R v Yorkston (No 2)[2023] QDCPR 23

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant has applied pursuant to s 14F of the Evidence Act 1977 (Qld) (“the Act”) for leave to inspect and use protected counselling communications (“PCC”) in a criminal trial.

2. [2]
   On 1 March 2023 and 24 March 2023, I granted leave to the defendant to issue subpoenas on four organisations namely Zig Zag Young Women’s Resource Centre, Headspace, Smart Clinics Taigum Medical Centre, Pine Rivers Private Hospital and a mental health service.

Background

3. [3]
   The defendant is charged with two counts of rape.

4. [4]
   The alleged facts are that on 12 September 2021 the defendant and the complainant met for the first time whilst attending a house party. During the course of the evening, the two left the party and attended a nearby park. Both the defendant and the complainant were intoxicated. Whilst seated at a picnic table the defendant and complainant engaged in sexual acts which are the subject of the rape counts. After sexual intercourse occurred, the two returned to the party. The complainant claimed she had been raped. When confronted by another person about this allegation the defendant denied he had raped her. No complaint was made to police at this time. The following day the complainant attended the Redcliffe Hospital and later the Royal Brisbane and Women’s Hospital where she was medically examined. She disclosed the use of “weed and MDMA” the previous evening. During treatment she said that she had limited recollection of the assault. She later made complaint to the police and the defendant was charged on 13 December 2021.

5. [5]
   Records obtained from the Department of Education, Queensland Health and the DPP indicate the complainant has had significant mental health issues in the past.

Defence submissions

6. [6]
   The defence submits that leave should be given to inspect and use the documents. It is submitted any version given by the complainant could well be inconsistent, there could be preliminary complaint evidence and therefore the documents would be probative. Also, in light of the complainant’s mental health history there may be further matters in the records which would significantly affect the complainant’s reliability or credibility and would be substantially probative. In that regard, it may be necessary for the court to give a Bromley^[1] and/or Robinson^[2] Direction to the jury.
7. [7]
   Needless to say because the defence does not have access to the relevant documents, there is a degree of speculation in its submissions.

Counselled person’s submissions

8. [8]
   The counselled person has provided detailed submissions and a comprehensive annexure which analyses the documents in detail. The counselled person in the annexure has set out that which it claims are PCC, and those which are not. With

respect to some of the PCC, it is submitted they are not of any substantial probative value but it is conceded that others could be. The counselled person accepts that the credibility and reliability of the counselled person will be a central issue at the trial. It further accepts that any versions given by the counselled person to a counsellor which substantially differ from what she told the police would have substantial probative value. It is also submitted that it may be that records relating to the diagnosis of her mental health condition and specific presentations could be of probative value. It is conceded that records from the Child and Youth Community Health Centre discuss specific symptoms relating to the counselled person’s mental health and the potential diagnosis. Similarly, there are records from Smart Clinics which may have substantial probative value. Also, there are records from Headspace which may have substantial probative value.

Discussion

9. [9]
   In reaching my decision, I have had regard to the evidence and the submissions made by counsel. Pursuant to section 14M of the Act, I also examined the unredacted documents which were provided to me and which I have ordered be placed in a sealed envelope.

10. [10]
    Section 14A of the Act provides:

“14A Meaning of protected counselling communication

1. A protected counselling communication is an oral or written communication made in confidence—
   1. (a)
      by a counselled person to a counsellor; or
   2. (b)
      by a counsellor to or about a counselled person to further the counselling process; or
   3. (c)
      about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process.
2. However, a communication made to or by a health practitioner about a physical examination of the counselled person conducted in the course of an investigation into an alleged sexual assault offence is not a protected counselling communication.
3. For subsection (1) it does not matter whether the communication was made—
   1. (a)
      before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or
   2. (b)
      in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person.

4. A reference in this division to a protected counselling communication includes a reference to—
   1. (a)
      a document to the extent it contains a protected counselling communication; or
   2. (b)
      evidence to the extent it discloses a protected counselling communication.
5. In this section—

health practitioner means a person registered under the Health Practitioner Regulation National Law to practise a health profession.”

11. [11]
    I have considered, in detail, the documents and annexure provided by the counselled person and agree that the documents which the counselled person submits are not PCC, are not PCC and the ones which are submitted to be PCC are PCC as defined in section 14A of the Act. I consider the onus of establishing that documents are PCC is on the counselled person.^[3]
12. [12]
    In deciding whether or not to grant leave for the parties to inspect, use or otherwise disclose the documents, one must have regard to s 14H of the Evidence Act:

“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. (a)
      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. (b)
      other documents or evidence concerning the matters to which the communication relates are not available; and
   3. (c)
      the public interest in admitting the communication into evidence substantially outweighs the public interest in—
      1. (i)
         preserving the confidentiality of the communication; and
      2. (ii)
         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.

