R v CJA[2024] QDCPR 70

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The issues to be determined in this matter arise in respect of a pre-trial application in respect of the application of the vexed provisions of Division 2A of Part 2 of the Evidence Act 1977. 
2. [2]
   The defendant is indicted in this Court upon charges of grooming, common assault, three instances of indecent treatment of a child and two instances of sexual assault.  All offences are alleged to have occurred between 22 November 2020 and 23 November 2022, in respect of the same complainant, a girl who lived near the defendant’s residence and was aged 14 to 16 years.
3. [3]
   On 23 January 2024, the defendant filed an application pursuant to s 14G of the Evidence Act 1977, for leave to:

“a. Issue a subpoena to compel the production of protected counselling communications to the Court; and further

b. Produce to a court, adduce evidence of or otherwise use, disclose, inspect or copy a protected counselling communication.”

The protected counselling communications (“PCC”) which are sought are identified, in the application, as the counselling records of a psychologist, Ms Doyle, in respect of her interactions with the complainant and directly leading to this matter coming to police attention.

4. [4]
   After compliance with the requirements for service and notification of that application and the appearance of legal representatives for the counselled person, the application was listed for hearing on 24 May 2024 (with directions as to the filing of materials including written submissions, in the interim).  When those orders were made, on 29 February 2024, that was in expressed contemplation that the written submissions would, as did occur, address the amendment made to s 14H of the Evidence Act 1977, effective as from 19 February 2024, to insert subsections (2A) and (2B).
5. [5]
   It is necessary to set out some of the detail of the history of this application since that point.  When the application came to be heard on 24 May 2024, the parties and the counselled person presented to the court a draft order to be made with the effective consent of each of them.^[1]  However and as was immediately noted by the Court, it remained that the Court be satisfied as to the provisions of s 14H(1) and it is necessarily apparent from what occurred in that hearing, that the Court proceeded to consider such requirements in the context of the materials which had been placed before the Court. 
6. [6]
   Accordingly, this application proceeded consistently with the application of the then existing Practice Direction 5 of 2021,^[2] in circumstances where the applicant necessarily sought access to the PCC by, in the first instance having leave to have the PCC subpoenaed into the control of the court, so that consideration might then be given to what use of the PCC might be permitted in connection with the proceeding on indictment.
7. [7]
   Effectively what was identified was that the court would act upon a sufficient similarity of circumstances so as to satisfy the test in s 14H(1),^[3] to those which were accepted as satisfying those requirements in R v TJ.^[4]  In short compass, those circumstances are reflected in an understanding that notwithstanding the bland assertion, in the statement of facts placed before the court on the application (as prepared by the prosecution), that during the period of the alleged grooming offence (22 November 2020 to 23 November 2022), the complainant “slowly … disclosed some of the offending to” named friends,^[5] the emergence of her complaint to the police as the foundation for the charging of the defendant is noted to have occurred, as follows (after notation in the offending alleged in Count 6 and 7, on her 16^th birthday, and reference to the defendant driving in his car and engaging with her two days later):

“26. After he left, she called her friend, …, and told her the defendant had followed her in his car.

27. At this point, the complainant’s friends encouraged her to disclose the offending to her parents.  However, she was reluctant and had convinced herself that it was not a big deal.

28. Nonetheless, the complainant disclosed the offences to her psychologist, who contacted her parents and requested their permission to submit a report to the police.

29. After her parents were informed of the offending, on second of December 2022, they took the complainant to the Police Station, where she made a formal complaint.”

Further to this and as set out in the counselled person written submissions filed 23 April 2024:

“3. The counselled person’s mother, … has provided a statement to police.  She says that in June 2022 the counselled person started seeing a new psychologist, Domonique Doyle (“Ms Doyle”).  She states that ‘after a few sessions’, Ms Doyle phoned her to say she was concerned about the applicant’s behaviour towards the counselled person over the last couple of years and to ask whether she could question the counselled person further on the topic.

4. On 20 November 2022, Ms Doyle submitted a report to the police regarding her concerns. 

5. On 2 December 2022, the counselled person attended the police station to provide a section 93A statement.  During her interview with police the counselled person states that she raised concerns about the applicant’s behaviour with her mother, who told her to stay away from him, that he was ‘probably drunk’ and ‘just being weird’.  The counselled person says that she doesn’t think her mother realised the extent of it and that it has taken her psychologist to talk to her and say: ‘it’s worse than you think it is’.”

The report submitted by Ms Doyle to the police is not included or further identified in the material and nothing has been raised in this application as to whether it contains any PCC or if so, as to any effect of such disclosure in respect of any relevance to the application the test under s 14H and particularly as it relates to the public interest of preservation of the confidentiality of the disclosures made to Ms Doyle.

8. [8]
   Whilst the order then made extended to granting leave to the legal representatives of the counselled person to inspect, copy and adduce the records returned in response to the subpoena, it did not extend to further proposed orders contemplating a proceeding of a kind consistent with the prescription in s 14M(2) and which was intended to proceed upon the basis of the legal representatives for the counselled person producing to the Court the subpoenaed documents and submissions as to the matters prescribed in s 14H and s 14M(2), with the parties to the proceeding only able to have engagement upon redacted versions of the submissions and materials to be so produced to the Court by the counselled person.
9. [9]
   In those circumstances, the order was made, as was the common position of each of the parties and the counselled person, granting leave for the psychologist’s records of her interactions with the counselled person, up to the point at which her formal complaint was made to police, to be subpoenaed into the custody of the court, with the application otherwise being adjourned to 15 July 2024, to further consider any application of the parties and particularly the applicant/defendant, for leave to inspect the records so produced in order to be then heard as to the specific or precise use that would be permitted of these records in connection with the proceeding.

