MH v HJ[2023] QSC 176

SUPREME COURT OF QUEENSLAND

1. [1]
   The first respondent to this application has been charged on indictment in the District Court of Queensland with nine counts of indecent treatment of a child under 12, under care and six counts of rape.  The applicant is the complainant in respect of the alleged offending which has given rise to those charges. 
2. [2]
   The first respondent brought an application in the District Court proceeding for leave to access records containing “protected counselling communications” (PCC material) concerning the applicant.  The provisions governing access to PCC material are set out in part 2, div 2A, sub-div 3 of the Evidence Act 1977 (Qld) (the Act).
3. [3]
   On 14 April 2023, the learned District Court judge hearing the application for leave made a direction that the legal representatives for the first respondent and the second respondent—the prosecution in the criminal proceeding—be permitted to inspect the PCC material (the impugned direction).^[1]  His Honour stated that the inspection was being permitted so that there was an opportunity for the legal representatives for the parties to the criminal proceeding to be heard, and an appropriate basis for the court to determine, whether use of that PCC material was to be permitted in the criminal proceeding.^[2]
4. [4]
   The applicant now seeks to engage this court’s supervisory jurisdiction over inferior courts and tribunals.  Orders are sought in the nature of certiorari to set aside the impugned direction on the basis of jurisdictional error.  Put shortly, the applicant contends that the learned District Court judge did not have power to make the impugned direction. 
5. [5]
   The Attorney-General, who has intervened in this application, and the second respondent have made submissions in support of the applicant’s contention that the making of the impugned direction involved jurisdictional error.
6. [6]
   The application is opposed by the first respondent on the following bases:

   1. the making of the impugned direction was not affected by jurisdictional error in circumstances where the learned District Court judge did not misconstrue or misunderstand the powers exercisable under the relevant legislative provisions;
   2. the decision to permit access to the PCC material is not one which is susceptible to an application for a statutory order for review; and
   3. in any event, this court would not exercise its discretion to grant the relief the applicant seeks because that relief would unacceptably fragment the criminal proceeding and an alternative process exists for the Court of Appeal to correct error on a point of law in a pre-trial hearing in criminal proceedings.

The relevant legislation

7. [7]
   Part 2, div 2A of the Act, titled “Sexual assault counselling privilege” (SACP provisions), was inserted by the Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld).  The effect of the SACP provisions is to create a statutory claim of privilege by an alleged victim of sexual offending over counselling records.
8. [8]
   The purpose of the SACP provisions, as revealed by the Explanatory Notes for the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 (Qld) (Explanatory Notes),^[3] was described by Applegarth J in TRKJ v Director of Public Prosecution (Qld)^[4] as follows:^[5]

“[15] Part 2, Div 2A follows, but does not reflect in some respects, the New South Wales legislative model that provides an absolute privilege in preliminary proceedings and a qualified privilege in other proceedings.  The legislation ‘seeks to ensure the appropriate balance in each case between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications.’ 

[16] The statutory privilege, either absolute or qualified, seeks to protect the privacy of an individual whose rights are invaded by a sexual assault.  The provisions about privilege ‘seek to recognise the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery and may also encourage them to report the crime to police’.”

9. [9]
   As to the nature of the qualified privilege conferred by the SACP provisions, the Explanatory Notes stated:^[6]

“The ‘qualified privilege’ operates to allow the court to determine, in accordance with defined statutory criteria, whether or not information that contains a protected counselling communication should be accessed.  Allowing the court to determine the issue is considered to strike an appropriate balance between the right of the accused to a fair trial with access to all relevant evidence and material, with the public interest in preserving the confidentiality of counselling communications and minimising harm to victims.  In addition, the court is considered best placed to determine the value of the evidence.”

10. [10]
    The SACP provisions define the meaning of a “protected counselling communication”,^[7] as well as the related concepts of “counsel”, “counselled person” and “counsellor”.^[8]
11. [11]
    The qualified privilege, which relevantly applies to a proceeding for the trial or sentence of an accused,^[9] is created by s 14F in sub-div 3.  That section provides:

“14F Sexual assault counselling privilege

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

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

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

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

12. [12]
    The procedure governing an application for leave to do any of the things proscribed by s 14F is set out in s 14G.  The party applying for leave must give notice in writing to each other party to the proceeding and to the counsellor stating that an application for leave has been made and providing a description of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication) the subject of the application.  In the event that the counselled person to whom the protected counselling communication relates is not a party to the proceeding, the prosecutor is required to give the counselled person a copy of the notice as soon as possible.  The counselled person may appear on the application for leave.^[10]
13. [13]
    The statutory criteria the court must apply in determining whether to grant leave are set out in s 14H, which relevantly provides:

“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.

