R v HJJ[2023] QDCPR 22

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The matter before the Court is a pre-trial application brought pursuant to s 590AA of the Criminal Code, in respect of proceedings on the indictment presented on 20 June 2022, charging the defendant with nine counts of indecent treatment of a child under 12, under care and six counts of rape, alleged to be variously committed at Stafford Heights and Banyo, in differently charged date frames but broadly in the period from September 1998 to October 2003. 
2. [2]
   The application, filed 5 August 2022, sought the following orders:

“1. That pursuant to s 14M of the Evidence Act 1977 (Qld) the Chief Executive of the Department of Child Safety, Youth and Women produce the (sic) to the registry of the District Court at Brisbane any documents held by the Department which are records relating to or concerning [the complainant], without any redactions pursuant to sexual assault counselling privilege. 

2. That pursuant to s 14 (sic) of the Evidence Act 1977 the Chief Executive of the Department of Education produce to the registry of the District Court at Brisbane any documents held by the department which are records relating to or concerning [the complainant], without any redactions pursuant to sexual assault counselling privilege. 

3. That pursuant to s 14F and 14G of the Evidence Act 1977 the applicant be given leave to:

1. Produce to the court, adduce evidence of or otherwise use a protected counselling communication that may be included in the aforesaid records of the Department of Education and the Department of Child Safety, Youth and Women; and
2. Otherwise disclose, inspect or copy such protected counselling communication that may be included in such records

4. That pursuant to s 186(4) of the Child Protection Act 1999, leave be granted to the applicant to require that production, by the Chief Executive of the Department of Child Safety, Youth and Women, of records relating to [the complainant], that may identify the notifier of harm to the said [complainant].

5. That pursuant to s 186(4) of the Child Protection Act 1999, leave be granted to the applicant to require the production, by the Chief Executive of the Department of Education, of records relating to [the complainant], that may identify the notifier of harm to the said [complainant].

6. That pursuant to s 191(4) of the Child Protection Act 1999, the Chief Executive of the Department of Child Safety, Youth and Women disclose all documents or information held by the department relating to [the complainant], which might otherwise be withheld from disclosure pursuant to s 191(2) of said Act.

7. Such further or other orders as the Court sees fit.”

3. [3]
   It is appropriate to note that the recognition in this application of the potential intersection of issues arising under both the Child Protection Act 1999 (“CPA”) and Division 2A of Part 2 of the Evidence Act 1977 (“Evidence Act”) and those relating to the concept of protected counselling communication (“PCC provisions”), foreshadowed some degree of complexity and difficulties arising in this application.
4. [4]
   From information provided to this Court, the process of seeking access to the respective departmental records commenced in the Magistrates Court during the committal proceedings.  However and as is now recognised, that was frustrated by what should have been necessarily understood, that a Magistrate has no power to grant leave to access or use PCC.  However, that provides no answer to the absence of resolution of the defendant’s access to those records which are not, at least contended to be, PCC and more particularly why other issues relating to the confidentiality provisions in Part 6 of the CPA were not earlier resolved.  It may be further observed that as a matter of inference from the further difficulties encountered in that respect, as the matter has proceeded in this Court, that there has been a tendency to overlook the need to address those issues arising under the CPA, in addition to those arising in respect of the challenging regime incorporating the PCC provisions, and particularly so as to provide the fullest available context to considering those challenging provisions in respect of what would then remain as the PCC sought by the defendant. 
5. [5]
   The application, filed 5 August 2022, was assigned the return date of 13 September 2022 at 10:00am. But before then, subpoenas were taken out and served respectively, by 9 September 2022^[1] on the Department of Children, Youth and Multicultural Affairs (“Child Safety records”)^[2] and by 12 September 2022 on the Department of Education (“Education records”). Unlike the effect of the PCC provisions, there was no impediment to this step, save to the extent to which the effect was to seek to subpoena PCC, and typically the issues which might arise under the CPA, are raised, and dealt with, upon return of the subpoena and/or production of documents.^[3]
6. [6]
   However, more pragmatic issues arose from the form of subpoena adopted. As far as the Child Safety records are concerned, the subpoena filed on 9 September 2022 indicates that such records were sought by 9:00am on 13 September 2022 and what was sought included, amongst other things:

“4. Guidance files (which excludes counselling notes)

…

6. Suspicions of harm reported to Child Safety or police (which includes any other documents which may be otherwise withheld pursuant to section 186 and s 191 of the Child Protection Act 1999)”.

As is discussed below, this approach may be seen as troublesome and inappropriate, at least as far as the application of s 186 of the CPA is concerned.  Also and notwithstanding the express exclusion of “counselling notes” in respect of “guidance files”, as was later to become the position of the counselled person in respect of the extant application filed on 5 August 2022, there may have been inadvertence to the potential breadth of the PCC provisions to material created by a counsellor, as defined in those provisions. 

7. [7]
   It can also be observed that unlike the response from the Department of Education (MFI-C), the response in relation to the Child Safety records, as noted in the letter dated 9 September 2022 (MFI-E), gives no indication that this problem was recognised by the entity which would be regarded as the relevant “counsellor” for the purpose of the application of the PCC provisions. However, issues in respect of the potential application of the CPA provisions was noted.  The documents returned pursuant to rule 30 of the Criminal Practice Rules were noted, in accordance with the entitlement pursuant to rule 31 of the Criminal Practice Rules, to have been returned in redacted form in order to deal with issues arising under both s 186 and s 192(2)(g)(i) of the CPA. But no attention was paid to there being any PCC in the documents, as was later identified to be the position on behalf of the counselled person.
8. [8]
   As far as the Education records are concerned there is also a subpoena filed 9 September 2022, also seeking return of a range of specified documents at 9:00am on 13 September 2022 and it may be noted including in identical terms, each of the problematic demands which have already been noted in respect of the Child Safety records. In this instance, the response under cover of a letter dated 13 September 2022 (MFI-C), after noting correspondence, until 12 September 2022, narrowing the scope of the records sought, was as to the production of a number of the records sought, but with specific notation that:

“(a) this included five pages noted to contain confidential information pursuant to s 186 of the CPA, which were separately provided in sealed envelopes, respectively marked “A”, in unredacted form and “B”, in redacted form and so as to withhold or delete the confidential material.”