Further Applications

10. [10]
    Prior to this matter returning to court on 15 July 2024, it became clear that the psychologist upon whom the subpoena was served, sought to object to having to comply with it.^[6] Whilst that is notionally an option open to such a person; that is, to apply to set aside or narrow a subpoena,^[7] some apparent difficulties are that:

    1. the effective document holder here is the “counsellor”,^[8] who was served with this application pursuant to s 14G(2)(b),^[9] but who had not previously exercised any right to appear upon this application pursuant to s 14L;
    2. as must have been apparent from the service of that subpoena,^[10] the Court had granted leave for that subpoena to issue and be served; and
    3. the Court had done so, in circumstances where the legal representative for the counselled person had not only conceded, in written submissions, that the Court might conclude that such an order be made in application of the s 14H criteria, but where such an order was presented to the Court as the appropriate conclusion, by each of the parties and the counselled person.
11. [11]
    As to the last consideration and particularly as it relates to the position taken on behalf of the counselled person, it is of no small moment.  Although it has not, to date, been expressly recognised in the course of dealing with this application, the counselled person is and was when this application was brought pursuant to s 14G, aged 16 or more, and subject to her being a person with impaired capacity for giving consent,^[11] able to waive her privilege, as provided in s 14I(2):

“(2) This division does not prevent the document being produced, or the evidence being adduced, if the counselled person to whom the protected counselling communication relates—

1. is 16 years or more; and

2. consents to the production of the document or adducing of the evidence; and

3. is not a person with an impaired capacity for giving the consent.”

That is not to say that any such waiver has occurred, but to note some important context in understanding the position taken for the counselled person on 24 May 2024 and also for the position now taken by the counsellor.

12. [12]
    Further and for present purposes, leaving aside one issue raised by the counsellor and which may be regarded as potentially going to the breadth of material sought under the subpoena, issues as to the harm which may be occasioned to the counselled person by the granting of any leave to issue that subpoena and more particularly the recognition of the public interest in protecting the counselled person from harm, is not just informed by the requirements of s 14H(2)^[12] but is subject to an expressly provided mechanism of provision of a statement of harm, pursuant to s 14H(3), so that the court may be advised of such prospect.  That is not to say that there might not be consideration of evidence from a counsellor, accepted as a matter to which regard must be had, as a court considers relevant pursuant to s 14H(2)(h).^[13]  But it would need to be in the form of evidence, such as would be amenable to appropriate cross-examination. It may be further observed that there would appear to be little to be gained by reassertion of the effect of the considerations mandated by s 14H(2) and that in contrast to the procedure provided under s 14H(3), might be problematic as far as it may entail public exposure of the particular circumstances of the counselled person such as might engage notions of harm as defined in s 14H(8).
13. [13]
    Here and in the context of what has been noted as to the common position of support for the orders made on 24 May 2024, no statement of harm was provided pursuant to s 14H(3).
14. [14]
    Even in respect of the issue relating to the breadth of the subpoena (which is more conveniently dealt with later in these reasons), there is the difficulty here that the documents holder is effectively the counsellor, who is given a right of appearance upon the application, from the outset.  However, such difficulties with an approach which seeks the setting aside of an order of this Court made in the exercise of the power provided in s 14F and upon satisfaction of the requirements of s 14H(1), were substantially overtaken by a change of position by the counselled person who through additional legal representation also sought that the Court set aside the order granting leave for the issue of the subpoena.^[14]
15. [15]
    As will be seen, the basis for this contention had potentiality to also affect the further conduct of this application, even if the grant of leave to issue the subpoena was not vacated. That is because the position now taken for the applicant is that not only should the court not vacate the earlier order but there should be a further order allowing the parties to this proceeding leave to inspect the documents once they are within the control of the court, for the purpose of the further consideration of the use to be allowed of them in the proceeding.
16. [16]
    The change in position of the counselled person is premised upon submissions as to the purpose and effect of the introduction of s 14H(2A) and (2B), as follows:

“(2A) For deciding the application, the court may do any of the following—

1. order a person to produce the protected counselling communication to the court;

2. consider the protected counselling communication;

3. make any other order it considers appropriate to facilitate its consideration of the protected counselling communication

(2B) If the protected counselling communication is produced to the court under subsection (2A), the court must not disclose it, or make it available to a party to the proceeding, before deciding the application.”

The contention made for the counselled person on 15 July 2024, is that the effect of the addition of the power provided by s 14H(2A) is that whilst it remains open to a court to dismiss an application brought pursuant to s 14G and under s 14F, without doing so, the court cannot allow such an application unless that power is engaged, so that the actual PCC is considered.^[15] Therefore, the contention is that the order made on 24 May 2024, must be set aside as invalidly made.

17. [17]
    It must be noted that this was a substantial shift from the position taken in respect of this issue, as had been flagged to be the subject of attention in the written submissions to be provided pursuant to the directions given on 29 February 2024.^[16]  In the context of what has already been noted as to the position taken for the counselled person in written submissions and ultimately in the hearing on 24 May 2024, it is to be noted that the written submission of the counselled person, expressly included the following:

“26. It is submitted that this is not a matter where the Court would be required to exercise the power pursuant to section 14H(2A) of the Act as the following is already known:

a. the timing of when the counselling occurred as compared to the date range of the allegations;

b. that the allegations were discussed with the counsellor; and

c.  that these discussions occurred before the allegations were reported to the police

27. In a case where these specific details were unknown, it may be that a court would order the production of the records so as to make such factual findings which would contribute to a determination of whether the records had substantial probative value, or whether a finely balanced case existed for other reasons.  In this situation, it is submitted that the applicant will have to satisfy the requirements in s. 14H of the Act for leave to be granted to issue the subpoenas.”^[17]

18. [18]
    Further, the written submission of the respondent was:

“2.1 The respondent’s submissions are made with the intention of assisting the court in these proceedings, but generally defers to the submissions on behalf of the counselled person.

2.2 In particular, the respondent defers to the submissions on behalf of the counselled person that this is not a matter where the Court would exercise its power to produce the records pursuant to section 14H(2A), effectively on the basis that power is more properly for cases in which relevant details about the records that would otherwise inform factual findings or assessment with respect to those records are simply not known.  That is not apposite to the present case.”