3. (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.”

14. [14]
    It can be seen that s 14H(1) prescribes three matters about which the court must be satisfied before leave can be granted. 
15. [15]
    The use of the word “will” in s 14H(1)(a), rather than “may”, means that the first condition concerning probative value will not be satisfied by the mere possibility that the communication has the requisite probative value.  Further, the use of the word “substantial” to describe the level of probative value required to satisfy the condition means that it is not sufficient if the communication merely has some probative value.^[11] 
16. [16]
    In TRKJ,^[12] Applegarth J adopted the following statement by Fantin DCJ in R v JML^[13] as to how the question whether evidence has “substantial probative value” can be determined:^[14]

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

17. [17]
    In making the impugned direction, the learned District Court judge also relied on two provisions in sub-div 5 of the SACP provisions. 
18. [18]
    The first, s 14M, sets out the procedure for the court to decide if a document or evidence is a protected counselling communication.  It provides:

“14M Deciding whether document or evidence is protected counselling communication

1. This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.
2. The court may consider a document or evidence to decide whether it is a protected counselling communication.
3. While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—

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

1. the counselled person to whom the document or evidence relates 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.

3. (4)
   The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.

3. (5)
   This section applies despite sections 14D and 14F.”

19. [19]
    This provision sets out a procedure for the court to follow in determining whether material comes within the scope of the privilege where the claim for privilege is challenged.  It expressly recognises that the qualified privilege created by s 14F does not prevent the court from considering the document or evidence in determining that issue.  Further, the court is empowered to make any other order it thinks fit to facilitate its consideration of the document or evidence.
20. [20]
    The second provision referred to by the learned District Court judge is s 14N.  It provides that the court may make “any order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person”.

The course of the application for leave to inspect the PCC material

21. [21]
    On 5 August 2022, the first respondent brought a pre-trial application pursuant to s 590AA of the Criminal Code Act 1899 (Qld) (Criminal Code).  That application sought orders that, among other things:

    1. pursuant to s 14M of the Act, the chief executive of two relevant government departments produce to the registry of the District Court at Brisbane any records relating to or concerning the applicant, without any redactions pursuant to sexual assault counselling privilege;
    2. pursuant to ss 14F and 14G of the Act, the first respondent be given leave to:

1. produce to the court, adduce evidence of or otherwise use a protected counselling communication that may be included in the departmental records; and
2. otherwise disclose, inspect or copy such protected counselling communication that may be included in the departmental records.

22. [22]
    On 13 September 2022, orders were made by a different District Court judge, by consent, which among other things:

    1. granted leave, purportedly pursuant to s 14M of the Act, to the legal representatives for the first respondent to issue subpoenas for the departmental records;
    2. granted leave to the applicant’s legal representatives to inspect, copy and adduce the departmental records produced to the District Court;
    3. restrained the parties, apart from the applicant’s legal representatives, from inspecting, copying, adducing, obtaining or otherwise using any of the departmental records produced to the District Court until further order.  
23. [23]
    As the learned District Court judge hearing the leave application observed,^[15] these orders were irregular as s 14M does not empower the court to grant leave to issue a subpoena for PCC material.
24. [24]
    Nevertheless, departmental records were produced to the court and made available to the applicant’s legal representatives.  Thereafter, the applicant waived privilege in respect of some of the records but maintained the claim for privilege in relation to the rest of the records (identified as MFI-G in the application before the learned District Court judge).  There was no dispute that the records comprising MFI-G were the subject of a valid claim of qualified privilege, being records of a psychologist engaged therapeutically with the applicant.^[16]
25. [25]
    On 3 November 2022, the learned District Court judge adjourned the leave application and made directions for the parties to file submissions addressing the question whether the court should grant access to the PCC material for the limited purpose of enabling submissions to be made on the substantive questions raised by the leave application.
26. [26]
    The parties complied with those directions.  The first respondent submitted that his legal representatives, and the legal representatives for the second respondent, should be permitted to inspect the PCC material in order to provide meaningful submissions about the particular relevance of the PCC material.  Consistently with their position on the present review application, the applicant and the second respondent submitted to the contrary.

