied, as opposed to the imposition of an absolute privilege, as is effected by s 14D.
21. [21]
    In the first instance, the requirement is that the court be “satisfied that …. the [PCC] the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value”.  In applications of this kind, this is likely to be a very substantial fetter or bar to a successful application.  And clearly cannot be expected to be overcome by contentions which are simply speculative or anticipatory of what the PCC might contain. For instance, and in this case and putting aside the contentions made for the applicant as to the likely disclosure of evidence of preliminary complaint, it is clearly not sufficient, as the applicant otherwise contends, that there should be disclosure of material “to the extent it contains:

1. “a.
   Detailed versions of events in relation to the allegations;
2. b.
   Information that would tend to suggest a motive to lie; and
3. c.
   Information relating to any EMDR or other hypnosis type therapy, along with notes regarding the administration of such therapy including its parameters.”^[19]

22. [22]
    It is only necessary, before dealing with the contentions as to the prospect of disclosure of evidence of preliminary complaint, to note that in support of the contention relating to the use of hypnosis therapy, the applicant produces and refers to the Director of Public Prosecution Guideline: No. 27, “Hypnosis and Regression Therapy”.^[20]  That guideline is directed at stating conditions for reliance upon the evidence of a complainant who has been involved in any such therapy, with particular focus upon the independent establishment of evidence of prior recall of the matters the subject of the evidence.  Relevantly, the guideline provides:

“This guideline concerns the evidence of any witness who has undergone regression therapy or hypnosis, including eye movement and desensitisation reprocessing.  Evidence in breach of this guideline is likely to be excluded from the trial.

Where it is apparent to an investigating officer that a witness has undergone counselling or therapy prior to the provision of his or her witness statement, the officer should enquire as to the nature of the therapy.  If hypnosis has been involved, the witness’s evidence cannot be used unless the following conditions are satisfied:-

.…

The fact that a witness has been hypnotised will be disclosed by the prosecution to the defence, and all relevant transcripts and information provided to the defence well in advance of trial in order to enable the defence to have the assistance of their own expert witnesses in relation to that material.

Prosecutors will not seek to tender such evidence unless the guidelines are met.  Police officers should therefore make the relevant enquiries before progressing a prosecution.”

23. [23]
    The difficulty here is that there is no evidence suggestive of the engagement of any hypnosis or regression therapy and it is simply speculation that it may have occurred.  That problem is amplified in understanding that:

    1. The prosecution concession on the application was that, contrary to the director’s guideline (which it was contended to be understood to be subject of review in this context), it was simply not known whether or not the complainant has engaged in any such therapy.  That was explained to be because of what would appear to be an extreme or doubtful view, that to make the enquiry is to request the disclosure of PCC; and
    2. No request for disclosure of any such information has been made by the defence, pursuant to s 590AJ of the Criminal Code or otherwise.
24. [24]
    It is simply not the role of the court to become inquisitor or to seek to investigate any such issue.  If it is to be pursued, then it may need to be prepared as an application pursuant to s 14M, in the first instance.  As has been noted, that was not the defence approach here and neither has the position been assisted by any particular request that the position be clarified by the DPP. 
25. [25]
    In any event, it is unnecessary to delay upon this most unsatisfactory imbroglio, due to determination of the main thrust of the application, as it relates to evidence of preliminary complaint.

Preliminary complaint

26. [26]
    An understanding of the applicant’s reliance upon a connection of this evidence of the complainant’s engagement in therapy with such psychologists, to preliminary complaints made by her, is to be understood in the following context, as derived from the available evidence:

    1. the complainant states that after the conduct which is the subject of the charges occurred, in August or September of that year (2000) and on an occasion when they were holidaying on a camping trip to Stradbroke Island, she told her older sister words to the effect that the defendant “had touched me” and asserts that her sister’s response was in terms of her saying:

“He told me he would never do that to you. We can’t tell mum”. 

It is to be noted that the statement obtained from her sister provides support for that contention only in terms that she states that she recalls a conversation that occurred in respect of the defendant and describes it as being an unusual conversation but without recall of the specifics of it.  She otherwise specifically asserts that she “has no recollection of [the defendant] acting inappropriately to her”.