Attention was specifically drawn to the need for leave of the court pursuant to s 186 of the CPA for access to the material sealed in envelope “A”.  Otherwise, it was expressly noted, as an objection to production of “27 whole pages” and “23 pages, in part”, that they were stated to be “withheld because they are subject to a claim of sexual assault counselling privilege under Part 2, Division 2A of the Evidence Act 1977”.  It was further stated:

“If applicable, the documents will be provided upon receipt of a sealed order from the Court which grants leave for their production in these proceedings”.

9. [9]
   On 13 September 2022 and therefore upon the first return of the defendant’s application, an order was made and expressly noted as being made “by consent”.  That is, by having regard to the endorsement of appearances, with the agreement of and at the instigation of the parties to the proceeding on the indictment (the defendant and the prosecution) and the counselled person, who then appeared by legal representatives, after what may be expected to be the notification processes undertaken in accordance with the PCC provisions.  In fact, it may be noted that written submissions were filed for the counselled person on 19 August 2022 and read on the application on 13 September 2022, expressing the final submission:

“34. It is submitted that subpoenas should issue to the Department of Child Safety, Youth and Women and the Department of Education due to the circumstances surrounding the allegations.”

The Order, made “by consent”, was in these terms:

“1. Pursuant to s 14 M of the Evidence Act leave is given to the legal representatives for the applicant to issue subpoenas in the terms sought to:

1. Director-General, Department of Education; and

2. Director-General, Department of Child Safety, Youth and Women.

2. A copy of this order will be provided to the people and organisations listed in Order 1, of these Orders, by the legal representatives for the applicant when they serve the entity with their subpoena.

3. The material produced by the people and organisations listed in Order 1 of these Orders, must be provided in electronic format to the Brisbane District Court (by email to [email protected]  and the counselled person’s legal representatives (by email to [email protected]) with the reference “R v [HJJ]” to accompany these records by 4.00pm on 27  September 2022. 

4. If the legal representatives for the counselled person do not receive any material as per this Order, the Registry will, upon receiving an emailed request from the counselled person’s legal representatives, provide them with a copy of any material produced to the Registry by 4.00pm on 28 September 2022.

5. The legal representatives for the counselled person have leave to inspect, copy and adduce the records produced under each of the subpoenas.

6. The legal representatives for the counselled person have leave to inspect, copy, adduce, obtain or otherwise use the Talera Records produced to the Court.

7. The parties, apart from the legal representatives for the counselled person, are restrained from inspecting, copying, adducing, obtaining or otherwise using any of the records produced under the subpoenas or the Talera Records produced to the Court until further order of this Court.

8. The legal representatives for the applicant will file and serve on the legal representatives for the ODPP and the legal representatives for the counselled person any further written submissions or other evidence they intend to rely upon at the hearing of this application to address matters proscribed by s 14H and 14M(2) of the Evidence  Act 1977 (Qld) by 4.00pm on 11 October 2022.

9. The legal representatives for the counselled person will file electronically and serve on the legal representatives for the applicant and the legal representatives for the ODPP a redacted copy of any written submissions or other evidence they intend to rely upon at the hearing of this application to address the matters prescribed by sections 14H and 14M(2) of the Evidence Act 1977 (Qld) (except the counselled person’s statement of harm pursuant to s 14H(3) of the Evidence Act 1977 (Qld), by 4.00pm on 18  October 2022.

10. The legal representatives for the counselled person will provide the relevant Associate with the following documents electronically the day before any further hearing or when requested by the Associate:

a. An unredacted copy of the outline of submissions prepared on behalf of the counselled person;

b. A copy of the counselled person’s statement of harm – if provided;

c. Any other evidence that has been filed by the counselled person in preparation for the hearing; and

d. Paginated tender bundles of the material received from each entity.

11. This application is listed for a further hearing at 9.00am on 28  October 2022.

10. [10]
    The thing to note about the first of these orders, as the obvious foundation for all that follows, is that it proceeds on what may only be understood as a complete misunderstanding of the effect of the operation of s 14F and s 14H of the Evidence Act and more particularly s 14M of that Act which in no way empowers the granting of leave to subpoena any PCC. As noted in R v TJ,^[4] leave to engage the process of the court to compel the holder of the information to deliver it into the possession and control of a court, is to be determined pursuant to s 14F and only by application of the provisions of s 14H of the Evidence Act.
11. [11]
    It may be observed to be one of many arguably unworkable aspects of the legislative scheme in Division 2A of Part 2 of the Evidence Act, as it relates to the concept of “Sexual assault counselling privilege”, is that whilst s 14M is clearly directed at providing a mechanism for determination as to contestable or doubtful claims as to the application of that statutory privilege and therefore in order to clarify what material may be subject to the operation of s 14F and require the application of s 14H, there is no expressed mechanism as to how such material may be accessed and provided to a court for such determination. Because s 14F operates to require the leave of a court only “in connection with the proceeding”, being the proceeding on the indictment before a court, it operates, in that context, to prevent “a person doing any of the [stated] things in connection with the proceeding, other than with the leave of the court hearing the proceeding”. Pursuant to s 14H(1) such leave can only be granted in accordance with the requirements of that section and therefore without such leave granted pursuant to those requirements of s 14H, s 14F prevents any holder of PCC from producing it to a court and anyone from “otherwise disclos[ing], inspect[ing] or copy[ing]” it.
12. [12]
    Issues under s 14M can only arise where a question arises as to the application of s 14D or s 14F.^[5]  There is provision of a procedure whereby the court “may consider a document or evidence to decide whether it is a protected counselling communication”^[6] and to do so by excluding from the courtroom everyone except the counselled person,^[7] effectively as requested by the counselled person.^[8]  The potential stalemate is addressed in s 14M(4) and (5), as follows:

  (5) This section applies despite sections 14D and 14F.”