The reasoning of the learned District Court judge

27. [27]
    The learned District Court judge acknowledged that s 14F operates to prevent a person from producing PCC material to a court and from otherwise disclosing, inspecting or copying that material, but noted that those prohibitions were subject to leave of the court.  Determining whether leave should be granted requires consideration of the conditions set out in s 14H and it is through the application of those criteria that the balance is to be struck between the right to a fair trial for an accused person and the public interest in preserving the confidentiality of counselling communications and minimising harm to victims of sexual assault.^[17]  His Honour observed that, to achieve the purpose of determining whether it is appropriate to grant leave to use PCC material, and consistently with s 14N, the court may adopt a process which may serve to limit the extent of the harm likely to be caused to the counselled person by the use of PCC material.^[18]
28. [28]
    His Honour then noted that the Act does not prescribe a specific methodology or procedure to be followed by the court when determining whether to grant a party leave in accordance with the constraints imposed by s 14H.^[19]  This is in contrast to the position under s 14M which sets out a procedure for the court to consider material to decide whether it is PCC material which attracts the privilege created by s 14F.  Further, the court is granted the express power to make any order it thinks fit to facilitate its consideration of the material for that purpose.  From there, his Honour reasoned that, absent a procedure being prescribed, it is a matter for the court’s control of its own processes in determining whether to grant leave for use of PCC material.  In support of that position, his Honour relied upon passages from the judgment of Dawson J in Grassby v The Queen^[20] concerning the jurisdiction a court possesses by implication on the basis that a grant of power carries with it everything necessary for its exercise.^[21]  His Honour also considered that the concept of a court’s control of its own processes could be seen as underpinning s 14N, the expectation being that in performing its functions the court would act to limit the likely harm, rather than avoid it completely.^[22]
29. [29]
    On that basis, his Honour reasoned that there was no significant reason to conclude that there would be any greater limitation of the likely harm to the counselled person by intrusion upon the expectation of confidence attaching to PCC material if inspection was to be limited to the court and, perhaps, the legal representatives of the counselled person to the exclusion of the legal representatives of the parties to the criminal proceeding.  Further, his Honour considered that it was not a usual attribute of the judicial process that determination whether leave should be granted be made by “inquisition” of a court.^[23]
30. [30]
    Finally, his Honour observed that, to determine the issue of what, if any, use could be made of the PCC material in a criminal proceeding without the fully informed participation of the parties to that proceeding would not be consonant with the concept of procedural fairness.^[24]
31. [31]
    His Honour’s conclusion was that the processes of the court in ultimately determining what use may be made of PCC material in the criminal proceeding may reasonably require that the parties to that proceeding have access to the PCC material so that the court may be assisted by informed submissions as to the application of the criteria in s 14H in determining that issue.^[25]  That conclusion was said to be supported by the consideration that, in the usual case—though not on the facts of this case—by the time the court is asked to consider the question whether leave should be granted to a party to use PCC material there must necessarily have been an earlier grant of leave to compel production of the PCC material to the court, meaning that a determination had already been made that the s 14H(1) criteria are satisfied, including a sufficient expectation that the material will have substantial probative value and that the public interest in admitting the communication into evidence substantially outweighs the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm.^[26]

The decision in TRKJ

32. [32]
    In TRKJ, Applegarth J dismissed applications to review two decisions by a District Court judge to refuse leave for the accused in criminal proceedings to access PCC material.  TRKJ did not raise the same issues raised by this review application.  Nevertheless, in addressing the issues raised in that application, Applegarth J made several observations about the operation of the SACP provisions which, in my view, bear upon the issues I have to decide.
33. [33]
    In refusing leave to access PCC material, the District Court judge in TRKJ declined to inspect the documents to decide whether the criteria set out in s 14H were satisfied.  The accused in each proceeding argued that, when determining whether to grant leave to access and use PCC material, the court has an implied power to inspect the documents and further that, in refusing to inspect the documents before dismissing the application for leave, the District Court judge fell into jurisdictional error.
34. [34]
    Applegarth J held that the court’s power to hear and determine an application for leave under sub-div 3 of the SACP provisions includes an implied power to inspect and consider PCC material for the purpose of deciding such an application.^[27]  However, his Honour rejected the argument that the court was required to consider the PCC material in determining such an application.^[28]  In the circumstances of the two leave applications considered in TRKJ, Applegarth J found that the decision of the District Court judge not to consider the PCC material was not an error.  In any event, Applegarth J would not have characterised the asserted error as a jurisdictional error.^[29]
35. [35]
    Importantly for the purposes of this review application, Applegarth J made the following observation concerning the implied power for the court to consider the PCC material to determine an application for leave:^[30]

“In my view, such a power is consistent with the subject matter and purpose of the legislation.  The implied power is not excluded by necessary implication. The purpose of the legislation is likely to be served, not undermined, by an implied power to inspect and consider documents for the purpose of deciding an application for leave.”

