EFW v R[2023] QDCPR 33

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks an order, pursuant to s 14G of the Evidence Act 1977 (Qld) (“the Act”), for leave to subpoena, inspect and copy the mental health records of the complainant held by the Everton Hills Family Practice and the Metro North Hospital and Health Service including any protected counselling communications contained within them.
2. [2]
   The indictment before the Court charges the applicant with:

   • one count of disabling to commit an indictable offence;
   • two counts of rape;
   • one count of attempted rape; and
   • one count of sexual assault, with a circumstance of aggravation.
3. [3]
   By application filed 15 March 2023, the applicant seeks leave under Pt 2, Div 2A, sub div 3 of the Act to:

   1. compel the production of protected counselling communications to the Court;
   2. produce to the Court, adduce evidence of or otherwise use a protected counselling communication at trial; and
   3. otherwise disclose, inspect or copy a protected counselling communication.
4. [4]
   There is no dispute that for this application the complainant is a “counselled person” under s.14B of the Act and it is her counselling records to which the application relates.
5. [5]
   The counselled person opposes the application.  
6. [6]
   The issues for determination are:

   1. whether the records are protected counselling communications; and
   2. whether the preconditions to the granting of the leave sought as identified in s.14H(1) of the Act have been satisfied.

1. [7]
   The applicant has previously sought and been granted leave pursuant to s 14G of the Act to issue subpoenas to compel production to the court of protected counselling communications from the entities mentioned in paragraph [9].
2. [8]
   Such leave was granted by Rafter SC DCJ on 10 March 2023 in relation to the Everton Hills Family Practice and by McGinness DCJ on 29 March 2023 in relation to the Metro North Hospital and Health Service.  On each occasion leave was granted to the counselled person and her legal representatives to inspect, copy and adduce the records produced under subpoena.
3. [9]
   Those subpoenas have resulted in material being provided to the Court from the following entities:

   1. Toombul Medical Centre (aka Everton Family Hills Practice);
   2. Metro North Health; 
   3. Prince Charles Hospital;
   4. Caboolture Hospital; and
   5. Royal Brisbane and Women’s Hospital.

Factual background

1. [10]
   All charges relate to the one complainant who is 17 years of age.
2. [11]
   The offence location is 52 Edgar Street, Northgate in respect of all offences.
3. [12]
   The counselled person met the applicant a couple of weeks prior to the offending.  She was sitting with her mother at a bus stop in Northgate when she saw the applicant walking past.  She yelled out “hey, do you know anyone that could get on?” The applicant confirmed he did and walked them to the house at 52 Edgar Street, Northgate.  There she met a witness, Kym Hyde who supplied her with $50 worth of cannabis.  
4. [13]
   The counselled person exchanged phone numbers with Ms Hyde.

Offence date

1. [14]
   On 15 October 2021, the counselled person called Ms Hyde and asked if she could supply her with cannabis.  Ms Hyde invited her to her home to sort it out from there.  

1. [15]
   When the counselled person arrived at the house, she saw the applicant there with Ms Hyde.  They sat on the couch and watched television while consuming some food and alcohol.  The counselled person knew at this point that the applicant’s name was “Will”.
2. [16]
   The applicant told her to come with him to Cleveland, as he needed to report to police there, and said he knew a person who could ‘get them on’. 
3. [17]
   The counselled person and the applicant walked to the Northgate train station and caught a train to Cleveland.  
4. [18]
   At 6:53pm, the applicant sent a message to the counselled person (notwithstanding the fact that they were in each other’s company at the time) stating, “my number”.
5. [19]
   At 7:30pm, the applicant sent a message to the counselled person stating, “what you thinking”.
6. [20]
   She responded at 7:47pm stating, “more drinks buds ahahaha”.
7. [21]
   At around 7:56pm, the counselled person and the applicant arrived at the Cleveland Police Station and left three minutes later.
8. [22]
   The applicant told the counselled person “My friend is stuffing me around, we’ll go to the bottle shop and get more drinks.”  They then walked to a liquor store which was about 10 minutes away.  The applicant purchased a sixpack of premixed spirits whilst the counselled person waited outside.
9. [23]
   They then walked to an open park across from the Cleveland railway station.  They each consumed two cans of alcohol and listened to music.  They did not talk much but the applicant said, “my mate is fucking me around too much, did you want to catch this train or the next train?”.  The counselled person suggested they catch the next train to arrive due to the time and her low phone battery.
10. [24]
    They walked to the Cleveland railway station and boarded the Shorncliffe train.  They sat diagonally opposite in a four seated cubicle.  The applicant touched the counselled person on her leg above the knee.  She stated that there were no words exchanged between them.
11. [25]
    During the journey, the following text message occurred between the applicant and the counselled person:

 Applicant:    “you know what we should do”

 Counselled person:  “what?”