In some instances, as was the case here, it may be necessary to facilitate the operation of s 14M, by providing the legal representatives of the counselled person access to the material,^[9]  so as to be in a position to deal with the issue as to whether the privilege is claimed (or, where appropriate, might be waived pursuant to s 14I) and in appropriate cases where there may be an issue to be determined, to produce the material to the court for determination under s 14M. So much may be seen as anticipated by s 14M(4), in recognition that Division 2A must necessarily operate in the context of the usual powers, processes and practices of a court. Further, such an order permitting the inspection and copying of such material and where necessary the production of it for any determination under s 14M, may be seen to be entirely consistent with the application s 14N.

13. [13]
    However, such an approach is a far cry from the problematic approach taken by the participants in this application, with the need, on 28 and 31 October 2022, when the application returned to the Court, to seek to address first the issues arising under the CPA and then any identified s 14M issues, so that the participants all had access to all the material to which each was entitled, as the context for consideration of any remaining issues as to the application of s 14H.
14. [14]
    Whatever may have been the intent of the parties and the counselled person, in the context of what had occurred, it is clear that the entire and distracting focus on the PCC aspects of this matter then led to sight being lost of the need to attend to those objections raised under the CPA.  The effect then was that each of the government departments subsequently produced their records, in unredacted format,^[10] and it was those which were made available for inspection of the legal representatives of the counselled person. That occurred inappropriately, because they were, understandably in the light of the order made on 13 September 2022, provided in unredacted form and therefore without the actual prior determination of the issues arising under the CPA and which restrictions are as applicable to the counselled person as anyone else.
15. [15]
    Before turning to the CPA issues, it is convenient to note that the situation was further complicated by the Court being informed, at the outset on 28 October 2022, that the counselled person had determined to waive privilege in respect of some of the PCC, including some pages of the “Talera Records”. The reference to these records in the order made on 13 September 2022 presented somewhat of a curiosity. It is now understood that at some earlier point and in the course of the committal proceedings, these records were summoned and produced and have come into the possession of the legal representatives of the counselled person.^[11]  That was subsequently explained to have occurred as disclosure by the DPP, in circumstances where it was established that a copy of the material remained in the possession of the DPP but had not, through inadvertence, been dealt with, as required, pursuant to s 590APA.^[12] However that does not necessarily resolve any other interest or duty attaching to the prosecution in respect of them, but does clarify that they are not before this Court due to any process of the Court, except as they have been provided by the counselled person, in the following respects:

    1. a copy of some of these records is included in the records provided by the counselled person (MFI-I) as those in respect of which sexual assault counselling privilege is waived;^[13] and
    2. the rest of them (as included in MFI-G) remain the subject of an uncontested claim of such privilege, as they are the records of a psychologist engaged therapeutically with the counselled person, but subject to the application of s 14H.^[14]

The Child Protection Act issues

16. [16]
    All of the identified CPA issues were resolved by 3 November 2022. That required attention to s 186 of the CPA, particularly in order to note the legislative prohibition upon any access to the identification of relevant notifiers and the apparent stringency of the test to be applied by the Court in terms of allowing access to any such information.  The applicable provisions (as specifically engaged pursuant to r 31 of the CPR, by the Department of Education: see MFI-C) were:

“186 Confidentiality of notifiers of harm or risk of harm

1. This section applies if a person (the notifier) notifies the chief executive or an authorised officer, police officer, doctor or nurse that the notifier suspects—

1. a child has been, is being or is likely to be, harmed; or

2. an unborn child may be at risk of harm after he or she is born.

2. The person who receives the notification, or a person who becomes aware of the identity of the notifier, must not disclose the identity of the notifier to another person unless the disclosure is made—

1. in the course of performing functions under this Act or a  child welfare law or interstate law of another State to another person performing functions under this Act or a child welfare law or interstate law of another State; or

2. under the  Child Protection (International Measures) Act 2003, part 6; or

3. to the ombudsman conducting an investigation under the Ombudsman Act 2001; or

5. for the performance by the chief executive (adoptions) of his or her functions under the Adoption Act 2009; or

6. by way of evidence given in a legal proceeding under subsections (3) and (4); or

7. to the litigation director for the purposes of the director performing a function under the Director of Child Protection Litigation Act 2016.

Maximum penalty—40 penalty units.

3. Subject to subsection (4)—

1. evidence of the identity of the notifier or from which the identity of the notifier could be deduced must not be given in a proceeding before a court or tribunal without leave of the court or tribunal; and

2. unless leave is granted, a party or witness in the proceeding—

1. must not be asked, and, if asked, can not be required to answer, any question that can not be answered without disclosing the identity of, or leading to the identification of, the notifier; and

2. must not be asked to produce, and, if asked, can not be required to produce, any document that identifies, or may lead to the identification of, the notifier.

4. The court or tribunal must not grant leave unless—

1. it is satisfied—

1. the evidence is of critical importance in the proceeding; and

2. there is compelling reason in the public interest for disclosure; or

2. the notifier agrees to the evidence being given in the proceeding.

5. In deciding whether to grant leave, the court or tribunal must take into account—

1. the possible effects of disclosure on the safety or wellbeing of the notifier and the notifier’s family; and

2. the public interest in maintaining confidentiality of notifiers.

6. As far as practicable, an application for leave must be heard in a way that protects the identity of the notifier pending a decision on the application.”

17. [17]
    It may be noted that this provision was replaced by the Child Protection Reform and Other Legislation Amendment Act No 7 of 2022, as from 31 October 2022,^[15] to similar effect, as follows:

“Subdivision 1 Confidentiality of notifiers

186  Application of subdivision

This subdivision applies if a person (the notifier) notifies the chief executive, an authorised officer, a police officer, a doctor or a nurse that the notifier suspects—

1. a child has been, is being or is likely to be, harmed; or
2. an unborn child may be at risk of harm after he or she is born.