2. The complainant describes that when she was in her 20’s she had a flashback memory while walking with a friend and she told her friend: “I have been abused as a child”.  That friend states that she recalls being at university together with the complainant from 2008 and recalled a conversation where the complainant said something about some type of sexual abuse but could not recall any other detail.
3. The application proceeded upon the basis that a document produced and identified by the respondent as “the complainant’s typed notes prior to police statement” is a document prepared by the complainant and provided in conjunction with the provision of her statement to police.  In that document, which may be noted to be prepared in the first person and having the distinct appearance of being prepared by the complainant, the following is recorded as to the prior disclosure of her allegations:

“I told my sister what happened to me, and I remember she said to me, ‘He told me he’d never do that to you’.  I told her that we had to tell Mum, but she said, ‘Don’t tell Mum’.

I didn’t tell anyone until I got older, when I was 16 I had a friend who had been abused, and I told her that I had been abused too.

I told an ex-boyfriend after we had sex and he said, ‘why would you tell me that?’.

My main trigger was when I was working in mental health at with an adult who had been abused as a child. I found it very hard to write a report and was encouraging her to report to police when I started realising that I needed to get help regarding my own personal experience.

I got help from a counsellor, from CityCare in Sydney on Danks St.

I told my parents when I was 25.

I talked to a psychologist, Samantha Symes, in Sydney.

I told some pastors from my Church …

Around four years ago I saw the person that abused me, and told him that I forgive him.” ^[21]

27. [27]
    Not all of that recorded history of prior disclosure found its way into the complainant’s police statement.  However, that statement does contain the assertion:

“I didn’t tell my mother until I was around, 25 years old, because my sister asked me not to.  I also just spoke broadly to mum, she knows I was sexually abused when staying with Uncle [TJ] and Aunty [J] on a family holiday. I have not told her specifics, but she was also present when I fronted Uncle [TJ] when Aunt [J] and mum at their house. I would have been about 26 when I did this. We were all sitting in the lounge at their house in Bracken Ridge.”^[22]

It is to be noted that the complainant turned 25 in 2014 and she otherwise notes that it was in the same year that her paternal grandmother passed away that she told her mother and she describes:

“I remember when my grandmother passed away I hadn’t told my mother anything yet.  My Uncle and Aunt attended the funeral and I had anxiety after seeing him.  At the funeral he sat next to me and he made me feel quite uncomfortable.  I was sitting on my own and he came and sat too close and right next to me, he was like creepy.”

The complainant also states that “it was towards the end of the year that my grandmother died, that I told my mum”.  She also recalls that in the following year her paternal grandfather passed away and that she was “receiving counselling by this time…”  She says that she was anxious leading up to her paternal grandfather’s funeral because of the defendant’s behaviour at the last funeral and this resulted in her asking her father to contact the defendant and request that he not attend the funeral.  She recalls that the defendant did not attend that funeral. 

28. [28]
    The complainant also refers to there being a disclosure made by her to another Aunt, at that funeral and in the context of the absence of the defendant at that funeral.  She refers also to a conversation enquiring about a suspicion of something happening to her older sister as well and also to a conversation with her older sister about three or four years before December 2019, when her sister expressed annoyance at any disclosure she had made suggesting that her sister may have been raped.  In her statement, the complainant says:

“From the funeral it just seemed the family were all aware of something happening between Uncle [TJ] and I”.

29. [29]
    She says that around six months later, her mother called the defendant’s wife to arrange to speak with the defendant and that subsequently she and her mother attended at their house, that the four of them were in the lounge together and as she describes:

“I simply looked at him and said ‘I forgive you for what you did to me’. He looked at me, he appeared to well up, by that I mean became teary, and said, ‘thank you’.”

She further states:

“I remember we didn’t elaborate, I had said what I needed to say to him, in front of those that needed to hear what I had to say, and I just got up and mum followed and we left.”

The complainant’s mother confirms her recollection that sometime after Christmas 2015 and before January 2018, she and her daughter went unannounced to the defendant’s house.  She recalled sitting in the loungeroom together with the defendant and his wife and recalled her daughter saying, “I forgive you”.  She says that she doesn’t remember anything further happening or the defendant’s response and says, “I don’t think anything much more was said”.