36. [36]
    Although Applegarth J found that the court had power to inspect the PCC material, his Honour did not consider that the existence of that power meant that it was necessary or appropriate for a judge to exercise it in most cases or as a matter of routine in applications for leave to access PCC material.  That is because a too frequent exercise of the power would undermine a purpose of the provisions which is to restrict access to such material.^[31]
37. [37]
    Applegarth J also held that the court may order the production of documents to itself without granting leave, and therefore without having to be satisfied of the three conditions in s 14H.  The prohibition in s 14F against compelling production to the court applies to “a person”, not to the court itself.^[32]  That finding casts doubt upon the reasoning used by the learned District Court judge in this case to support the existence of an implied power to make the impugned direction (see [31] above).
38. [38]
    The purpose of this interpretation of s 14F was to permit the court to order that the material be produced to the court, but as Applegarth J went on to note:^[33]

“It does not necessarily mean that the Court should then order that the documents be produced to a party or any other person for their use in the absence of a grant of leave under s 14H, at least when that person is not the counselled person.  As to that qualification, the primary purpose of a prohibition like s 14F ‘is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document’.”

39. [39]
    Applegarth J rejected the argument that, in determining an application for leave, the court was required to consider the PCC material, stating:^[34]

“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.

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. 

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.”

40. [40]
    His Honour returned to the same question later in the judgment, stating:^[35]

“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.

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.”

41. [41]
    Although Applegarth J was not required to decide the question whether or not the Court had power to grant access to PCC material in the absence of a grant of leave, the passages I have cited in [38] to [40] above suggest that his Honour approached the questions he was required to consider on the basis that there was no such power.  That is fortified by his Honour’s statement, in comments at the conclusion of the judgment about the workability of the legislation, that “the circumstances under which the legal representatives for a party may be granted leave to access material simply in order to assist the Court deserve urgent attention by the authorities”.^[36]  This issue was addressed in more detail in a later passage:^[37]

“Experienced District Court judges have remarked about the assistance that they require to determine applications for leave.  Inadequate thought seems to have been given when the legislation was drafted as to who might assist the judge to make difficult decisions and the process by which access would be granted to legal representatives to enable them to assist the Court.  These policy issues require consideration of the processes by which a party’s legal representative is to be briefed with material to make submissions and provide assistance to the Court on issues relating to ‘substantial probative value’ and the balancing of public interests.  Without such assistance the Court is left in a difficult position in deciding whether to grant leave under s 14H.

There should be a workable process by which parties who are best placed to assist the Court to decide issues of leave are given access, on suitable terms, to the material that will enable them to assist the Court.  Such a process depends, in part, upon such a party being given the resources required to assist the Court.

Enough experienced judges of the District Court have identified problems associated with the drafting and workability of the provisions to make these matters the subject of urgent attention by government, prosecuting authorities and policy makers.

It is in the interests of persons facing trial on serious charges, counselled persons and others to make the law and practices more workable than they presently are.”

42. [42]
    The legislature amended s 14L after the decision in TRKJ was delivered.  Those amendments made it clear that the counselled person has standing to appear on an application for leave to access and use PCC material.  That appears to have been the result, at least in part, of concerns expressed by Applegarth J in TRKJ that the legislation, as originally drafted, did not confer such standing, leaving that matter in the court’s discretion.^[38]  In contrast, the suggestion by Applegarth J that the legislature might give further consideration to the matters set out in the passages extracted in [41] above did not result in any amendment by the legislature.
43. [43]
    As Applegarth J was not required to decide the question which arises on this review application I am not bound by his Honour’s views.  However, for the reasons I now turn to, I consider the position taken by Applegarth J to be correct.  The court does not have an implied power to permit inspection of PCC material in the absence of a grant of leave.