19. [19]
    Whilst it may be noted that the position taken in the written submissions of the applicant may be described as seeking to embrace the power in s 14H(2A) as being of a plenary kind, to be exercised in accordance with the interests of justice and regularly, as a simple, effective and preferable mechanism for having the documents brought before the court for consideration by it, the alternative of the Court granting leave to subpoena the documents was maintained.^[18]  Further and perhaps adding to the shifts in position which have occurred in respect of this matter, the position taken by the applicant in response to the most recent application made by the counselled person on 15 July 2024, was to resist the contention then made for the counselled person that the order made on 24 May 2024 should be set aside as being invalidly made.  It was contended that there is nothing to warrant the mandatory engagement of s 14H(2A), so as to enable the determination that had previously been made.  In the first instance attention was drawn to the wording of s 14H(1)(a) that the documents “will, by itself or having regard to other documents or evidence produced or adduced by the applicant have substantial probative value”, as being plainly contemplative of the approach whereby that consideration may be determined without specific reference to the document or evidence itself.  Further it was contended that the determination made by the Court was in appropriate reference, in those circumstances, to the entirety of the test required by s 14H(1) and that in terms of now moving to the “use stage” of the application, it was submitted that there:

“…will be different considerations, with different criteria having different force when it comes to determination of issues such as simply the production of that material by way of subpoena, the inspection of that material potentially is the next step, and then, of course, the use of that material during any trial, whether it be led by the Crown or be produced by cross-examination.”^[19]

20. [20]
    In the light of these complications, the absence of any resistance to the rearguing of the counselled person’s position and the potential application of that position to any further order to be made as to the use of any subpoenaed material, the matter was further heard. Upon reservation for decision, the only further order was to excuse the counsellor from compliance with the subpoena until further order.

Discussion

21. [21]
    It is, in my view, of importance to first understand the premise upon which Division 2A of Part 2 of the Evidence Act operates, apart from what has been introduced as s 14H(2A) and (2B).
22. [22]
    It effects a statutory form of privilege (in the form of prohibition) attaching to any “protected counselling communication”, a concept widely defined in s 14A.  However, that privilege is only engaged in respect of any such communication “in connection with proceedings to which subdivisions 2 and 3 apply”.^[20]  Relevantly to proceedings in this Court, that is in respect of proceedings to which subdivision 3 applies, being, as identified by s 14E, proceedings:

“(a) for the trial or sentencing of a person for an offence, other than a proceeding to which subdivision 2 applies; or

(b) relating to a domestic violence order.”

23. [23]
    Subject to any waiver of that privilege, which may occur pursuant to s 14I, the privilege pursuant to subdivision 2 has effect absolutely: s 14D, in terms of preventing any access to, dealings with or use of any PCC “in connection with the proceeding”.  Whereas and in respect of proceedings to which subdivision 3 applies, the privilege is qualified, in that the same things are prohibited “other than with the leave of the court hearing the proceeding”: s 14F.
24. [24]
    Importantly it must be further noted that the effect of s 14F is subject to a court granting leave for any one or more of the following things to be done, “in connection with the proceeding”:

“(a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;

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

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

The granting of such leave must necessarily be determined by the following test, as provided in s 14H(1):

“14H Deciding whether to grant leave

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

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

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

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.”

Although that test must be noted as heavily weighted in favour of the statutorily recognised public interests in preserving the confidentiality of the communication and protecting the counselled person from harm, it is otherwise to be noted as operating in some recognition of a long acknowledged public interest, as underpins our criminal justice system, in providing for a fair trial and proper opportunity for accused persons to defend themselves.^[21] The essential concept is as to a fair trial according to law, which underlying public interest is recognised in the prospect of an appropriate grant of leave pursuant to s 14F, in the context of the necessity to otherwise apply the provisions of subdivision 3, as the will of the legislature in restricting any access to PCC.

25. [25]
    Accordingly, the determination of any application for such leave,^[22] ultimately requires the application of a form of balancing exercise, as provided in s 14H(1)(c), in recognition of the identified competing public interests.  However, the statutory test is heavily weighted in favour of the statutorily recognised public interest in “preserving the confidentiality of the communication and protecting the counselled person from harm”, as those considerations are particularly informed and supported by statutorily prescribed considerations, to which the court is required to have regard pursuant to s 14H(2)(a) – (f): 

    1. First, pursuant s 14H(1)(a) and (b), there are two preconditions to any such balancing exercise being engaged, in that the Court must be satisfied that:

2. Then and to complete the necessary balancing exercise, the court must be satisfied that what is recognised as “the public interest in admitting the communication into evidence”, as informed by the further consideration to which regard is required by s 14H(2)(g), in terms of “the extent to which the communication is necessary to enable the accused person to make a full defence”:

26. [26]
    Whilst it is necessary to note that the ultimate application of that test is directed at the admission of the communication into evidence in the proceeding, it is equally made applicable to a number of the steps which may be necessary in order that any such admission into evidence might occur. In many instances and where the prohibition upon access to the PCC must be overcome “in connection with the proceeding”, as is the case here, the first step must necessarily be an application for leave to subpoena such material so as then to obtain access to it, so that it may be used, as desired, by being “adduced or otherwise used in evidence”, which is but one of the things proscribed in s 14F in respect of PCC.
27. [27]
    In contrast to the position taken on 24 May 2024, the contention now raised for the counselled person is that the order then made granting leave for the subpoena to issue, was invalid.  The effective contention is that whilst it may be open to a court to refuse such an application without having recourse to the PCC which is sought, such an application cannot be allowed without having such recourse. That is essentially premised upon the notion that the balancing exercise to be struck pursuant to s 14H(1)(c) is necessarily informed by a determination pursuant to s 14H(1)(a) that the PCC will have substantial probative value.
28. [28]
    As has been noted, the further implications of that argument as a reason for entertaining it was the applicant’s position in just not seeking to maintain the benefit of the order made on 24 May 2024 but also in seeking a further order in terms of allowing some immediate access to the contents of the document to be produced by way of subpoena.
29. [29]
    Whilst it has been recognised that, prior to the addition of subsections 14H(2A) and (2B), views have been expressed in favour of the expediency of an approach, from the outset, of enabling the production of the documents in issue to the Court for consideration of the s 14H(1) criteria, that is not a view which has been endorsed by a number of reasoned decisions in this Court, including by reference to the New South Wales authorities determined in the context of what has there been recognised as a statutory power to permit that to occur.^[24] Such an approach was also not endorsed in the decisions of the Supreme Court. In R v TRKJ (“TRKJ”),^[25] notwithstanding, as it will be necessary to later return, the finding of an implied power for a court to inspect the PCC in issue, in order to determine an application for leave pursuant to s 14F, the following observations are notable:

“[143] The words “unless the court is satisfied that” do not require the judge to consider the protected counselling documents, let alone place the Court in the role of an inquisitor.