 Applicant:    “have @$#”

1. [26]
   The counselled person states that she accidentally reacted to the applicant’s last message with a love heart symbol.
2. [27]
   The same message exchange then continued as follows:

 Applicant:    “so yes???”

Counselled person:  “whats the @$# mean ??” Applicant:    “3 letters guess”

1. [28]
   The counselled person sent messages to a friend indicating that she thought the applicant wanted to have sex with her, that she was scared and that he was on the train following her.
2. [29]
   The applicant decided to get off the train at Nundah because he thought police would be at Northgate.  He suggested walking back to Ms Hyde’s house because they could get cannabis there.  
3. [30]
   They both walked for 15 minutes and arrived at that house.
4. [31]
   When they arrived at the house the front door was locked.  They walked to the back patio and the applicant searched a fruit bowl for the keys.  The counselled person says they gave up searching after 15 minutes.
5. [32]
   The applicant laid on the turfed patio area and said, “sit on the rug, Kym will be back in about 10 to 15 minutes with bud”.  The counselled person sat cross legged on the floor within an arm’s length away.  The applicant reached over and began massaging her neck under the hoodie.  She was uncomfortable and said “stop, what are you doing?”.
6. [33]
   The applicant grabbed her by the back of the neck and pulled her to the ground.  He pulled his jeans and underwear down to his thighs and got on top of the counselled person.  His penis was erect.
7. [34]
   He pulled her pants and underwear down despite her protests.
8. [35]
   He grabbed her by the throat with one hand and held her down.  Her glasses fell off. 

He squeezed her neck until she fell unconscious.

1. [36]
   When she regained consciousness, she was being vaginally raped by the applicant. 

He thrusted with his penis three to four times and then stopped.

1. [37]
   The applicant then aggressively flipped her over, placed both of her arms behind her back causing pain and then attempted to force his penis into her anus.  She described that the applicant attempted this for 10 seconds and it caused extreme pain.
2. [38]
   While face down on the ground with her arms held behind her back, the applicant kissed the counselled person on her vagina.
3. [39]
   The applicant flipped her over again and placed one hand on her neck and the other on her arms.  He then vaginally raped her again.
4. [40]
   She then saw the applicant produce a syringe and needle and said words to the effect “I am going to give you some ice” and “you’ll like the feeling this gives you.”  He rolled up her sleeve and she saw the needle within a few inches of her arm.  She kicked the applicant to the groin and stomach.  He fell into the screen door.  She then used a bucket or crate to hit him before running away.
5. [41]
   The counselled person left the house on foot and walked to an associate’s unit at Ryans Road Nundah.  She was seen on CCTV footage walking through Northgate station and appeared to be distressed.  
6. [42]
   When the counselled person arrived at that unit she told her associate that she had been raped.  Another witness said that she observed scratches around the counselled person’s wrists, marks around her neck and an egg on her forehead.  The counselled person said that she had to sit with her legs apart because of the pain in her vagina and anus.
7. [43]
   One of the associates looked at her vagina and made an observation that it appeared like it would after sex.  Another person telephoned police who subsequently attended that address at 12:25am on 16 October 2021.
8. [44]
   Police seized samples of toilet paper for forensic testing.
9. [45]
   First responding police were wearing Body Warn Cameras which were activated.  This footage depicts the counselled person showing extreme levels of pain when moving or standing.
10. [46]
    At 1:47am the counselled person was admitted to the Royal Brisbane and Women’s Hospital.  She was examined at 2:57am.  She had no external or internal injuries other than a bruise on her knee.  This was inconsistent with her demeanour in Body Worn Camera footage where she was observably showing extreme levels of pain in even moving.
11. [47]
    One day later she was treated by the Queensland Ambulance Service for vaginal pain and post coital bleeding.  During this interaction with the counselled person, it was noted that she had a history of schizophrenia.  She made complaints of the pain level being 10/10.  