30. [30]
    It is not difficult to conclude that there is an expectation that there will be, in the records sought from Pinwheel Psychology, documents containing or evidencing communication in the nature of preliminary complaint and also that the records of the Cove Consulting Suite, is most likely to fall into the same category, up to 27 December 2019.
31. [31]
    Such evidence is admissible pursuant to s 4A of the Criminal Law (Sexual Offences) Act 1978, which by s 4A(1) applies “in relation to an examination of witnesses, or a trial, in relation to a sexual offence”. In particular, pursuant to s 4A(2):

“(2) Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.”

 In s 4A(6), “preliminary complaint” is effectively defined to mean “any complaint” made prior to the “complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence”. Further, there is the definition: “complaint includes a disclosure”.

32. [32]
    Accordingly, the effect is to make any and all disclosures made by a complainant about the alleged commission of any sexual offence, prior to giving the first formal police statement, admissible. However, such hearsay evidence is not admissible to prove the truth of what is asserted but rather as being relevant to the credibility of the complainant’s evidence because of what may or may not be demonstrated as consistency of conduct by her, including as to what was said on the occasions when such disclosures were made. That is because it is evidence of “how and when” such disclosures were made, which is made so admissible.
33. [33]
    It is not therefore, as so often tends to be the contemporary focus, not just an exercise in the examination of the evidence of a number of witnesses, including the complainant, as to their recollection of what was precisely disclosed, or not, by the complainant, often years or many years previously and therefore fraught with the difficulty of the fallibility of human memory. Rather the issue remains as to what may be made, in an actual factual sense, as to consistency or inconsistency of conduct in the emergence and making of a complaint, as is the express subject of assistance in the explanatory notes for the introduction of s 4A,^[23] as follows:

 “Clause 40 inserts a new section 4A (Evidence of complaint generally admissible) which abolishes the special rule relating to “recent complaint” evidence.

The recent complaint rule says that, in sexual offence cases, evidence of complaint (how, when and to whom the person first complained) is only admissible where the complaint is recent, that is, when it is made at the first reasonable opportunity. The judge must also direct the jury that a recent complaint supports the evidence of the complainant as it is consistent with the conduct complained of, and a delayed complaint is therefore more likely to be false. This direction is required because of cases such as Kilby v The Queen (1973) 129 CLR 460, in which the High Court assumes that a delay in complaint by a person who has been sexually assaulted is inconsistent conduct and therefore adversely affects the complainant’s credibility.

The rule is based on the expectation that a victim of a sexual offence should or can complain at the first opportunity. It assumes that as a matter of human experience, victims of sexual assault will complain promptly of the assault. The available evidence suggests that, especially in relation to child victims, and for a variety of reasons, an early complaint is not necessarily to be expected, and many genuine victims will never make a formal complaint.

The assumption behind the rule has been criticised by many eminent Judges. Criticisms include that the rule does not accord with the reality of sexual offence complainants, especially children, and that the law has no special insight into the behaviour of victims of abuse, such as to justify the mandatory nature of the direction.

As well, courts recognise that it is of assistance to juries to know how and when any complaint about the conduct of the accused first emerged, regardless of when the complaint was made.

Despite these persuasive opinions, the rule remains part of the common law and can only be changed by legislation.

Section 4A makes two significant changes to the law. Firstly, it makes evidence of complaint admissible in sexual offence cases, regardless of when it was made. Secondly, it prohibits a judge from instructing a jury that the law regards the evidence of a complainant to be more or less reliable based only on the length of time between the commission of the offence and the making of the complaint.

In particular, section 4A is intended to reflect the comments of Thomas JA in R v S (1998) 103 A Crim R 101, at 105, about the admissibility and relevance of complaint evidence –

In my view it would assist any jury in a case involving a sexual complaint to know how and when any complaint about the conduct of the accused person first emerged. Evidence of this kind is pivotal to explaining how the complainant comes to be in the witness box and the accused in the dock. An assessment of the truth of the complaint can hardly be attempted without some knowledge of how it first saw the light of day. It is my view that evidence of first complaint should always be receivable in cases involving sexual misconduct, as evidence which permits a better understanding of the story, irrespective of when it was made. To say that an early complaint is merely a bolster, or a later complaint a drawback to the complainant’s credibility is an oversimplification. The circumstances of first emergence of the complaint may enable the story to be seen in a different light. To take just one of the factors involved in relation to such a complaint, the identity of the person chosen by the complainant may give an insight into the complainant’s motivation. For example if it is made to a member of a peer group or a person from whom a complainant arguably might try to gain attention, some circumspection might be called for. This, if added to other features, might in the circumstances of a particular case raise reasonable doubt that the complaint may have been an irresponsible one and that the complainant become locked into it, or unwilling to withdraw it when further steps were taken in consequence of it. Conversely, in a family with a dominant father or step-father, and an apparently selfish or weak mother who is dependent upon the financial support of the male in the household, it might be easy to accept that a molested child sees no point in sharing her misery with her mother. Such factors in my view are often far more telling than the single circumstance of recency or lateness.