[144] I do not agree that the Court could not be satisfied of the requirements of s 14H without viewing those documents, so that viewing the documents is mandatory. Depending on the evidence and submissions, the conditions may be satisfied by extrinsic evidence and inferences about what the counselled person said to the counsellor.

[145] The applicant bears the onus of satisfying the Court of each of the three conditions in s 14H(1). Discharging the onus may be difficult for a party without access to the documents. However, that is not a justification to displace the proposition that an applicant for leave bears the onus of satisfying the Court of the three conditions.

…

[196]  What is tolerably clear, however, is that the power to inspect at the leave stage is not to be exercised as a matter of routine. As has been said by District Court judges on more than one occasion, the Court is not required to trawl through protected counselling communications because the possibility exists that it might find something of probative value or even substantial probative value. The power is not to be exercised to fill deficiencies in proof that a communication, by itself or having regard to other documents or evidence adduced by the applicant, will have substantial probative value. It should not be exercised to satisfy curiosity or indulge speculation that something important may be turned up.

[197] To exercise the power in such a fashion would be to fail to recognise the shift that the creation of a statutory sexual assault counselling privilege was intended to achieve. Part 2, Div 2A enacted demanding thresholds for a person to compel production, to produce, to adduce or to use a protected counselling communication. Routine inspection by judges of protected counselling communications in circumstances in which it is neither necessary nor appropriate to do so has the potential to weaken one of the policy objectives of the legislation and to involve the Court in a task that it is not well-adapted to performing without assistance from an informed party.”^[26]

 As is noted and summarised in MH v HJ,^[27] the challenges to the District Court decisions in TRKJ, brought under the Judicial Review Act 1991, were dismissed in terms of establishing any error let alone jurisdictional error on the basis that the applications had been dismissed in circumstances where the primary judge had refused to inspect the documents before doing so.

30. [30]
    The submission for the counselled person is consistent with that approach only in so far as it supports the interests of the counselled person in maintaining the confidentiality of the communications and avoiding harm, by refusing an application. However and nevertheless, it is contended that a different conclusion in respect of allowance of any such application is driven by an understanding of the purpose and effect of the added subsections, in the context of the test that is to be applied pursuant to s 14H(1).
31. [31]
    However, the immediate question is as to how the permissively expressed additional power, provided pursuant to subsection (2A), results in even such a limited mandatory effect.
32. [32]
    In oral submissions,^[28] it was accepted for the counselled person that ultimately it is the text of the legislation, which is critical for statutory interpretation, including in the application of the preferred purposive approach.  As explained by the plurality in SZTAL v Minister for Immigration (2017) 262 CLR 362, [14]:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”

33. [33]
    Subsequently and in reference to these observations in SZTAL and the other authorities to which reference was there made, is the following explanation in Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd:^[29]

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.”  Context should be regarded at the first stage of the construction exercise, not merely at some later stage, and it should be taken “in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means…, one may discern the statute was intended to remedy”.

The citation for the propositions stated in the second sentence is to the same passage as cited in SZTAL from CIC Insurance v Bankstown Football Club Ltd,^[30] as follows:

“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure (46). Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”

34. [34]
    Understandably, the submissions for the counselled person do not seek to engage the terms of the explanatory notes for the insertion of subsections (2A) and (2B), as providing any assistance to the purposive approach to the interpretation or construction of them.  Indeed, attention was drawn to the exhortation found in Lacey v Attorney -General (Qld), to the effect that the content of such extrinsic material “cannot be substituted for the text of the law”.^[31] The reason is apparent from the following relevant extracts from those explanatory notes.^[32] First it was explained that:

“Two additional amendments to be moved relate to the Evidence Act 1977 to ensure the sexual assault counselling privilege (SACP) framework operates as intended by:

•  expressly providing that the court may, for the purpose of deciding an application for leave, order that protected counselling communication be produced to it and consider the communication; and

•  clarifying that if protected counselling communication is produced to the court in accordance with an order, the court must not make the communication available, or disclose its contents, to the parties to the proceeding before deciding the application for leave under the SACP framework.”^[33]

Subsequently, it was further stated that:

“The SACP framework seeks to ensure that victims or alleged victims of sexual assault are not deterred from seeking therapy through fear of having their confidential counselling communications disclosed during legal proceedings. The framework limits the disclosure and use of protected counselling communication during criminal proceedings (committal, bail, trial and sentencing proceedings), proceedings relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012 (DFVPA proceedings), and civil proceedings arising from the same act or omission as a criminal proceeding or DFVPA proceeding.

SACP is absolute in committal and bail proceedings and is qualified in criminal trials, sentencing hearings, and DFVPA proceedings. In proceedings where the privilege is qualified, a party may apply to the court for leave to produce to a court, adduce evidence of, or otherwise use a protected counselling communication, or otherwise disclose, inspect, or copy a protected counselling communication. The court may grant leave if the applicant satisfies the court that:

•  the communication will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value;

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

•  the public interest in admitting the communication substantially outweighs the public interest in preserving the confidentiality of the communication and protecting the victim or alleged victim of a sexual assault offence (‘counselled person’) from harm.

The SACP framework expressly provides that the court may consider a document or evidence to decide whether it is a protected counselling communication, but does not expressly provide that the court may consider protected counselling communication for the purpose of deciding whether to grant leave.

The Supreme Court of Queensland held in TRKJ v Director of Public Prosecutions that the court has an implied power to review protected counselling communication for the purpose of deciding whether the communication will have substantive probative value, as part of its power to hear and determine an application for leave.

The absence of express statutory authority for the court to obtain and consider protected counselling communication for the purpose of deciding an application for leave may result in the court’s power to obtain and consider protected counselling communication being legally challenged.