186A  Identity of notifier not to be disclosed

186B  Disclosure by authorised person

186C  Disclosure in proceeding

18. [18]
    A result of the approach adopted by the parties and the counselled person, as reflected in the order presented to the Court and made “by consent” on 13 September 2022, was not just to avoid the restriction in s 14F as to subpoenaing PCC but to have the effect of overlooking and overtaking the necessity to determine any issues arising under the CPA. A further result was much confusion and complication which required considerable time and effort in unravelling the separate threads of this matter, as they had been allowed to become entwined.^[16] In particular, it became clear that because of the approach adopted on 13 September 2022, no attention had been paid to the issues arising under the CPA and which were flagged in the initial departmental correspondence and then effectively overtaken in respect of the later production of unredacted documents, to which the counselled person had been granted unrestricted access, without regard to any restriction arising under s 186 of the CPA.
19. [19]
    A further complication is that, as is discussed in further detail below,^[17] before the matter returned to the Court on 28 October 2022, documents which had been accessed by the legal representatives for the counselled person from the Child Safety records, along with some from the Talera Records, were disclosed in accordance with a waiver pursuant to s 14I of the Evidence Act,^[18] but in unredacted format, as that is the form of the documentation which was accessed by those legal representatives.^[19]
20. [20]
    For present purposes, it is only necessary to note that all of the participants in this matter:

    1. were provided with copies of the four covering letters to the documents produced by each of the government departments, respectively in response to the original subpoena and to the order made on 13 September 2022;^[20]
    2. granted leave to inspect the documents returned in response to each subpoena, in redacted format, except for the documents over which there remained a claim of sexual assault counselling privilege;^[21]
    3. with the results that, on 31 October 2022:

    1. there was one issue raised and determined in respect of the application of s 186 of the CPA, with the resolution that that the single page of the records which was sought by the defendant in unredacted form (MFI-J), was ordered to be provided to the parties, for the reasons then briefly stated as follows:

“I am going to make an order or a ruling that a copy of page 2-097 of the Department of Child Safety, Youth and Women records, as contained in the folder marked MFIG, is to be separately marked as MFIJ and is to be provided to the parties. So that is you’ll get it in unredacted form.

I don’t propose to go at length in relation to my reasons for this. I’m cognisant of the need to address the considerations in section 186 of the Child Protection Act and, indeed, the stringency of the test set out in subsection (4). And I’m not going to rehearse the detail of the extent to which material has already been – effectively been made available to the parties despite any clear attention being paid to these legislative provisions. It’s not suggested there’s anything that I can or should do about that in the circumstances as have emerged here. More importantly, this is material which is relevant to the general issue as to the emergence of the complaint, which is of some critical importance, it seems to me, to understanding that complaint as it emerged in 2004 and then was not progressed by prosecution action or, indeed, by subsequent police action for quite some time.

There has already been, it seems to me, a good deal of acceptance and it seems to be reflected in the attitude taken by the counselled person in terms of the waiver of protected counselling communication privilege over material of that kind in understanding that it is of some particular importance for the parties to understand that, in this case. It is obviously potentially relevant and for that reason, it seems to me, that this singular disclosure does attract a compelling reason in the public interest for disclosure in being able to fill out that picture in terms of what’s recorded as to it in the Child Safety records. It is the only piece of information which is pressed – further pressed in that regard for the defendant”;^[22] and

2. there was a hearing conducted pursuant to s 14M of the Evidence Act, with the result that the claim of the counselled person was upheld in respect of identified parts of three pages of the Child Safety records, with the parties being provided with a copy of each page, with the contents held to be PCC redacted (MFI-K).^[23]

21. [21]
    Further, on 3 November 2022, the defendant pursued an issue in respect of some further material provided by the Department of Education in redacted form,^[24] with the result being a determination that the parties be provided with a further copy of two pages in a form that did not include redaction of the dates recorded in the document, as information not caught by s 186 of the CPA and so as to provide intelligibility and context to both the material which was disclosed and that which remained redacted and undisclosed.

Remaining PCC issues

22. [22]
    Accordingly and on 3 November 2022, what remained for consideration was the application of s 14H to the defendant’s maintained application in respect of the material in MFI-G.^[25]  Particularly in the light of the complications, as have been adverted to, in respect of prior dealings with the materials and in circumstances where they are now, even if in some respects irregularly, effectively within the custody and control of the Court, the parties were given the opportunity to make written submissions as to how the application might then be further heard, particularly in respect of prospective access of the legal representatives of the parties (defendant and prosecution), so as to ultimately make informative submissions as to any use to be made of any of this PCC in the trial.
23. [23]
    In this respect, the orders made on 3 November 2022, included the following:

“1. The application is adjourned to a date to be fixed.

  2. It is directed that:

1. Each of the parties is to provide a written outline of submissions and any further material to be relied upon in respect of this application in respect of whether and how the court should deal with the Talera Centre Records and whether the court may and should allow, at least, their legal representatives to inspect the material now provided to the Court and over which PCC privilege remains claimed and any remaining issues arising pursuant to the Child Protection Act:

1. In the case of the applicant/defendant, by 18/11/22;
2. In the case of the prosecution, by 2/12/22.

2. By 12/12/22 the counselled person may provide written submissions as to the issues as to whether and how the court should deal with the Talera Centre Records and whether the court may and should allow at least the legal representative of the parties to inspect the material now provided to the court and over which PCC privilege remains claimed.
3. Unless the court determines otherwise, the issues to be addressed in the written submissions allowed pursuant to subparagraphs (a) and (b) are to be determined upon those written submissions.”

24. [24]
    On 7 December 2022, at the request of the participants, the timeframes provided in Order 2 were extended, in the case of the respondent, to 12 December 2022 and in the case of the counselled person, to 22 December 2022.  By then, a further application had been filed for the defendant for leave to subpoena other records of a medical practitioner,^[26] and this was adjourned to a date to be fixed whilst attention was paid to the existing issues.
25. [25]
    Further and on 3 February 2023 and upon it being noted that further written submissions of the counselled person^[27] addressed implications arising under the Human Rights Act 2019 (“HRA”), a direction was made allowing for further written submissions as to the applicability of that Act to the issues to be determined, in the case of the defendant, by 10 February 2023 and in the cases of the prosecution and the counselled person, by 17 February 2023, with the determination again noted to be upon those written submissions (subject to the decision of the court otherwise).
26. [26]
    No further issues under the CPA have been identified and it can be noted to be the common position of the participants in this application that it should be determined, as far as the Talera Records are concerned, upon the basis that the records in issue are now placed before the Court, as has been explained above.  The immediate issues are then appropriately framed by the submissions made for the defendant,^[28] in support of the position postulated for consideration by the Court.  In essence they are that:

    1. Section 14H is to be applied in the context of the proceeding which is constituted by the indictment before the Court and therefore also in the context of the usual attributes and processes applicable to such a proceeding;^[29]
    2. The criteria in s 14H(2), includes as (g), consideration of “the extent to which the communication is necessary to enable the accused person to make a full defence” and the application of this criteria for a judicial officer, without the assistance of the parties to the proceeding in respect of the contents of the material, presents the particular challenge that it would be necessarily without a full appreciation of the respective cases of the parties and involve aspects of guesswork and speculation as to potential relevance of such information and an unrealistic task for a judicial officer to complete without meaningful submissions from the parties to the proceeding.  Moreover, it is “not compatible with established principles relating to the exercise of judicial power”.^[30]
    3. In circumstances where the PCC material is produced to the Court, the legal representatives of the prosecution and the defendant ought be permitted to inspect such material in order to the provide meaningful submissions to the Court about the particular relevance of the PCC and, thereby engaging the necessary expectation of adherence by those lawyers to their respective ethical responsibilities, in order to have meaningful submissions and determination of whether there should be leave granted for the use of the material in the proceeding.^[31]
    4. In approach to the application of s 14H and particularly the inclusion of s 14H(2)(g), the purpose of the legislation is achieved by such an approach in allowing for the adoption of the usual practices of the court in deciding issues in connection with a proceeding of this kind and in allowing for meaningful submissions to be made by the parties to the proceeding, particularly “in order to properly identify the PCC material that may satisfy the matters relevant to s 14H(2)(g) and making the legislation workable.”^[32]
27. [27]
    Each of the counselled person and prosecution opposes the defendant’s contentions that the Court may now and should, allow the legal representatives of the parties to inspect the documents MFI-G, for the purpose of the determination of what use may be permitted in respect of any of them.
28. [28]
    Each point to the absence of any expressed such power in the PCC provisions, or elsewhere, in contrast to the expressed power in s 14M(2).  An apparent and unwarranted assumption is that somehow s 14M operates to avoid the strictures of s 14F, so that any and all PCC may be brought before a court to be considered pursuant to s 14H by the court.  It must be observed that this is not logically permissible reasoning, as s 14M(2) is expressly applicable only to the situation where a court is “to decide whether it is a protected counselling communication” and the remaining purpose of s 14M is to establish a process whereby such consideration of the material occurs, effectively with only the involvement of the counselled person.
29. [29]
    As the counselled person contends, an analogy with recognised common law principles in dealing with claims of public interest immunity,^[33] or legal professional privilege,^[34] is apt.  But it is only so in respect of what is expressed in s 14M(2) in terms of “decid[ing] whether” something is PCC.  There is no analogy with the application of s 14H, as a necessary pre-requisite to allowing what is prohibited by s 14F without the leave of the court. It may be noted that in addition to preventing compulsion by subpoena, or otherwise, of a person to produce PCC to a court, also prevents a person from producing PCC to a court.^[35]
30. [30]
    The primacy of the operation of s 14F (and also s 14D) is to be noted as reflected in s 14M(3) and (4), in terms of avoidance of the potential impasse in effectively preventing any determination as to whether the privilege applies, without first addressing the s 14H criteria.  That is because those provisions expressly allow departure from s 14D and s 14F but only for the purpose of the application of s 14M and in allowing a court to “make any other order it thinks fit to facilitate its consideration of the document or evidence”.  That is, the consideration allowed under s 14(2) “to decide whether it is a protected counselling communication”.
31. [31]
    Accordingly, and notwithstanding the irregularity as to how it happened in this instance, the first step will usually be in respect of an application for leave to subpoena the material.  That is, so it is brought within the custody and control of the Court.  Leaving aside instances where the material is already in the possession of a party, that will mean that there is necessarily a determination allowing that to occur, having regard to the s 14H criteria.^[36]  Accordingly and before returning to the irregularity of the position in this instance, it is desirable to first consider the further submissions in what may be considered to be the more usual context.
32. [32]
    This is because the effect of those submissions would be to then deny any power of a court to control and regulate its own processes in terms of dealing with what may be permitted to occur in the proceeding before it upon the indictment.  For the counselled person, it is contended that for this Court, as a court created by statute^[37] such power must only be by necessary implication, rather than by considerations of what is “merely desirable or useful”.^[38]
33. [33]
    The submissions for the counselled person and the prosecution then proceed upon an assumption that the legal representatives of the counselled person will have access to the documents and be in a position to assist the court as to determining the use that may be permitted of them. For the counselled person, a curious position is taken in expressly raising a suggestion of potential conflict of interest arising for the defendant’s lawyers, if they were permitted to inspect the documents for such purpose, but the submissions of each of the counselled person and the prosecution admitted no such concern about the position of the legal representatives of the counselled person in so “assisting” the court and in being the only person contended to be allowed to do so.^[39]
34. [34]
    The further submission of the counselled person and the prosecution is that allowing the parties to inspect the PCC material would undermine the purpose of the PCC provisions.^[40]  As relevant contextual considerations to determining that purpose, the prosecution written submissions,^[41] make reference to the explanatory notes to the Victims of Crime Assistance and Other Legislation Amendment Bill 2016, in terms of stating a policy objective of legislating “by introducing some form of privilege to limit the disclosure and use of sexual assault counselling communications in legal proceedings”.  Specific reference is made to the following extracts from the second reading speech in respect of the bill, on 22 March 2017:

“Sexual violence is the second most prevalent form of violence against women after domestic and family violence.  This is a sad indictment on our society.  Currently in Queensland, communication between a victim of sexual assault and a counsellor can be disclosed in court without the consent of the victim.  These communications can then be used to discredit and retraumatise the victim.  Stakeholders who appeared before the committee highlighted the seriousness and detrimental effect this can have on victims. …

In line with recommendation 130 of Not Now, Not Ever: Putting an end to domestic and family violence in Queensland, the report of the Special Taskforce on Domestic and Family Violence in Queensland, the provisions in the bill before the House establish a sexual assault counselling privilege based on the New South Wales model.  This model aims to strike a balance between the right to a fair trial for an accused person and the public interest in preserving the confidentiality of counselling communications between a victim of sexual assault and a counsellor and minimising harms to victims.