The nature of a court’s implied powers

44. [44]
    None of the parties opposing the present review application challenge the correctness of the proposition that every court possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything that is necessary for its exercise.^[39] 
45. [45]
    In this context, “necessary” does not mean “essential” but should be understood as identifying a power to make orders which are reasonably required or legally necessary to the accomplishment of what is specifically provided to be done by the statute.^[40]  However, what is “reasonably necessary” cannot be stretched to encompass what is merely desirable or useful.^[41]
46. [46]
    Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred, but will be confined to so much as can be derived by implication from statutory provisions conferring particular jurisdiction.^[42]  That is, no implied power will exist where the terms of the statute leave no room for—or, put another way, afford no basis for—the implication of the ancillary power.^[43]
47. [47]
    In circumstances where the ancillary power arises by implication from the terms of the relevant statute, it is important to note the following observation of a majority of the High Court as to the general approach to implication in the process of statutory construction:^[44]

“The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree.  That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision.  It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.”

48. [48]
    In making that observation, the majority approved the following earlier statement as to the limits of the judicial power to fill gaps in legislation:^[45]

“Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St. Mellons R.D.C. v. Newport Corporation, ‘If a gap is disclosed, the remedy lies in an amending Act’ and not in a ‘usurpation of the legislative function under the thin disguise of interpretation’.”