Metro North Hospital and Health Service records

1. [48]
   The Crown have disclosed to the defence a report which identified that the counselled person has previously been detained on an involuntary basis under an Emergency Examination Authority (EEA) on the following dates: 6 October 2017, 6 January 2018, 18 December 2020, 24 December 2020, 22 April 2021, 18 September 2021, 18 October 2021 and 30 October 2021.

DNA results

1. [49]
   When the counselled person was examined at the Royal Brisbane and Women’s Hospital, swabs were taken from the vaginal and perianal region.  There was no semen detected and, while there was a mixed DNA profile, it was estimated that it was unlikely that the defendant contributed DNA to it.
2. [50]
   The opinion regarding the remaining DNA results was as follows:

   1. glans penis swab – it was estimated that it was 43 times more likely that the counselled person contributed then if she did not;
   2. shaft penis swab – while two contributors were detected, the counselled person was excluded as a contributor;
   3. base penis swab – it was estimated that it was 18 times more likely that the counselled person contributed than if she did not;
   4. toilet paper piece #1 –
      1. epithelial fraction 1 – three times more likely that the applicant contributed than if he did not;
      2. epithelial fraction 2 – 11 times more likely that the applicant contributed than if he did not;
      3. epithelial fraction 3 – 21 times more likely that the applicant contributed than if he did not;
      4. epithelial fraction 4 – unsuitable for analysis; and
      5. epithelial fraction 5 – unsuitable for analysis.
   5. toilet paper piece #2 – mixed DNA profiles from two contributors.  It was opined that it was 160 times more likely that the applicant contributed than if he did not.
3. [51]
   It is to be noted however, that further DNA testing will need to be undertaken in accordance with the recommendations made by the Commissioner of the Inquiry into Forensic DNA Testing in Queensland.  The parties have agreed however, that the outcome of any such further testing will likely have no relevance to this application.

The central issue at trial

1. [52]
   Counsel for the applicant has identified that the crucial issue that will be in dispute at trial will be whether the Crown can prove beyond reasonable doubt that the events the subject of each charge occurred.  Therefore, the counselled person’s credibility and reliability will be of critical importance.

Legislative provisions

1. [53]
   An application for leave to avoid the operation of s.14F of the Act is to be made, and determined, in accordance with ss.14G and 14H.  Section 14H prescribes the test to be satisfied before the Court can grant leave.  It states:

“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
   3. 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.
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. anyone who is not an essential person; and
2. an essential person, if—

1. the counselled person asks that the essential person be excluded; and
2. 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.”

1. [54]
   Before leave can be granted, the Court must be satisfied that each of the three requirements in s.14H(1) have been met.^[1]  In that regard, 

“The sexual assault counselling privilege scheme in pt 2, div 2A of the Evidence Act 1977 seeks to balance the competing public interests of ensuring a fair trial of an accused with respecting the privacy of counselling communications.”^[2]

1. [55]
   Before determining whether leave should be granted, it is first necessary to decide if a document is a protected counselling communication as defined in s.14A.  
2. [56]
   Whilst there is some disagreement between judges on this bench as to the approach that the Court should adopt in making such a determination,^[3] I agree with the approach identified by Williamson QC DCJ for the reasons he articulated in R v LCF(2021) QDCPR 60 at [22]-[41] and as adopted by Kefford DCJ in R v PSR [2021] QDCPR 66 at [29], that there is no implied limitation on the Court in considering the relevant protected counselling communication.

Are the documents produced protected counselling communications

1. [57]
   Section 14A of the Act states:

“14A Meaning of protected counselling communication

1. (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.

1. (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.
2. (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.

1. (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.

1. (5)
   In this section—

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

1. [58]
   Counsel for the counselled person (Ms Taylor) has prepared a schedule in relation to the subpoenaed material.  That schedule, helpfully, identifies those records which it is believed constitute protected counselling communication, those that do not and those about which there is some uncertainty.  
2. [59]
   Those about which some uncertainty was said to exist all fall within the same category and are documents which were generated as a result of the counselled person having been detained on an involuntary basis under an Emergency Examination Authority on the following dates: 6 October 2017, 6 January 2018, 18 December 2020, 24 December 2020, 22 April 2021, 18 September 2021, 18 October 2021 and 30 October 2021.
3. [60]
   In the course of considering this matter I have viewed such documents and in my opinion they do not constitute protected counselling communications.  The entries contained within them only relate to observations and do not touch upon any matter that might be considered to fall within the definition of protected counselling communications.