As noted at page 317 of the Not Now, Not Ever report, the existence of a sexual assault counselling privilege may encourage victims of sexual assault to seek counselling by only allowing access to or disclosure of protected confidences in certain legal proceedings with court approval.  This important reform is long overdue.  The privilege recognises that a person’s private psychological and physical boundaries are invaded during a sexual assault and acknowledges that counselling services play an integral role in providing support and assisting people to recover.”

35. [35]
    Understandably and notwithstanding the reach of the provisions thereby enacted in achieving these policy objectives, to access to such material in conjunction with proceedings to which s 14C and s 14E makes them applicable,^[42] it may be noted that the particular concern in respect of the use of such material in such proceedings is what is ultimately reflected in the criteria to be applied pursuant to s 14H(1).^[43]  And it is of particular importance to understand that it is through the application of that criteria that the balance as between the competing public interests, respectively recognised in respect of the defendant and the counselled person, is to be achieved.
36. [36]
    What may present as entirely different and potentially influential circumstances, will be those where the application is only in respect of the use of PCC which is already in the possession of a party to the proceeding.  However, what may be expected to be the more usual situation and where there will be any need to consider the actual use of PCC in a proceeding, is in circumstances where there has been a grant of leave to subpoena the material into the custody and control of the court.  As explained in R v TJ,^[44] in such a situation, there must necessarily have been an antecedent determination that the s 14H(1) criteria are sufficiently satisfied, including a sufficient expectation that the material will have substantial probative value and that the balance substantially favours the public interest in admission of it into evidence over that relating to preserving confidentiality in protection of the counselled person from harm.^[45]
37. [37]
    That must necessarily be an influential consideration as to how the material will then be dealt with and further considered, particularly in relation to those considerations arising pursuant to s 14F in respect of disclosure, inspection and copying of any PCC.  The essential development in such circumstances, is that the critical question as to the actual use of any of the material may now be addressed by direct consideration of it, albeit a question which remains constrained to be determined by application of the s 14H(1) criteria.
38. [38]
    What must be accepted is that the position of the counselled person, as supported here by the prosecution, is that, at face value, s 14F operates to prevent a person from producing PCC to a court and from otherwise disclosing, inspecting or copying PCC, without the leave of the court hearing the proceeding.  But as already noted those prohibitions and the further prohibitions of compelling production to a court and seeking to adduce evidence of or otherwise use PCC, are all subject to the leave of the court which may be granted pursuant to s 14H.  As noted, that ultimately involves the balancing of the recognised competing interests in respect of allowing admission of the communication into evidence.
39. [39]
    In the first instance, an evident purpose of the breadth of the restrictions set out in s 14F, subject to the leave of a court, is to effect a barrier around PCC in connection with the proceeding.  As discussed in R v TJ,^[46] that necessarily means that where access is sought, the application must, from the outset, depend upon the application of s 14H to the question of leave to compel what is otherwise prevented. That is, in terms of access by subpoena or otherwise.  It is also necessary to understand that from the outset, the underlying issue is as to the prospective use of the material.  However and once the question becomes the actual use of material which is in the custody and control of a court, or amenable to such control because it is in the possession of a party to the proceeding, the circumstances are obviously very different.
40. [40]
    It is commonly accepted that once the material which is in contention is amenable to the consideration of the court, the actual material should be the subject of that consideration.^[47]  A common perception is that it should then be produced to and be inspected by the court, so that the s 14H(1) criteria may be considered, perhaps with the “assistance” of the legal representatives for the counselled person. However, what remains unexplained is how that may occur if the substantial point in reliance upon s 14F, otherwise applies.  That is, in understanding that the prohibitions in s 14F are expressed in terms of preventing the production of PCC to a court by “a person … in connection with the proceeding”.
41. [41]
    However, the expectation or purpose of s 14F and s 14H is to appropriately allow for and not, in contrast to the operation of s 14D, completely prevent the use of PCC in proceedings to which the provisions apply.  Further and in the achievement of that purpose and consistently with the expectation of s 14N, there may be the adoption of processes which may serve to “limit the extent of the harm likely to be caused to the counselled person by the production of a document or the adducing of evidence that is [PCC]”. 
42. [42]
    Unlike the position under s 14M, there is no specific methodology prescribed for that actual consideration of the material.  However, a court is given the power to be exercised in accordance with the constraints of s 14H.  It is then a matter of the court’s control of its own processes in making such determination.  As explained in Grassby v The Queen, in a passage to which the submissions of the counselled person draw attention:^[48]

“However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent.”^[49]

Subsequently, it is further observed:

“It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.”^[50]

43. [43]
    As has been noted, the very prospect of application of a court’s control of its own processes may be seen as underpinning s 14N, which allows for the making of ancillary orders as considered:

“appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person.”

The likely harm is that which is largely presumed in the matters to be considered pursuant to s 14H(2) and which may be further informed by the statement of harm permitted pursuant to s 14H(3).  What is important to note is the expectation that in performing its functions, a court is to act to limit the likely harm, rather than avoid it, and that such expectation is not limited to the situation which is to be the subject of the ultimate determination pursuant to s 14H(1), being the adducing of PCC into evidence, but extends to the production of such a document.