The test of implication in this case

49. [49]
    The question of implication of an ancillary power involves a process of statutory construction.  As such, it requires that the court consider both the text of the Act as well as its context and purpose.^[46]  Of course, as was noted in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,^[47] the language which has actually been employed in the text of legislation is the surest guide to legislative intention.
50. [50]
    The starting point in determining whether an implied power exists is to identify the precise ambit of the jurisdiction conferred on the court.^[48]  In this case, the jurisdiction is to hear and determine an application for leave to access and use PCC material.  The learned District Court judge reasoned, as set out at [31] above, that the exercise of this jurisdiction may reasonably require that the parties to that proceeding be given access to the PCC material so that the court may be assisted by informed submissions as to the application of the criteria in s 14H.^[49]  In my respectful view, this approach was inconsistent with the text of the relevant statutory provisions.
51. [51]
    Section 14F expressly prohibits a person from, among other things, inspecting PCC material without the leave of the court.  Section 14H then states that the court “can not grant an application for leave under this subdivision” unless it is satisfied of the three matters set out in s 14H(1)(a)–(c). 
52. [52]
    That explicit statutory language means that the application of the test of implication on this review application differs from that undertaken by Applegarth J in TRKJ.  There the argument concerning exclusion of the implied power of the court to consider PCC material for the purpose of deciding a leave application rose no higher than the fact that sub-div 3 of the SACP provisions contained no express power to that effect, unlike s 14M(2).  Applegarth J found that this was not a sufficient basis to conclude that the legislature intended that the power should not exist so as to enable the court, in an appropriate case, to exercise its power to hear and determine an application for leave.^[50]
53. [53]
    On the present review application, the explicit prohibition against a person—including the legal representatives of the parties to the criminal proceeding—inspecting PCC material without leave of the court, and the explicit prohibition against the court granting leave unless it is satisfied of the requisite matters, leaves no room for the implication of a power to permit inspection of PCC material before leave has been granted.  In my view, the text of ss 14F and 14H clearly demonstrate that the legislature intended that the implied power identified by the learned District Court judge in this case should not exist.  That conclusion is fortified by the fact that the legislature did not amend the provisions in response to the observations made by Applegarth J in TRKJ as discussed in [41] and [42] above.  In my view, the implied power identified by the learned District Court judge is excluded by the text of the relevant SACP provisions.
54. [54]
    Further, the implied power would undermine the purpose of the SACP provisions in seeking to protect the privacy of an individual whose rights are invaded by a sexual assault and to recognise the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery and to encourage them to report the crime to police.^[51]  Exercise of the implied power might alter the balance the legislature has struck between competing rights and interests (see [8]-[9] above) by permitting access to PCC material that may have some probative value, but not the “substantial” probative value required under s 14H(1)(a).
55. [55]
    I accept the submissions of the applicant and the Attorney-General that the text of s 14N does not support a different conclusion.  That provision empowers the court to make an order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of PCC material, or the adducing of PCC material as evidence.  It does not, by its terms, empower the court to make orders to limit the extent of harm for the purpose of determining whether leave should be granted to use the PCC material.  In any event, and with due respect to the learned District Court judge, it is difficult to see how an order that the legal representatives for the prosecution and the accused be permitted to access the PCC material prior to the grant of leave can be characterised as one which is appropriate to limit the extent of the harm likely to be caused to the counselled person.
56. [56]
    The justification for implying the power is said to be that submissions from the parties to the criminal proceeding—fully informed as to the contents of the PCC material—are reasonably required for the court to determine the question of what use, if any, should be made of the PCC material in the criminal proceeding.^[52]  In support of this position, the submissions of the first respondent focussed upon the requirement in s 14H(2)(g) that, in balancing the competing public interests identified in s 14H(1)(c), the court must have regard to the extent to which the communication is necessary to enable the accused person to make a full defence.  On the first respondent’s submissions that requirement means that the accused in a criminal proceeding is not to be deprived of any opportunity of forensically challenging the case presented by the prosecution in a way that might legitimately lead to an acquittal.  The first respondent submitted that the only way in which the forensic relevance of PCC material can be meaningfully assessed by the court is upon receiving the assistance of submissions from the parties to the criminal proceeding.  On the first respondent’s submissions, the current practice of the court receiving submissions on the matters raised by s 14H from the legal representatives of the counselled person,^[53] in circumstances where those legal representatives have been granted access to the PCC material and the brief of evidence in the criminal proceeding, is insufficient because the counselled person will not know what the instructions of the accused are in respect of the charges or the manner in which the accused’s case might be presented at trial.
57. [57]
    As to the proposition that determining an application for leave in circumstances where the accused had not been granted access to PCC material would not accord with the rules of procedural fairness, it was common ground in argument before me that these rules may be excluded or modified by legislation, but that the legislative intention to do so must be “unambiguously clear” and be expressed by “plain words of necessary intendment”.^[54]  I am satisfied that, in circumstances where ss 14F and 14H expressly prohibit a person, including the accused, from inspecting PCC material without leave, sub-div 3 of the SACP provisions clearly evinces, by plain words of necessary intendment, the intention to modify the rules of natural justice by requiring that an applicant for leave make submissions on the matters raised by s 14H without the benefit of knowing the contents of PCC material.
58. [58]
    Ultimately, I am unable to accept the first respondent’s submissions or the reasons of the learned District Court judge for implying the power to make the impugned direction.  In KS v Veitch (No 2),^[55] Basten JA (with whom Harrison and Beech-Jones JJ agreed) observed in respect of similar legislative constraints on the production of PCC material,^[56]  the effect of sub-div 3 of the SACP provisions may be to make it more difficult for an accused in a criminal proceeding to defend himself.  However, the qualified privilege does not deprive the accused of a source of information to which he is presumptively entitled, nor does the operation of that privilege to exclude PCC material from being used in a criminal proceeding tend to bring the criminal trial process into disrepute.  Other areas of the law where public interests justify exclusion of information from disclosure in criminal proceedings—such as public interest immunity and legal professional privilege—illustrate the acceptance that the interests of the courts in determining proceedings, including criminal proceedings, on all available evidence must in some circumstances be qualified to protect other public interests. 
59. [59]
    Beech-Jones J observed in Veitch that the apparently high threshold presented by the conditions in the New South Wales equivalent of s 14H may not be as difficult to overcome as first appears if the application for leave to access and use PCC material is supported by evidence identifying the accused’s defence to the charges, what the accused expects will be obtained from the material sought to be inspected and what other documents are or are not available relating to those issues and the material sought.^[57]  In making that observation, Beech-Jones J acknowledged that the decision to disclose such matters cannot be forced on an accused.  Further, his Honour did not suggest that such matters must be deposed to before an application for leave will be granted.  The decision whether to address those matters in evidence on an application for leave to access and use PCC material would present the accused with a difficult forensic choice, but all forms of litigation involve difficult forensic choices.
60. [60]
    To similar effect, in discussing the circumstances in which it might be appropriate for the court to exercise the implied power to inspect PCC material itself in order to determine a leave application, Applegarth J referred in TRKJ to extrinsic material put in evidence on the leave application and what conclusions might be drawn on the matters raised by s 14H having regard to that extrinsic material.^[58] 
61. [61]
    The ability of an accused to put on extrinsic evidence and make submissions on the matters raised by s 14H is contrary to the proposition that it is reasonably necessary for the court to provide the parties to the criminal proceeding with access to PCC material, for the purpose of making submissions on the matters to be determined on an application for leave, prior to leave being granted.  I cannot see anything in the judgments of Veitch or TRKJ supporting that proposition.  Nor do those authorities support the suggestion by the learned District Court judge that determining an application for leave without what his Honour described as “the fully informed participation”^[59] of the parties to the criminal proceeding would involve an inquisition by the court.
62. [62]
    In reaching this conclusion, I am conscious of the concerns which District Court judges have raised about the practical operation of the SACP provisions.  My decision should not be understood as discounting or diminishing those concerns.
63. [63]
    This court’s function on the present review application is to determine whether the implied power identified by the learned District Court judge exists in a court hearing an application for leave under sub-div 3 of the SACP provisions.  For the reasons set out above, I have concluded as a matter of statutory construction that this implied power does not exist.  It may be desirable or useful for a court hearing the leave application to receive submissions from the parties to the criminal proceeding which are informed by knowledge of the contents of the PCC material, but that is not a sufficient basis to imply such a power.  In the end, I respectfully adopt the statement by Basten JA in Veitch,^[60] that the protection of PCC material involves a balance of policies which has been determined in a particular way by the legislature and in which the court should not interfere.
64. [64]
    The result is that, consistently with the suggestion made by Applegarth J in TRKJ and with the statements of general principle derived from the authorities discussed in [44] to [48] above, the circumstances in which legal representatives for a party to the criminal proceeding may be granted leave to access PCC material for the purpose of assisting the court to determine the matters raised by s 14H is something which, if it is to occur, must be addressed by the legislature.  The first respondent submitted that it was regrettable that there wasn’t a greater degree of legislative intervention to improve the practical operation of the SACP provisions after the decision in TRKJ.  That submission may be accepted, however it does not alter the limits on the power of the court to permit inspection of PCC material.