Unfortunately I do not think that the authorities on this question permit it to be said that the above views currently represent the law. The rules concerning evidence of recent complaint are still fairly rigidly tied to their historical origins and the requirement of recency has recently been affirmed by the High Court as a criterion of the admissibility of such evidence.

Section 4A also makes it clear that nothing in the provision derogates from the power of a court in a criminal proceeding to exclude evidence if it is satisfied that it would be unfair to admit the evidence, nor does it preclude the making of any other comment that is required by law or that it is appropriate to make in the circumstances of the case.

It is not intended that judges should be prevented from identifying to juries any prejudicial effect on a defendant because of a delay in complaint (such as an inability to call alibi evidence), or in pointing to any deficiencies in a complainant’s evidence occasioned by delay. Such directions are required by cases such as Longman v The Queen (1989) 168 CLR 79.

What the court cannot do is suggest that the law regards a complainant to be more or less reliable based solely on the timing of the complaint, without consideration of the facts of the particular case.”

34. [34]
    Accordingly, it may be seen that fundamentally this legislative intervention into the law of evidence was to negate an approach based upon legal presumption as to the presence or absence of recent or prompt complaint.  It was not directed at, nor did it have  effect to prevent factual examination of the significance, as far as it may relate to the creditability of a complainant, of how and when a preliminary complaint was made.  Therefore, it does not serve to deny, in a factual sense, the logical potential significance of a genuine and prompt complaint, in support of a prosecution case.  Nor, as is expressly noted by reference to the observations of Thomas J, the potential for the circumstances of the making of a preliminary complaint to potentially detract from the credibility of a complainant.
35. [35]
    Secondly, the effect of change in the law was to make evidence of all such disclosures admissible, thereby engaging the expectation that such evidence is led in the prosecution case and consistently with the obligation of a prosecutor, in the interests of securing the fair trial of a defendant, “to present all available cogent and admissible evidence”.^[24]  It is recognised that there may be countervailing considerations to that obligation,^[25] but specific endorsement was given to the following observations of Fullagar J in Ziems v Prothonotary of the Supreme Court (NSW);^[26]

“Fullagar J observed the rule in criminal cases to be that ‘the prosecution is bound to call all the material witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury’.”

It may be observed that prior to the advent of s 4A, the application of that principle, in this context, was necessarily limited to the adduction of evidence of prompt or recent complaint, as the only evidence admissible in the prosecution case, with it being for the defendant to establish any other contended inconsistent conduct on the part of the complainant and any relevant prior inconsistent statement to the testimony of that witness.

36. [36]
    In this instance, the prosecution response to this application accepts the premise that to the extent that the disclosures made by the complainant to the psychologists may be preliminary complaint, such evidence would be admissible and therefore within the ambit of the prosecutorial obligation or duty.  However, the response is premised on an understanding that the countervailing consideration is that which arises under the provisions relating to “sexual assault counselling privilege” in Division 2A of Part 2 of the Evidence Act 1977.
37. [37]
    So much may be immediately accepted, as far as the application of the absolute privilege established by s 14D is concerned.  But it is a problematic issue as far as the qualified privilege established by s 14F is concerned.  It may be expected that quite apart from the overriding prosecutorial obligation in respect of securing a fair trial of a defendant, the proper and effective presentation of a prosecution case would drive particular interest in what might be expected to be evidence of a prompt or recent complaint to a counsellor.  Consistently with the underlying purpose of the provisions relating to any such PCC, the legislation allows, by s 14I, in limited circumstances, that the privilege may be waived by the counselled person.  And more fundamentally, it is clear that s 14G(1) allows for an application to be made by the prosecutor.
38. [38]
    However, and in all other cases where there is an expectation that there is evidence of preliminary complaint which is PCC, the issue is as to the satisfaction of the criteria in s 14H and it is to that extent only, that there may be discerned to be any fetter upon the prosecutorial obligation and therefore the absence of any expectation that, leaving aside instances of prosecution application pursuant to s 14G, there would necessarily be opposition to a defendant’s application.  In particular and as was noted in Nguyen in the context of exhortation against notions of selectivity and tactics intruding into the prosecutorial obligation, it was observed that:

“… A prosecutor must determine the course ‘which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused’. This, the Court said, is what is meant by prosecutorial ‘discretion’”^[27]; and

“… As Dawson J said in Whitehorn, the prosecutorial obligation to call all witnesses is but an aspect of ‘the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused.’”^[28]

39. [39]
    In other words, it may be observed that the proper exercise of the prosecutorial function in respect of the proceeding before the Court upon the indictment is not curtailed or determined by the application of s 14F. Rather, it is only constrained to the extent of the application of s 14H.

Application of s 14H

40. [40]
    The combined effect of s 14F and s 14H is to present a high bar to the parties to a proceeding such as this, upon the indictment before the Court. Moreover, the immediate effect is in respect of their access to, as well as use of PCC, in respect of the proceeding. However, the effect is to restrict rather than prevent such occurrences, albeit to a discernibly considerable if not severe extent.
41. [41]
    Leaving aside the ultimate balancing exercise required pursuant to s 14H(1)(c), for the moment, it can be observed that in this instance the prosecution submissions were in unison with those for the counselled person, in particular focus upon the criteria in s 14(1)(a) and (b). In essence, they were that, to the extent to which the application might extend beyond speculation or conjecture as to what may be in the documents which are sought and, as I have otherwise concluded,^[29] presents an expectation that there will be evidence of preliminary complaint in these documents, emphasis is placed upon both the requirements in s 14H(1)(a) of “substantial probative value” and in terms of that probative value being in its capacity as evidence of preliminary complaint, upon s 14H(1)(b) and the contended availability of other evidence of that kind.
42. [42]
    It may be noted that the concept of substantial probative value was discussed in R v JML,^[30] in terms which included the formulation of lines of cross-examination to suggest the unreliability of a complainant.  More particularly in TRKJ,^[31] it was observed:

“[23] I have highlighted the words ‘substantial probative value’ because this is the requirement for leave that the applicant in each matter was found to have not established.  I also have highlighted the words ‘will have’ in s 14H(1).  As Fantin DCJ observed in R v JML, the use of ‘will’ rather than ‘may’ means that the statutory condition is not satisfied by the mere possibility that the protected counselling communication has a ‘substantial probative value’.  The use of the word ‘substantial’ indicates that it is not sufficient if the communication has some probative value or will provide some legitimate forensic advantage.

[24] I respectfully adopt what was said by Fantin DCJ in R v JML about the meaning of ‘probative’ and that the question of whether evidence is probative and has ‘substantial probative value’ can be determined only by an analysis of the facts in issue in the proceeding.  Her Honour wrote:

‘That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability.  It also requires consideration of the process of reasoning by which information as to the fact could rationally affect the assessment of the probabilities.  In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the Jury’s assessment of the probability of the existence of a fact in issue at the trial. There must be a logical connection between the evidence and the fact in issue.’

[25] The words of s 14H(1)(a) serve to emphasise that the question of whether the protected counselling communication has substantial probative value is not to be viewed in isolation.  The issue is whether the communication will ‘by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value’.”

However, it is to be noted that there is no endorsement of the further observation, in JML,^[32] that although the word “substantial” may have different meanings “ … in the context in which that expression is used, the adjective ‘substantial’ connotes very important, ample or considerable”.

43. [43]
    This issue was not the subject of any express consideration in the submissions made on this application and it is only necessary to make clear the basis upon which the Court will proceed in determining this application. For my part, I am hesitant to adopt the particular meaning of “substantial” identified in JML, as appropriate and it suffices, in terms of the observations in TRKJ, to note that the determination will be upon the basis that what is required is more than a determination that the “communication has some probative value or will provide some legitimate forensic advantage”.
44. [44]
    In the first instance it may be observed that reference to the Macquarie Dictionary (Fifth Edition) does indeed confirm the possibility of many shades of meaning. It suffices to note and contrast the first, second and sixth meanings which are recorded:

1. “1.
   of a corporeal or material nature; real or actual.
2. 2.
   of ample or considerable amount, quantity, size, etc: a substantial sum of money
3. 6.
   of real worth or value: substantial reasons.”