44. [44]
    It may be recognised that it may be thought that there is potential for exacerbation of the harm which may be occasioned to a counselled person by each dissemination of PCC. However, the effect of s 14H is to prevent any dissemination of it unless there is a proper basis for doing so, having regard to the stipulated criteria, and particularly once that initial hurdle is sufficiently overcome, there must necessarily be some dissemination and further consideration of the material and therefore intrusion upon the presumed public interest in preserving the confidentiality of it. All of that is consistent with the underlying purpose of appropriately allowing for the use of such material in evidence and the underlying issue then becomes one of limiting rather than avoiding the necessary extent of the harm, including as to appropriate consideration as to such use. There is then an absence of significant reason for concluding there is any different or substantially greater limitation of the likely or presumed harm to a counselled person by the intrusion upon the expectation of confidence attaching to a PCC, if the inspection of the material is only to be by a lawyer who is a judicial officer and perhaps those who represent the counselled person, to the exclusion of those who represent the defendant and the prosecution. In any event, the objective is to appropriately determine the issue arising under s 14H as to the actual use which may be permitted. It is simply not a usual attribute of the judicial process that such a determination be made by inquisition of a court.
45. [45]
    The issue which then arises is as to why that further and critical determination as to any use to be made of the materials, should not proceed with the fully informed participation of the parties to the proceeding in which that use might occur.  To do so would be consonant with the ordinary dictates of the concept of procedural fairness.  Although recognised as a malleable concept, it was generally described in Kioa v West, in the following terms:

“[T]he expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …”.^[51]

Earlier and in Commissioner of Police v Tanos,^[52] it was observed in respect of what was then referred to as the principles of natural justice, that legislative intention to exclude such principles had to be very clear and “not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations”.  Rather it must “satisfactorily appear from express words of plain intendment”.^[53]  For the reasons already given, the extent of the restrictions in s 14F, directed at restraining access to PCC are simply not germane to what may be accepted to be the necessity, once the material is available to actually, rather than merely prospectively, consider it. Indeed, it might be considered that it is necessary to do so in order to limit the likely harm from the use of PCC in evidence, to that which is fully and appropriately determined to satisfy the s 14H(1) criteria. It is then a short step to a conclusion that such an outcome reasonably requires the benefit of fully informed submissions of the parties to the proceeding in which the evidence might be admitted and having regard to their respective interests in that prospective outcome.

46. [46]
    Although it has been recognised that even such a fundamental principle may be excluded or modified by the legislature,^[54] the concept of procedural fairness has been described as an essential characteristic of judicial proceedings,^[55] lying “at the heart of the judicial function”,^[56] and as an obligation in a judicial officer to be afforded to litigants before a court.^[57] That obligation has been further described as providing a reasonable opportunity to be heard,^[58] by procedures, even where there is legislative encroachment on the usual dictates of procedural fairness, which avoid practical injustice,^[59] and usually afforded by a party having access to the ordinary and full range of processes available within the jurisdiction that has been invoked.^[60]
47. [47]
    A particular application of the principles of procedural fairness in the context of competing considerations of confidentiality and public interest and resonant of the issues specifically raised for the submissions of the participants in this application, is the decision of the Full Federal Court in Minister for Immigration v Kurtovic.^[61] Albeit a determination upon judicial review of executive action, an aspect of the decision was in favour of disclosure to the applicant prisoner’s lawyer because it was considered that the claimed confidentiality and safety interests could be adequately protected by allowing lawyers, rather than the applicant, access to the relevant documents. Indeed, the underlying premise of the conclusion reached, lay in recognition of the denial of procedural fairness in material being taken into account without the party whose interests would be affected by the determination having opportunity to address the matters so taken into account.
48. [48]
    Accordingly, it should be determined, as a general proposition, that the processes of a court in ultimately determining what use may be made by the adducing of PCC in evidence, may reasonably require that there be access to that material, so that the court may be assisted by the informed submissions of the parties as to the application of s 14H to that issue. It is at this point that the following further observation of the High Court, in HT V The Queen,^[62] has particular resonance:

“A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.”

49. [49]
    In what has been noted to be the usually expected position and where there will already be a determination of satisfaction as to the s 14H(1) criteria, sufficient to warrant the availability of the material for such consideration, such conclusion of itself may be a further significant factor towards the allowance of some inspection of the material to otherwise facilitate the ultimate objective sought to be achieved by s 14F and s 14H. Other circumstances and where the availability of the material is reflected in the possession of a party, will need to be considered according to the particular circumstances. 

Applicability of the Human Rights Act 2019

50. [50]
    Before returning to the particular circumstance of this matter, it is convenient to deal with what has been raised as to the potential application of the HRA. As has been noted, the potential application of the HRA was raised by the prosecution on 25 January 2023 and this then led to the further written submissions of the participants, through to 16 February 2023. 
51. [51]
    In the end, the prosecution submission was in agreement with the primary position of each of the counselled person and the defendant, that the operation of the HRA was, in this instance, excluded by s 108(2)(a) of that Act.  That is, that the HRA did not affect this proceeding because it was commenced before the commencement of the HRA, on 1 January 2020.^[63]  That contention, which should be accepted, is to be understood as premised upon the undoubtedly correct understanding that the proceeding to which s 14F applies is that in respect of the prosecution of the defendant upon the indictment now before this court,^[64] and that the application which enlivens the consideration of s 14F is a pre-trial application made within that proceeding.^[65]  Relevantly, that proceeding was commenced on 15 July 2019 when the defendant was charged in respect of the matters now encompassed in that indictment.^[66]  That is also a position consistent with that noted in TRKJ.^[67]  There is, accordingly, also no need to consider any implications in respect of the notice provisions in s 52 of the HRA. 
52. [52]
    Notwithstanding these conclusions, it is appropriate to observe that the alternative submissions for the counselled person and defendant, in seeking to enlist support for each of their respective positions by reference to the extent to which there may be recognition in the HRA of respectively applicable human rights, is fraught with the same difficulty as was noted in respect of a similar attempt in TRKJ and in rejection of a contention that, in the context of determining an application for leave to subpoena PCC, such considerations would lead to any conclusion that a judge hearing such an application would be compelled “to consider the contents of the protected counselling communications in respect of which access was sought”.^[68]  As was there observed:

“[179] In my view, if the interpretive task was affected by s 48 of the HRA then it would involve a recognition that the relevant provisions balance competing human rights and competing public interests in a way that is compatible with human rights. The judge also was required to apply ordinary principles of statutory interpretation.”^[69]

53. [53]
    As has been noted, the issue is not so much in respect of interpreting s 14H but rather as to how s 14H is to be applied, in the context of the usual attributes and processes of a court, to the prospective determination of the actual use of PCC which has either been the subject of a determination applying s 14H to the bringing of the materials into the custody and control of the court or where it is amenable to such control because the material is in the possession of a party to the proceeding.  That is, the question as to how a court may then determine the question of use, by proper application of s 14H, rather than as to any particular interpretation of s 14H itself.