Consideration of the Human Rights Act 2019 (Qld)

65. [65]
    The learned District Court judge considered the potential application of the Human Rights Act 2019 (Qld) (HR Act) but accepted the parties’ submission that its operation was excluded because the criminal proceeding in which the application for leave was brought commenced before the commencement of the HR Act.^[61]
66. [66]
    In any event, I accept the submission on behalf of the Attorney-General that, for reasons given by Applegarth J in TRKJ,^[62] if the HR Act had applied then, recognising that the SACP provisions balance competing human rights, a requirement that those provisions be interpreted in a way that is compatible with human rights would not have altered the construction identified above.  None of the other parties made submissions on the application of the HR Act.

This court’s jurisdiction to make an order in the nature of certiorari

67. [67]
    By s 41 of the Judicial Review Act 1991 (Qld) (JR Act) this court may not issue a prerogative writ of certiorari but may make an order in the nature of that writ that has the same effect.  Prior to the enactment of the JR Act, this court could issue a writ of certiorari directed to the District Court in the exercise of its inherent jurisdiction.  It also has power under s 29 of the District Court Act 1967 (Qld) (DC Act) to grant such relief where, on the application of an interested person, the court thinks it desirable to do so.
68. [68]
    Although s 28 of the DC Act provides that a judgment of a District Court judge shall not be removed by writ of certiorari into another court save and except in the manner and according to the provisions of the DC Act, such provision does not prevent this court from making an order in the nature of certiorari to quash an order of the District Court if the ground of judicial review for such an order amounts to jurisdictional error.^[63]
69. [69]
    The content of this court’s inherent jurisdiction to make an order in the nature of certiorari corresponds with the court’s previous jurisdiction to order the issue of a prerogative writ of certiorari.  Where available, certiorari is a process by which a superior court supervises the acts of an inferior court.  It enables the quashing of the impugned order on a number of grounds including, for present purposes, jurisdictional error.^[64]
70. [70]
    Whether an error of law by an inferior court is jurisdictional will depend on the proper construction of the statute which confers jurisdiction.^[65]  Where the statute is expressed in terms that a court take a specified matter into account before making an order the question of construction is whether the statute makes the taking of the matter into account a condition of the authority which the statute confers on the court to make an order of that kind.^[66]
71. [71]
    An inferior court falls into jurisdictional error if it misapprehends the nature or limits of its functions or power in a case where it correctly recognises that jurisdiction exists.  This may occur where an inferior court—while acting wholly within the general area of its jurisdiction—does something which it lacks authority to do, including where the inferior court misconstrues the statute conferring jurisdiction and thereby misconceives the extent of its powers in the circumstances of the particular case.^[67]
72. [72]
    On the construction of sub-div 3 of the SACP provisions set out above, s 14H makes satisfaction as to the matters prescribed in s 14H(1)(a)–(c), on the part of the court hearing an application for leave, a condition of the authority which the Act confers on the court to grant leave to inspect PCC material.  In those circumstances, and where I have found that a court hearing an application for leave under sub-div 3 does not have an implied power to permit inspection of PCC material before granting leave, the learned District Court judge was required to have considered and been satisfied of the relevant matters before the court had any power to permit inspection of the PCC material.
73. [73]
    In this case, by the impugned direction, the learned District Court judge permitted the parties to the criminal proceeding to inspect the PCC material in order to provide submissions on the matters raised by s 14H.  It must follow that the impugned direction was made before the learned District Court judge had been satisfied of the relevant matters.  Accordingly, the court did not have power to make the impugned direction.
74. [74]
    For these reasons, in making the impugned direction, the learned District Court judge fell into jurisdictional error.  His Honour misapprehended the limits of the courts’ power to permit inspection of the PCC material, misconstrued the statutory provisions and, in consequence, made the impugned direction where the court lacked authority to do so.
75. [75]
    I am therefore satisfied that this court has jurisdiction to make an order in the nature of certiorari to quash the impugned direction.