The amendments to be moved during consideration in detail of the Bill ensure the SACP framework operates as intended. The amendments confirm the implied power of the court to consider protected counselling communication for the purpose of deciding an application for leave by expressly providing that the court may order that protected counselling communication be produced to it and that it may consider the protected counselling communication. The amendments also clarify that if protected counselling communication is produced to the court in accordance with an order, the court must not make the communication available, or disclose its contents, to the parties to the proceeding before deciding the application for leave.

The amendments have retrospective effect, and provide that the rights and liabilities of all persons affected by any past exercise, or purported exercise, of jurisdiction of the court in dealing with a leave application and anything else done, or purportedly done, by a court or person in relation to a leave application are the same as they would have been if the provisions introduced by the amendments had been in force when the jurisdiction was exercised or the action was done.”^[34]

35. [35]
    However, these submissions do seek to engage what may be discerned from the challenge to the statutory scheme which was mounted by the appellant from the decision in MH v HJ,^[35] in CA 11598 of 2023, as some relevant context for the amendments.  The argument appears to be that perhaps having regard to the observation as to the prospect of legal challenge to the “SACP framework” in the explanatory notes, such reference may be indicative of the mischief to which the amendments are directed.  As explained in the affidavit of Kimberley Jane Allen,^[36] an appeal was brought against the order made in the Supreme Court in MH v HJ, quashing a direction of the District Court permitting the inspection of some PCC by the appellant/defendant and the prosecution.^[37]  It is noted that although that appeal had been listed to be heard by the Court of Appeal on 20 February 2024, the consequence was that, upon the passage of the Integrity and Other Legislation Amendment Act 2023, inserting s 14 H(2A) and (2B) into the Evidence Act 1977, as from 15 February 2024, the parties to the appeal executed a notice of agreement to dismissal of that appeal.
36. [36]
    An immediate difficulty is that unlike the position expressly noted in the explanatory note in reference to the decision in TRKJ, the references made to the outlines of argument in the discontinued appeal are not representative of any determination of any legal proposition.
37. [37]
    The counselled person draws particular attention to the outlines filed for the appellant in the appeal,^[38] in articulation of a challenge to the finding in the Supreme Court, not because of any direct challenge to the interpretation of the statutory scheme but rather on the basis that the statutory scheme of subdivision 3 left no room for the implication of a power to “permit parties to inspect a PCC before leave is granted under subdivision 3”.^[39]  Whilst that construction of the statutory scheme was accepted as correct,^[40] the challenge was as to the validity of the legislation having regard to the principle first identified in Kable v DPP (NSW):^[41]