Application to this case

54. [54]
    As has been noted, in this case, there has been a grant of leave to subpoena the departmental records, including the PCC which remains in issue.  Although and as further noted, that has occurred without a determination of the court pursuant to s 14H and it would appear, with the misconceptions as to the operation of the PCC provisions, which have been noted above.  The “Talera Records” are also, albeit irregularly, now in the custody and control of this Court.
55. [55]
    In terms of the original application made by the defendant, it suffices to note that it was supported by the following contentions:^[70]

1. The material was sought for the purposes of an intended application for permanent stay of the proceedings and if that was not successful, as being “highly relevant to the jury’s assessment of the credibility and reliability of the complainant’s evidence at trial”.  For the defendant it is indicated that the stay of proceedings is intended to be premised upon the delay in pursuing the allegations and the absence of documents explaining the circumstances in which the complainant came to make allegations to police in September 2004 and the reasons why the police did not pursue the allegations she made against him then.  That is further explained on the basis that:

1. On 20 September 2004 the complainant was interviewed by a no longer serving police officer and made allegations of sexual misconduct against the applicant but there were no charges brought against the defendant, nor any attempt to interview him about those allegations.  That police officer asserts that she has no recollection of anything to do with the complainant’s allegations or the investigation arising from them and neither has there been anything disclosed to the defendant by way of explanation as to why no charges were brought against him as a result of that interview, including any contemporaneous records providing any such explanation;
2. Before and after 20 September 2004 the complainant was under the care of “Officers of the Department of Child Safety” and in foster care in 2003 and 2004 and attended state schools before and after 20 September 2004.  It is contended to be apparent from witness statements that the complainant was the subject of “extensive engagement with officers from the Department of Child Safety in 2004 preceding the complainant’s 20 September 2004 interview” without the circumstances in which she came to be so interviewed being made known; and
3. In 2017 the complainant was contacted by a police officer and asked and confirmed that she wished to pursue a complaint against the defendant, which resulted in the investigation and laying of the charges that are now before the court.

2. Although it remains for assessment of the underlying basis of them, including as to what extent they are put in issue by the prosecution,^[71] there are contentions that there is material which indicates that the complainant has a history of making false complaints about various matters including other sexual abuse of herself and her younger sister, with what is understood to be reluctance on the part of police to take action, and recorded concerns as to her credibility and having “previously fabricated evidence”.
3. The broad contentions made in support of the allowance of access to PCC in the departmental records was expressed in terms of the potential for there to be evidence of preliminary complaint.  That is, that it “may establish the opportunities that existed for the complainant to disclose the applicant’s alleged sexual abuse and whether in fact she did so; a matter of obvious relevance to the assessment of the complainant’s credibility” and on the basis that the records “may contain material adverse to the complainant’s credibility that has not otherwise been disclosed to the applicant” and which “may explain the reason why the complainant’s allegations against the applicant were not further pursued by police”.

56. [56]
    More particularly the following submissions are made as to what remains undisclosed or not revealed in the material which has been disclosed to the defendant:

“(a) the circumstances in which the complainant came to make any disclosure about the applicant that led police to interview her on 20 September 2004, the state of the materials means there is no explanation as to how the complainant even came at the police station on that date;

2. the extent of any disclosures made by the complainant to officers of the Department of Education or the Department of Child Safety about alleged sexual abuse by the applicant, at any time, before 20 September 2004.

3. whether there is any record made by any officer of either department, after 20 September 2004 that explains why serious allegations of sexual abuse made by the complainant to police against the applicant were not pursued by police any further.

4. the disclosures made by the complainant to department officers, either before or after 20 September 2004, about the alleged false complaints identified above in the disclosed crime reports.

5. whether the complainant made allegations of sexual abuse against the applicant to therapists who had been engaged by the Department of Child Safety to provide services to the complainant or to school counsellors or the like.”

57. [57]
    That position has then been overtaken by the concession expressly made for the counselled person as to the appropriateness of leave being granted to subpoena the departmental records.^[72]  Although that would appear to have occurred in some misunderstanding of the true effect of the PCC provisions, it may also be noted that there was some acknowledgement of the s 14H criteria in the context of that concession being made.^[73]  That order was also made upon the consent of the prosecution. 
58. [58]
    The position is then further overtaken in understanding that at the outset of the hearing of this matter on 28 October 2020, this Court was informed that the parties had only just recently been provided with PCC, in respect of which the counselled person waved privilege.  Notably, that included a few pages of the “Talera Records” and this was understood to have occurred in recognition of that material being relevant to and probative of the emergence of the complaint and therefore further understood to be the subject of the counselled person’s consent as to the disclosure of it to the parties for use as evidence of preliminary complaint.^[74]
59. [59]
    What immediately becomes apparent is some sense of at least partial vindication of the expressed expectation of the defendant’s application. What remains undetermined is the extent to which there may be other material which provides appropriate context to or elaboration of this disclosed material or the defendant’s expectations, particularly as might be determined with any benefit to be gained from the input of the parties to the proceeding.
60. [60]
    Despite what has been noted as to the irregularities involved, the position is now that the materials are amenable to the control of the Court and the application of regular practices of the Court, so that it is appropriate, cognisant of the criteria to be applied pursuant to s 14H,^[75] to allow the legal representatives of the parties an opportunity to inspect the material MF1-G, so that there is an appropriate opportunity for them to be heard and an appropriate basis for determination as to whether or not use of any further such PCC is to be permitted. It should not be overlooked that, as has been noted,^[76] and as remains necessary in respect of the use of any such material (in any event pursuant to s 186C the CPA), there will be necessity to be alert to the prospective identification of any “notifier”.
61. [61]
    It will be necessary to hear the parties and the counselled person as to the appropriate orders or directions, necessary to further progress this matter and the adjourned further application.