3. For deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted.
4. If an oral statement is made by the counselled person under subsection (3), while the statement is being made the court must exclude from the room in which the court is sitting—
   1. (a)
      anyone who is not an essential person; and
   2. (b)
      an essential person, if—
   1. (i)
      the counselled person asks that the essential person be excluded; and
   2. (ii)
      the court considers excluding the essential person would serve a proper interest of the counselled person.

5. The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3).
6. The court must state its reasons for granting or refusing to grant the application.
7. If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.
8. In this section—

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

13. [13]
    These provisions were discussed in R v JML.^[4]
14. [14]
    In JML, Judge Fantin referred to the Explanatory Notes to the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 and noted the policy objectives for introducing a sexual assault counselling privilege. At [37] her Honour noted these as:

1. “(a)
   A person’s private, psychological and physical boundaries are invaded during a sexual assault and the harm inflicted on an individual can have long-term impacts. Sexual assault counselling services play an integral role in assisting people to recover;

2. Since the late 1990s, all other Australian jurisdictions have introduced some form of statutory evidential privilege to limit the disclosure and use of sexual assault counselling communications during legal proceedings. These statutory protections seek to recognise the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery and may also encourage them to report the crime to police; and
3. Recommendation 130 of the Domestic and Family Violence Task Force Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland released on 28 February 2015 was that the Queensland government introduce a sexual assault counselling privilege, based on the New South Wales legislative model, which provides an absolute privilege in preliminary proceedings and a qualified privilege in other proceedings. In accepting this recommendation, the Queensland government acknowledged the benefits of the NSW model as it seeks to ensure the appropriate balance in each case between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications.”

15. [15]
    As her Honour noted the scheme seeks to balance the competing public interests of ensuring the fair trial of an accused while respecting the privacy of counselling communications.

16. [16]
    Section 14H(1)(a) provides that the first matter to be considered then is whether the protected counselling communication will have substantial probative value. This is determined by an analysis of the facts in issue in the proceedings. For example, as Judge Fantin noted at [53] in JML, a defendant may seek access to documents in order to formulate lines of cross-examination, for example relating to potential inconsistent statements relating to the circumstances of the offence, or by using material in the records to suggest the complainant is unreliable.^[5]

17. [17]
    In JML it was said the word “substantial” connotes something important, ample or considerable.^[6] In the Australian Concise Oxford Dictionary it is said to mean “of real importance or value.”

18. [18]
    The principal facts in issue in this case would appear to be whether the complainant was sexually assaulted at all or if she was, whether this was without consent. Clearly enough, the credibility and the reliability of the complainant will be crucial in this case.

19. [19]
    Once the defendant establishes there is a substantial probative value in obtaining and inspecting the records, the second limb under s 14H(1)(b) of the Act is whether there are other documents or evidence available to which the communication relates.

20. [20]
    The final matter is the weighing of competing public interests (s 14H(1)(c) of the Act). That is, that the public interest in admitting the communication into evidence “substantially outweighs” the public interest in preserving the confidentiality of the communication and in protecting the counselled person from harm. This is a balancing exercise and the matters set out in s 14H(2) of the Act are matters to which the court must have regard.

21. [21]
    Turning to the relevant records, it is my opinion that a number of the documents do have a substantial probative value which far outweighs the need for confidentiality. These were identified by the counselled person. These documents largely relate to the significant mental health diagnoses of the counselled person which may significantly impact her credibility and reliability. In my opinion there is a significant mental health history which will require a Trial Judge to consider whether or not to give warnings to the jury as to the complainant’s evidence.

22. [22]
    Also there are also versions given about the alleged sexual assault which potentially are inconsistent with her version to the police in this particular case. These inconsistencies may well be of substantial importance to the parties in this case.

23. [23]
    It seems to me that a number of documents in the subpoenaed material (now to be disclosed) may be very important to the conduct of the case without which the defence may have been severely impacted. Indeed section 14H(2)(g) of the Act refers to the need for a defendant to make “full defence” to the charges. The fairness of the trial is a relevant consideration.

24. [24]
    It is for these reasons leave is granted to the parties to inspect and use these documents.

25. [25]
    As to the other documents which are PCC I am not satisfied that they are of substantial probative value and/or any probative value is outweighed by the need for confidentiality. I refuse access to those documents as identified in the Counselled person’s submissions.

Conclusion

26. [26]
    I will leave it to the counselled person to draft an order which reflects the reasons I have given in this case.