    1. First, in terms of substantially undermining “the appearance of the Court’s impartiality in a controversy involving the competing interests of the accused, complainant and prosecution”.  The contention was that as the decision below had made clear, none of the acts proscribed by s 14F could be done without leave, “including production of PCC to the Court by any person, such conclusion leaving no room for a court hearing a leave application to be informed of the content of the PCC ‘in order to be satisfied that the PCC will … have substantial probative value’”.  It was then contended that the Court was left in a position where “it could almost never be satisfied of a matter that is essential to its power to grant leave, the substance of the provisions therefore being in operation, ‘a legislative direction to the Court that applications for leave always be dismissed’”;^[42] and
    2. Alternatively, it was contended that a court hearing such an application was denied “any capacity to ensure that ‘practical justice’ is afforded to the accused in these circumstances”.^[43]
38. [38]
    It is unnecessary to dwell upon the unusual circumstances in which the direction, which was impugned in MH v HJ, was given.  The effect of the decision in MH v HJ was to otherwise confirm views expressed in a number of instances in the District Court and also in the Supreme Court, that the things or actions which are referred to in s 14F are proscribed subject to the grant of leave of a court and that such leave can only be granted pursuant to the application of s 14H.  This includes, as was to be the next step in this particular matter, after the orders made on 24 May 2024, in consideration as to whether it was appropriate to grant leave for inspection of the subpoenaed records by the parties to the proceeding.
39. [39]
    The absence of utility in any more detailed consideration of the arguments in the appellant’s outline is made clear in the amended outline filed for the Attorney‑General (Qld) (as an intervener in the proceeding in the Supreme Court, as brought there pursuant to the Judicial Review Act 1991).  In the first instance, it was noted that the first step in the appellant’s argument is that “contrary to the view expressed in TRKJ, s 14F prevents a court from acquiring the PCC material without first granting leave.^[44] That outline proceeded in respect of contentions which first sought the dismissal of the appeal due to the lack of necessity to decide the Kable or constitutional point, particularly because of the contended amenity of s 14F to construction consistently with that determined in TRKJ, in allowing for the production to and inspection of the PCC by a court where necessary to determine an application and the essentiality of the absence of such power to the appellant’s arguments.^[45]
40. [40]
    Otherwise, it is notable that the outline for the Attorney-General proceeded to mount arguments as to the “untenability” of the appellant’s contentions as to infringement of the Kable principle.  In particular, there was contention raised as to proposition of there being no ‘“realistically possible circumstances’ in which a court could be satisfied that the material will have substantial probative value without first inspecting the PCC”.
41. [41]
    The submission in the appellant’s reply are mostly concerned with the submissions made for the Attorney-General and serve to further demonstrate the essentiality to the appellant’s argument that the correct interpretation for legislative scheme, consistently with the determination reached in MH v HJ, is that there is no basis upon which the Court may obtain and inspect the PCC in issue other than by a grant of leave for the occurrence of things or actions otherwise proscribed by s 14F.  Further, extensive submissions were then set out in refutation of what had been found to be an unstated power to do otherwise, in TKRJ and the submissions for the Attorney‑General which had sought to justify such an interpretation of s 14F. 
42. [42]
    It is unnecessary to examine these competing arguments in particular detail, except to understand that in seeking to justify the appellant’s position, in addition to his earlier submissions, reference was made to a contrary expression of view in R v TKRJ (No. 2),^[46] and also a contended difficulty in reconciling the position taken for the Attorney-General with the provision of the expressly limited power in s 14M(2), in allowing departure from the constraints of s 14 only in so far that a “court may consider a document or evidence to decide whether it is a protected counselling communication”.  The contention made was that such a provision not only stands in contrast to the implication of a general power to inspect such documents but would be rendered superfluous if the Court already had such an incidental power.  Further, an emphasis was placed on the need to pay particular regard to the text of the provision in determining its statutory purpose,^[47] and the unambiguous nature of the existing provisions in contrast to the comparable New South Wales provisions,^[48] in not expressly providing a power of inspection by the Court for the purpose of determining applications for leave pursuant to s 14F. 
43. [43]
    Accepting that the arguments raised in this undetermined appeal, may provide some context to the introduction of s 14H2(A) and 2(B), does not lend support for discernment of the legislative purpose or effect for which the counselled person contends.  Given the centrality of the contended absence of ability of the Court to inspect the PCC in determining any leave issue, to the appellant’s arguments, it is not surprising that, despite the appellant’s assertion at one point of the importance of having the Court of Appeal’s consideration of the legislative scheme,^[49] the appeal was effectively discontinued.
44. [44]
    The real difficulty of the absence of any ability for court inspection of PCC in applying this legislative scheme, may be discerned to more readily lie in cases where the material in question is already in the possession or knowledge of a party and not in what was the situation here and which may be expected it to be a more commonly confronted situation, where a defendant makes application for leave to subpoena the material, which necessarily must be in requirement of demonstration of what may be expected to be obtained and used, having regard to the s 14H(1) criteria.  In my view there is no other sensible approach consistent with the purpose of the legislative scheme, which clearly not only seeks to cloak such material as prima facie undisclosable for the purposes of a relevant proceeding but also provides a mechanism which is so heavily weighted against any such disclosure.
45. [45]
    It may therefore be observed that an effect of the amendments was to provide some further assimilation of the Queensland legislative scheme to the provisions of the New South Wales legislation scheme,^[50] as found in s 299B(1) and (3) of the Criminal Procedure Act 1986 (NSW).  Notably, those provisions also survived a constitutional challenge, based in considerations of denial of fair trial to defendants and the asserted illusory nature of the extent to which disclosure could be allowed.^[51]
46. [46]
    Accordingly, there is no basis for the contention made by the counselled person that in determining an application for leave pursuant to s 14F, a court, before granting such leave, including leave to subpoena PCC, is required to inspect that material.  As has been noted, that view of the requirements of s 14H has not been previously endorsed in a number of Queensland decisions, including by reference to New South Wales authorities determined in the context of the expressed power to do so, as that has now been introduced to s 14H; a power which in the New South Wales context has been recognised as discretionary rather than to mandatory effect.^[52] The contention of the counselled person has not been supported by any further New South Wales authority which is to any different effect.
47. [47]
    As has been noted as appropriately recognised in the arguments raised for the counselled person,^[53] the purpose of legislation as disclosed in the text, is a paramount consideration and here s 14H(2A) is expressly couched in permissive terms.  It is to be noted that the order which the counselled person now seeks to impugn is to allow what is still required by s 14F, in terms of leave to “compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court”, where that is otherwise prohibited. It can of course be observed that had the legislative purpose been to mandate that the court must act, at any stage, to have the documents produced, thereby cutting across the need to have leave to subpoena the material where that is necessary and the usual rights attaching upon the holder of such material in respect of the production of it, that could easily have been expressed by amendment to the legislative scheme.
48. [48]
    There may be some superficial attraction to the counselled person’s contention, in that it is not difficult to envisage how some such applications might be appropriately dismissed without any reference to the PCC in issue. But that is only because of an implicit acceptance of the position which has been  taken in a number of earlier decisions as to the operation of this legislation, including in TRKJ,^[54] as to necessity for an application seeking access to PCC, such as where it commences as an application for leave to subpoena such material, to be made and considered, at least in the first instance, without reference to the material to which access is sought. So much may be understood as being reflective of the purpose underlying the legislative scheme, which has not been altered, in preventing any access to PCC, including by subpoena in order to bring such material into the custody and control of a court, unless leave to do so is granted by a court by application of the s 14H(1). Necessarily, therefore, the counselled person’s submission does not embrace any notion that in deciding such applications, a court must have access to the material in question from the outset.
49. [49]
    However and allowing for the importance of the criteria in s 14H(1)(a), that the PCC “will have substantial probative value”, to the application of the test encapsulated in s 14H(1)(c), the contention, that with the addition of the express power allowing production to a court for that court’s consideration of the PCC in issue, that this must occur before any such application may be allowed, seeks an interpretation of the concept that the material “will have substantial probative value”, that has not been accepted from the outset of consideration of this legislation. As explained in R v TRKJ (No 2):^[55]

“[27] Section 14H(1)(a) requires an applicant to prove that the PCC ‘will, by itself or having regard to other documents or evidence…, have substantial probative value’. Courts have grappled with this phrase from an early point. In R v JML Fantin DCJ considered that in the context of this legislation ‘substantial’ connoted ‘very important, ample or considerable’. Her Honour regarded ‘substantial probative value’ as setting a standard higher than ‘legitimate forensic purpose’ or ‘significant probative value’, which was itself more than mere relevance. JML was considered by Judge Long in R v HJJ. His Honour noted that ‘substantial’ was capable of both quantitative (of ample or considerable size) and qualitative (real worth or value, corporeal) meanings. The view preferred by Judge Long was that ‘substantial’ in the context of this legislation referred to the quality of any probative value carried by the PCC, rather than a quantitative assessment. That is, the test will be satisfied where the judge concludes that the worth of the PCC, in the context of all relevant information, goes beyond mere relevance or having some probative value — it is necessary for the judge to be persuaded the PCC has some real worth or value sufficient to make it substantially probative.

[28] The terms of section 14H(1)(a) also require the judge to be satisfied that the PCC ‘will have’ substantial probative value. In ordinary English such a phrase might indicate the need for absolute certainty. That cannot be what it means in this legislation, or the test could never be satisfied. Thus, in R v JML, Fantin DCJ considered the phrase connoted ‘future certainty, or at the very least, likelihood, rather than mere possibility’.”