 The difficulty in attempting to prescribe anything more than a sense of minimal requirement, is in begging a question as to what degree of qualification, in terms of importance or amount or ampleness or size or worth, will suffice and the prospect of variable application of a standard. It is to be noted that the same word is used in s 14H(1)(c), in qualification of the balance to be achieved and there is an evident difficulty of introducing an ill-defined concept of degree, unless the concept is in describing a minimal position, such as being real and actual or of real worth or value, as opposed to being merely arguably or barely established. Moreover and by some analogy, such an approach is consistent to that taken to the phrase “substantial relevance” in rule 3 in s 4 of the Criminal Law (Sexual Offences Act) 1978. For instance, in R v Starkey,^[33] it was observed by Connolly J, that:

  “Rule 4(a) would thus not preclude the granting of leave on the footing that the evidence sought to be elicited has substantial relevance. As Bray C.J. observed in R. v. Gun; Ex parte Stephenson (1977) 17 S.A.S.R. 165, 169 of a similar provision in the South Australian legislation:

“The matter of which the judge must be satisfied… is that the evidence in question is relevant to one of the factual issues in the case and is not merely being proferred as a general smear on the woman concerned”

The learned Chief Justice went on to say that once so satisfied, the judge will normally regard the introduction of the evidence as justified unless it is, while legally relevant to one of the issues, so faintly or remotely the embarrassment of the witness.”

 In other words the purpose, in each instance, is in providing a test by way of qualification rather than quantification.

45. [45]
    The second matter to note is that the requirement in s 14H(1) is that the court is precluded from granting the necessary leave unless “satisfied” of each of the three criterion.  The use of such language attracts attention to the often-invoked observations of Dixon J in Briginshaw v Briginshaw,^[34] as to the considerations underlying each of the distinct and varying standards of proof beyond reasonable doubt and proof on the balance of probabilities.  After recognition that the law permits of only those two standards of proof or persuasion, it was observed:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”^[35]

And later:

“It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”^[36]

46. [46]
    These were of course observations directed at the process of fact finding.  In the application of s 14H(1) it is essentially a fact-finding exercise to which each of the criterion in subparagraphs (a) and (b) is directed.  The third criterion in subparagraph (c) is directed at an evaluative or normative exercise in weighing competing policy considerations, or matters of public interest, and is an exercise which is substantially influenced by the matters to which the court must have regard pursuant to s 14H(2). 
47. [47]
    The context to the invocation of s 14H will be of obvious importance to its application, despite the nature of the question being the same, having regard to the singularly applicable test and criteria and the ultimate concern as to the admissibility of the material into evidence.  In circumstances like here, where it is essentially the question of access to the material which is in issue and which must axiomatically be determined without recourse to the actual material, the determination must necessarily be as to expectation or potentiality as to the effect of it.  Such a situation may be contrasted with a situation where the material in issue is available and might be considered as to the actual permissible use of it.^[37]
48. [48]
    It must be kept in mind that unlike the effect of s 14D, the effect of s 14F is not to wholly prevent any access to or use of the PCC and that the purpose of s 14H is to regulate both access to and use of PCC.  Necessarily and where access to PCC must be sought at the outset, the necessary approach must be a staged one.^[38] In the first instance, as here, the contextual question to the application of s 14H is whether there is satisfaction as to the criteria, for the purpose of allowing a usual process of the court.  That is, that the applicant be allowed to subpoena the material into the custody and control of the court.  That would allow for and not circumvent the raising of any other legitimate issues which might arise in respect of the issue of such process.^[39]  Necessarily, there remains further potential issues as to access by the parties to the material once it is in the custody and control of the court and the ultimate need to determine issues as to use.^[40]
49. [49]
    Accordingly, the application of s 14H(1), where leave to subpoena to PCC is sought, must be determined, as such, and necessarily upon what may be expected to be the content of the material, as far as that may be discernible from the evidence placed before the court.
50. [50]
    Here and as already noted, it is readily discernible that the material sought from Pinwheel Psychology will contain evidence of preliminary complaint and in circumstances where such evidence may be seen as important, if not critical, to any meaningful understanding of the emergence of the complaint against the defendant and certainly in terms of the emergence of that complaint with any sense of clarity within the complainant’s family and as is otherwise to be part of the prosecution case. In that sense, the court may be satisfied that this material will have substantial probative value and there is no suggestion that there are other documents or evidence available as to “the matters to which [such] communication relates”. The concern in application of s 14H(1)(b) is not with the matters to which other communications in the nature of preliminary complaint relate and it is the particular implications of these particular communications, as part of the complete context of the full emergence of the complaint which underpins the indictment, which provides the sense of substantial probative value, so that other such communications may be dealt with and considered in the full necessary context. Accordingly, it is not sufficient, as was a prosecution submission, to negate satisfaction as to the s 14H(1)(b) criterion, to simply point to the availability of other admissible evidence of preliminary complaint.
51. [51]
    As to the ultimate balancing exercise pursuant to s 14H(1)(c) and the determination as whether leave to subpoena the Pinwheel Psychology records is to be granted, there is no statement of harm provided by the counselled person, at this stage.^[41] However there does not need to be, as the effect of the criteria in s 14H(2),^[42] except for sub-paragraphs (e), (g) and (h), is that they serve as statutory presumptions informing the notions of “public interest in (i) preserving the confidentiality of the communication; and (ii) protecting the counselled person from harm”. Moreover, sub-paragraph (e) may only be logically engaged to support the presumed weight to be given to the public interest favouring confidentiality and protection of the counselled person from harm.