Applicant’s submissions

1. [61]
   The applicant has submitted that the documents in question would have substantial probative value as they may assist in the formulation of cross-examination of the counselled person.
2. [62]
   Of course, the applicant has not seen the documents in question, but has nevertheless based that submission on the fact that the counselled person has been detained on an involuntary basis under the Mental Health Act 2016 (Qld) on eight occasions pursuant to an Emergency Examination Authority.  Particular reliance is placed on the fact that one of those occasions was a month before and two other occasions were immediately after the alleged offending conduct of the applicant.  
3. [63]
   It is submitted that disclosure of the documents may identify the severity of the counselled person’s schizophrenia and whether it was being treated by medication.
4. [64]
   The applicant further submits that the presence of psychiatric stressors may call into question the reliability of the counselled person as a witness, particularly where she had consumed some alcohol on the day in question whilst on antianxiety, antipsychotic and antidepressant medication.
5. [65]
   Finally, the applicant has submitted that the police statement does not contain any detail of her diagnosis of schizophrenia or her treatment and that there is no other source from which such evidence could be obtained, and accordingly, it would be in the interests of justice to make the order sought.

Counselled person’s submissions

1. [66]
   The counselled person has submitted that:

   1. certain documents within the subpoenaed material have been identified as protected counselling communications pursuant to ss 14A(1),(3) and (4);
   2. some of those documents reveal information which may be or are of substantial probative value;
   3. there are other documents which do not constitute protected counselling communications which are available, and which provide the applicant with the information sought; and
   4. in any event, even if the Court concluded that some of the protected counselling communication documents contained information that amounts to having substantial probative value that could not be obtained elsewhere, that fact would not outweigh the public interest in preserving the confidentiality of the communications and protecting the counselled person from harm.
2. [67]
   In relation to (d) above, the counselled person also relies on her Statement of Harm which is before the Court.  

Crown’s submissions

1. [68]
   The Crown has made no submissions on this application and maintains a neutral position.

Process of determination

1. [69]
   To determine this application the Court must first determine which of the records held by the Court fall within the definition of protected counselling communication as defined by s 14A(1) of the Act; and if the documents do fall within that definition, the Court must then consider whether any of those documents;

   1. contain information of substantially probative value; and if so
   2. consider whether other documents or evidence are, or are not, available concerning the matters to which the communication relates; and 
   3. weigh the public interest considerations required by s 14H(1)(c) with regard to the matters contained in s 14H(2).
2. [70]
   In relation to the documents that may contain protected counselling communications, a determination must be made by the Court as to whether their contents do in fact contain protected counselling communication.  Section 14M of the Act allows the Court to consider a document or evidence to decide whether it is a protected counselling communication.
3. [71]
   The Court is required to examine for itself whether the documents are protected counselling communication and, if so, determine whether leave should be granted to the applicant.  This places a heavy burden on the Court, but it is an inescapable consequence of the legislation.^[4]

Do the records fall within the definition of protected counselling communication?

1. [72]
   Section 14A(1) sets out the meaning of a “protected counselling communication”.  It is an oral or a 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.

1. [73]
   Section 14A(3) states that it does not matter whether the communication was made:

   1. before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or
   2. in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person.
2. [74]
   Section 14A(4) provides that a reference to a protected counselling 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.
3. [75]
   “Counselled person” means a person who – 

   1. is being or has at any time been, counselled by a counsellor; and
   2. is, or has been, a victim or alleged victim of a sexual assault offence.^[5]
4. [76]
   “Sexual assault offence” is broadly defined as an offence of a sexual nature or an act or admission which would constitute an offence of a sexual nature.^[6]
5. [77]
   “Counsellor” is also broadly defined as a person who:

   1. has undertaken training or study, or has experience, that is relevant to the process of counselling other persons; and
   2. in the course of the persons paid or voluntary employment, other than as a religious representative, counsels another person.⁷
6. [78]
   “Counsel” is defined to mean:

1. to listen to and give verbal or other support, help or encouragement to the person, whether one on one or in a group; or
2. to advise, give therapy to or treat the person, whether one on one or in a group.^[7]

1. [79]
   Accordingly, a document which:

   1. discloses a communication made in confidence by a counselled person to a counsellor; or
   2. contains a communication made in confidence to or about a counselled person to further the counselling process.

would ordinarily be a protected counselling communication.