50. [50]
    It is a criterion which may be satisfied upon a high degree of expectation as to the probative value of the material, rather than in requiring absolute certainty as to that conclusion, as might have been the consequence of a requirement expressed in terms that the PCC “has substantial probative value”.^[56] Moreover the concern must necessarily be with the expected capacity of that material to have substantial probative value, rather than in any performance of the role of the ultimate arbiter of facts in terms of what effect it actually has.
51. [51]
    Necessarily and particularly where most applications for access to PCC will have to begin by application for leave to subpoena the material, this criterion is expressed in a prospective sense and the approach which has been identified is consistent with that identified in respect of the approach to the application of the consideration expressed in s 12(2)(c) of the Penalties and Sentences Act 1991, in respect of an exercise of discretion as to whether or not to order that a conviction be recorded for a criminal offence. In R v Cay Gersh and Schell; ex parte A-G (Qld), it was observed:^[57]

“Section 12(2)(c) speaks of the impact a conviction "will" have on the offender’s economic or social wellbeing or chances of finding employment. This involves an element of predicting the future. Ordinarily, the word "will" in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction.”

52. [52]
    Neither is any different approach necessarily required by the conjunction of the determination as to substantial probative value under s 14H(1)(a), with the balance to be determined under s 14H(1)(c) in terms of the protected public interests in preserving the confidentiality of the communication and protecting the counselled person from harm, being substantially outweighed by the public interest in admitting the communication into evidence. That balancing exercise is capable of being performed once the substantial probative value of the PCC is sufficiently identified as a matter of expectation, as is demonstrated by the analysis undertaken in R v TJ and adapted to the circumstances of this case, upon identification of the clear expectation that the material  will pertain to the necessarily important issue as to the emergence of the allegations brought against the defendant and therefore as to how and when such critical preliminary complaint was made and where, axiomatically, there is no other evidence available concerning that matter.^[58] 
53. [53]
    Moreover, the approach of the counselled person is likely to be a more problematic one in practice, particularly in understanding that it is premised on contentions made in an appeal which was directed at concerns as to affording practical justice to defendants in respect of determining applications under s 14F; bearing in mind that a purpose of s 14F is for the allowance of exemption from the strictures otherwise placed on access to and use of PCC “in connection with the proceedings”, where appropriate. Although not expressly maintained, even in the light of the further contentions of the counselled person, the original contention for the defendant was couched in terms of regarding s 14H(2A) as providing “an unfettered and wide-ranging power sufficient to efficiently deal with applications for leave associated with protected counselling communications” and not to be “sparingly exercised”.^[59] In my view, such a broad or expansive approach, is not acceptable in the context of the undoubted purposes of the legislative scheme in respect of PCC and having an obvious tendency to what, in my view, is an unacceptable approach of moving to resort to consideration of the PCC in question as a necessary component of determining any application for access to such material. Further, an obvious tendency of the counselled person’s contention may simply lie in some postponement of that approach.
54. [54]
    Neither is there anything to be discerned, in support of the counselled person’s contentions, in the addition of subsection (2B). It does not, in contrast to what is provided in s 14M, provide for any specific mechanisms for determination of any question arising pursuant to s 14F. Apart from being reflective of the effect of s 229B(3) of the Criminal Procedure Act 1986 (NSW), it serves to make clear the effect of s 14F and particularly as determined in MJ v HJ, in denying disclosure to the parties before the application under consideration is decided.  Subsection (2B) is expressed to only apply “if the protected counselling communication is produced to the court under subsection 2(A)”.  This restriction also serves to limit the breadth of the power otherwise expressed in subsection 2(A)(c).  It might allow, for instance, what has already occurred here in terms of an order allowing the legal representatives of the counselled person to have access to the material returned pursuant to the subpoena. But it may be necessary to reconsider that aspect of the order made on 24 May 2024, in the context of the further application of the defendant for leave to inspect the documents to be returned under the subpoena. This is because it must be understood that in dealing with applications to which this statutory scheme attaches, “in connection with the proceeding”, unless leave to do so is granted pursuant to s 14F or in exercise of some other power of the court to so order, the PCC cannot be disclosed by or accessed by any person, including the counselled person and that person’s legal representatives.
55. [55]
    The inclusion of subsection (2B), certainly does not mean, as may have been implicit in some of the submissions for the counselled person, that the effect is in turning an application for leave pursuant to s 14F into one to be ultimately determined with the particular assistance of the counselled person, largely to the exclusion of the parties to the proceeding. It may be another thing altogether to have the assistance of the legal representatives of the counselled person for the purposes of effecting any decision to exercise the powers under subsection (2A).
56. [56]
    More importantly, the counselled person’s contention is also not borne out by reference to the explanatory notes for the amendment.  Such extrinsic material may be appropriately considered in order to confirm the ordinary meaning of the provisions.^[60]  Here such consideration discloses specific reference to an objective of making express what had been found as an implied power in the decision in TRKJ.^[61]  In that regard, it is also necessary to note that in the context of otherwise construing the statutory scheme, the determination in TRKJ was as to an implied power available for sparing rather than routine or regular use:

“[90]  The need, on occasions, for a court to itself inspect documents that are the subject of a claim for privilege does not mean that the inspection of documents always is required. It does not mean that inspection becomes a matter of routine.

[91] In the separate context of claims to public interest immunity, inspection by the court of the documents may be “a very useful procedure for the court to enable resolution of any doubts as to the legitimacy of the claim … and also to assist it with the balancing process”. But the power of the court to inspect is “not to be exercised lightly or as a matter of course”.^[62]

….

[104]  The fact that a power exists for the court to itself inspect documents does not mean that it will be necessary or appropriate for a judge to exercise the power in most cases. It certainly does not mean that the power should be exercised as a matter of routine in applications under Subdivision 3. The implied power does not exist to cure deficiencies in proof by the applicant for a grant of leave.

[105] Its too frequent exercise would undermine a purpose of the      provisions which is to restrict access to protected counselling communications.”

57. [57]
    The appropriate conclusion is that the order made on 24 May 2024, granting leave to the defendant to issue and serve the subpoena on the counsellor, Ms Doyle, has not been demonstrated to have been invalidly made.