52. [52]
    Whilst the criterion expressed in s 14H(2)(g) might be viewed as particularly addressed to a balancing consideration as to the interests of an accused person, sight should not be lost of the overarching public interest, which has been noted as informing the obligations and duty of a prosecutor, in securing a fair trial for an accused person. The ability of an accused person to make a full defence, may be observed to underpin the obligations of disclosure by prosecution and as particularly reflected in ss 590AB – 590AX of the Criminal Code. That is, in terms of being appropriately informed not just as to the allegation of which is made but the basis of it, including the evidence upon which it is premised and the relevant context to that evidence. So much is implicitly recognised in s 590APA, noting the express recognition in s 590APA(2) of the operation otherwise of specified provisions of the Evidence Act, including the prospect of leave being granted by a court.
53. [53]
    In any event and particularly because of the prospect that application for access to and use of PCC might be made by the prosecution, such considerations would fall within s 14H(2)(h).
54. [54]
    In this instance the public interest in respect of admission of any PCC into evidence, will be of that which serves to provide further explanation or context to the emergence of the complaint against the defendant. Such evidence is admissible pursuant to s 4A of the Criminal Law (Sexual Offences) Act 1978 and there is nothing by way of discriminatory belief or bias which may be identified in respect of that proposed use of the material.
55. [55]
    In the circumstances which have been outlined and where the evidence before the Court is indicative of what is otherwise expressed by the complainant in her own notes, that her connection to Pinwheel Psychology in 2014 to 2016, commenced in reference to issues related to this complaint and there is a temporal connection to the emergence of it to her family and the meeting with the defendant, her engagement with Pinwheel Psychology may be seen as being an important part of, or at least necessary context to, the emergence of her complaint in those respects and as is otherwise to be part of the prosecution case, In these circumstances, there is a clear basis for satisfaction that the public interest in admitting such communication into evidence substantially outweighs the public interest in preserving the confidentiality of the communication; and protecting the counselled person from harm, so as to allow these records to be subpoenaed into the custody and control of the Court, for further consideration as to what use of them might be permitted.
56. [56]
    Whilst the same approach is not directly applicable to the Cove Consulting Suite records and there is no basis established for any satisfaction as to the s 14H criteria in respect of any records postdating 27 December 2019, an essential difficulty on the prosecution material is the absence of any explanation for the gap in the chronology from the confrontation or meeting with the defendant to the point of the complainant’s contact with police by 18 December 2019, in the circumstances where the identified basis for allowing access to the earlier records lies in the ability of the parties and ultimately a jury,  to relevantly have a full appreciation of when and how the complaint emerged, which is permissible up to the point of the complainant’s first formal statement to police on 27 December 2019, there is an appropriate basis, in these circumstances for satisfaction as to the application of the s 14H criteria in respect of accessing these records up to including 27 December 2019, again so as to allow for consideration as to what use of them might be permitted.
57. [57]
    Accordingly, the parties will be further heard as to the form of the orders to be made to effect these conclusions, including but not limited to the potential application of rule 29(5) of the Criminal Practice Rules 1999.