1. [80]
   The use of the word “counselling” within the definition of “counsellor” should be read in the context of the definition of “counsel” as defined in s 14B.  Accordingly, where is appears from the face of a document that the “counsellor” has undertaken training or study, or has experience, that is relevant to the process of:

   1. listening to and giving verbal or other support; or
   2. help or encouragement to the person; or
   3. advising; or
   4. giving therapy to or treating the person.

the Court would find the author to be a “counsellor” as defined by s 14B.

1. [81]
   As I have said, counsel for the counselled person has helpfully identified in her unredacted submissions those documents which she submits fall within the definition of protected counselling communication.
2. [82]
   I have read the contents of each and every such document.
3. [83]
   Upon my reading of such documents, I am in full agreement with the assessment in that regard of counsel for the counselled person.

1. [84]
   As I have already observed, the documents which arise as a result of the emergency examination orders do not fall within the definition of protected counselling communication.  I note that counsel for the counselled person has not sought to challenge my view in that regard.
2. [85]
   Therefore, as those documents do not constitute protected counselling communication, this application does not apply to them.  Nevertheless, the Court will need to consider the application for leave in respect of the remaining documents that constitute protected counselling communication.
3. [86]
   Pursuant to s 14F, there are really three stages to the process.  The first is to obtain leave to compel, by way of subpoena, another person to produce a protected counselling communication to a Court.  The second is to obtain leave to inspect or copy a protected counselling communication. The third is to obtain leave to adduce evidence of or otherwise use a protected counselling communication.  It seems to me that this should involve separate applications as each may, depending upon circumstances, involve separate consideration.  Given my views in that regard, I will deal with the application to inspect and copy the protected counselling communication in this matter, and I expect that the outcome of this part of the application may very well determine the outcome of the other if it comes before the Court in future. 
4. [87]
   Of course, the Court must also consider the counselled person’s statement outlining the harm that she is likely to suffer if the application is granted.^[8]  That consideration is only of relevance to the competing public interest considerations.

Substantial probative value

1. [88]
   The first matter to be considered is whether, pursuant to s 14H(1)(a), the protected counselling communication will, by itself or having regard to other documents or evidence produced or adduced by the applicant (of which there were none), have substantial probative value.  In R v JML, Fantin DCJ said that “substantial” connotes something very important, ample or considerable and “substantial probative value” requires a higher standard of relevance than significant probative value, which itself connotes something more than mere relevance.^[9]

1. [89]
   That can only be determined by an analysis of the facts in issue in the proceedings.^[10]  Here the fact in issue is whether the offending happened at all, and accordingly, the credibility and the reliability of the counselled person will be crucial in the case.
2. [90]
   To assist the Court, Ms Taylor has identified in her unredacted submissions those parts of the protected counselling communications which most likely require particular consideration as to their probative value.  I have carefully read each of those documents.  I agree that they are documents that require the most consideration. Ultimately, I have concluded somewhat differently to the potentiality as identified by Ms Taylor in her submissions.

1. [91]
   Whilst I accept that some of those documents contain information which may have some probative value, I am not of the view that, with certain exceptions, the documents contain information which could be said to constitute “substantial probative value”.  That is my view irrespective of whether the documents are considered individually or collectively.
2. [92]
   Furthermore, in respect of those documents, part of the potentially relevant information contained within them, can also be found in the documents which have been generated pursuant to the Emergency Examination Orders, which I have already concluded do not constitute protected counselling communications.
3. [93]
   Additionally, I note that the applicant is already in possession of the knowledge that the counselled person was, at the relevant time, the recipient of prescriptions for diazepam, olanzapine and sertraline.^[11]  Information as to the effects of these drugs, either individually or collectively and their individual or collective interactive effect with alcohol can readily be obtained from another source.
4. [94]
   Insofar as the exceptions are concerned, in my opinion the following documents contain information of a substantial probative value:

Toombul Medical Centre

Prince Charles Hospital

Prince Charles Hospital

1. [95]
   I am also satisfied that the information which constitutes substantial probative value in those documents is not available to the applicant from any other source.
2. [96]
   Furthermore, the information contained in those documents is of such a nature that the public interest in allowing the applicant’s legal representatives to access them substantially outweighs the public interest in preserving the confidentiality of the communications in protecting the counselled person from harm.
3. [97]
   Of course, when weighing public interest considerations, the Court needs to consider 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; and
8. any other matter the Court considers relevant.

1. [98]
   Taking all those matters into account and given the nature of the information contained within the documents that are detailed above, I do not perceive that the counselled person will suffer harm as a consequence of those documents being made available to the defence.

Orders

1. 1.I will hear the parties as to the orders to be made.