The breadth of the subpoena

58. [58]
    Accordingly, and before moving to consideration of the defendant’s further application for leave to inspect the material to be produced under that subpoena, it is necessary to return to those contentions of the counsellor which may be regarded as raising an objection to the breadth of material which is the subject of the subpoena. 
59. [59]
    The effect of that objection was that not all material which would be produced will relate to or refer to interactions of the complainant with the defendant.  The proposition was expressed by Ms Doyle as follows:

“The information that’s in the notes are not pertaining to the [CJA] case so to speak.  The information that was reported to the police encompasses everything.  The other parts of the notes are severely detrimental to the minor and relate to things completely unrelated to the case and would severely harm that minor and her family and the relationship that we’ve built over the years, and it’s very sensitive and leaves her in a very vulnerable position.  So I’d love to see certain information redacted, or her support people to have that first and passed on what is helpful to the case, if possible, Your Honour.”^[63]

There are some evident difficulties and perhaps some unwarranted assumptions.  The assertions as to occasioning severe harm to the counselled person are just that and not directly supported by evidence, such as is specifically contemplated in the form of statement of harm.  Otherwise, the letter sent to the Court by Ms Doyle elaborates as follows:^[64]

“The release of these therapy notes could potentially cause significant harm to [the counselled person’s] mental health and well-being.  The therapeutic relationship is built on trust and confidentiality, and the disclosure of these sensitive notes could not only damage this trust but also severely impact on [the counselled person’s] progress and mental health and stability.  Such exposure might exacerbate her psychological distress, potentially leading to worsening symptoms and impeding her recovery process.

I understand the legal importance of the subpoena and have released confidential notes previously without concern; however, the primary concern must be the best interests of the minor.  Revealing these notes might strain her family relationships further and cause her considerable emotional and psychological harm.  The sensitive nature of the information contained in the notes necessitates the careful consideration of the potential adverse effect on [the counselled person].”

Not only are these contentions couched in less definite language, they are effectively reflective of statutory considerations which are mandated in s 14H(2), in the weighting against disclosure of such material, and which have already been the subject of this Court’s consideration in the determination permitted by s 14F and made on 24 May 2024.

60. [60]
    Further, any assumption that it is for the legal representatives of the counselled person to determine and “pass on what is helpful [or relevant] to the case” is unwarranted.  The counselled person, typically through legal representatives, has been given standing to be heard in respect of these applications: s 14L(1)(b)(ii).  But that has to be understood in the context of the opportunity which must necessarily be afforded to the parties (defendant and prosecution) to also be heard.
61. [61]
    It is also necessary to understand that applications in respect of the separate things or activities as proscribed by s 14F may arise and that not all such applications must necessarily begin with an application for leave to subpoena PCC; although that must necessarily be the starting point where the applicant does not otherwise have access to or knowledge of the PCC.  Moreover, and as discussed in R v TKRJ (No. 2),^[65] an application which begins as one for access to such material by way of leave to subpoena it, may entail multiple determinations upon the path to properly determining and limiting the actual use that may be permitted of the material by way of adduction into evidence, or otherwise, and as to how that is to occur.  Such an approach may be seen as being entirely consistent with the power of the court expressed in s 14N to act 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”. Notably and understandably, this power to make “any order [considered] appropriate” is not expressed in reference to the otherwise recognised public interest in preserving the confidentiality of the communication  and may therefore be understood as directed at circumstances, such as have been reached here, where there has been a determination pursuant to s 14F and s 14H(1) that production and adduction of PCC in evidence is warranted.
62. [62]
    More fundamentally, apart from an appearance of lack of appreciation that the subpoena had been issued upon a determination of the Court pursuant to s 14F and in accordance with s 14H, it is unclear as to what understanding there had been of the position taken for the counselled person in respect of that determination and also as to the basis upon which that determination had been made.
63. [63]
    As has been noted, the Court proceeded in application of the reasoning applied in somewhat comparable circumstances in R v TJ,^[66] particularly in the sense of understanding the effect of the materials in evidencing the essentiality of the complainant’s engagement with the psychologist in the emergence of her complaints and the reporting of them to police. Whilst it is the disclosures about the alleged offences which will constitute the preliminary complaint evidence, it is necessary to understand that what is identified as relevant and admissible is “evidence of how and when” such disclosures were made.^[67] That necessarily means that an understanding of the context to the making of those directly relevant disclosures will also be of relevant importance, including as to what would be adduced in evidence or otherwise used, so that the jury will have the necessary evidence for determination as to whether the circumstances of these disclosures tell for or against the credibility of the complainant’s evidence.
64. [64]
    Accordingly, the bare contention raised by Ms Doyle, as to the breadth of the terms of the subpoena, is not made out. It is appropriate, in the circumstances of this case, that all the records of her interactions with the complainant up until the complainants first formal statement to police, be at least brought into the control of the Court. It may be that, as is now pressed for the applicant, that, as previously contemplated, the circumstances warranting that conclusion in the application of the s 14H(1) criteria are sufficient to also warrant leave to inspect those documents being granted to the legal representatives of the parties, for the purpose of the further and precise determination, to the extent that it may be necessary, of the further question as to leave to “adduce evidence of or otherwise use” such PCC.

Conclusions

65. [65]
    Upon the further hearing of this matter, it was, understandably, accepted for the counselled person that such potentially separate questions may arise pursuant to s 14F and that provided that the provisions of s 14H(1) are applied, in each instance, any of the proscribed things or acts may be authorised. However and particularly upon the rejection of the counselled person’s contention that it would also be necessary to do so, before granting the parties leave to inspect the material, the counselled person and the parties should be given opportunity to be heard as to whether it is nevertheless appropriate in the circumstances and particularly once the documents are within the control of the Court, to consider them, before allowing the parties leave to inspect them.
66. [66]
    Accordingly, each of the applications of the counselled person and Ms Doyle to set aside the order granting leave for the subpoena, as made on 24 May 2024, is dismissed, as is the effective application of Ms Doyle to narrow the terms of the subpoena so authorised. It will now be appropriate to allow opportunity for the parties and the counselled person and Ms Doyle (to the extent to which she may wish to further exercise her right of appearance pursuant to s 14L of the Evidence Act 1977), to be heard as to the incidental orders and the remaining issues arising pursuant to s 14F, commencing with the application of the defendant to be grated leave to inspect the documents to be returned under the subpoena.