Discretionary considerations

76. [76]
    This court may dismiss an application for relief in the form of an order in the nature of certiorari if it considers that it would be inappropriate to grant the application.^[68]
77. [77]
    The first respondent pointed to two discretionary considerations which, on his submissions, make it inappropriate to grant the application.
78. [78]
    First, relying on the High Court decision in Sankey v Whitlam,^[69] he submitted that the making of an order in the nature of certiorari in the present circumstances would unacceptably fragment the criminal proceeding. 
79. [79]
    Sankey concerned an application for declarations that documents subpoenaed in a committal proceeding, and found by the magistrate to be subject to a valid claim of privilege for public interest immunity, should be produced and could be used if otherwise admissible in the committal proceeding.  In that context Gibbs ACJ stated that, in a case in which a declaration is sought on a question of evidence or procedure, there must be exceptional circumstances to warrant the grant of relief.  That is because of the effect of the application for directions in delaying and fragmenting the criminal proceeding and, thereby, detracting from the efficiency of the criminal process.^[70]
80. [80]
    I accept that it is undesirable for this court’s review jurisdiction to be used in a way which delays and fragments the criminal process and that, for these reasons, courts are reluctant in the exercise of the supervisory jurisdiction to interfere in the administration of the criminal law.^[71]  However, having regard to the circumstances of this case, I take the view that the prospect of delay and fragmentation of the criminal process does not make it inappropriate to grant relief in circumstances where the impugned direction was made without authority and the making of that direction would have the effect of undermining the purpose of the SACP provisions (see [54] above).
81. [81]
    The second discretionary matter raised by the first respondent is the availability of an alternative process for correcting the error of law.  Again, I accept that the existence of a right of appeal or other means by which the error could be corrected would ordinarily be a strong discretionary reason not to make an order in the nature of certiorari even where the grounds to grant such relief had been established.^[72]
82. [82]
    In this case, the first respondent’s application for leave to access and use the PCC material, and the impugned direction made in the course of dealing with that application, were made under s 590AA(2)(ka) of the Criminal Code.  Consequently, by s 590AA(4) of the Criminal Code, the impugned direction must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.  The applicant has no right to appeal the making of the impugned direction.
83. [83]
    The first respondent relied instead upon s 668A of the Criminal Code, which provides that a Crown Law Officer may refer a point of law that has arisen in relation to a direction or ruling under s 590AA to the Court of Appeal.  The first respondent submitted that, although s 668A does not permit a counselled person to initiate a referral, the interests of the counselled person would be taken into account by the relevant Crown Law Officer in deciding whether or not to refer a pre-trial ruling to the Court of Appeal.  This, he submitted, meant adequate provision has been made to correct the error.
84. [84]
    I am unable to accept that submission.  The JR Act expressly provides that the court may, and in certain cases must, dismiss an application for a prerogative order because provision is made by another law under which the applicant for review is entitled to seek a review of the matter.^[73]  Although those provisions are expressed not to limit the power in s 48(1)(a) to dismiss an application for review if the court considers it would be inappropriate to grant the application, they indicate that where consideration is to be given to alternative means of correcting the error the focus should be upon the applicant’s entitlement to pursue other rights of review.  In the present case, other than the present review application, there is no step which the applicant may take to challenge the making of the impugned direction.  I do not consider that the second respondent’s ability to act under s 668A makes it inappropriate to grant relief to the applicant in the circumstances of this case.

Conclusion

85. [85]
    The orders I will make are:

1. An order in the nature of certiorari is made quashing the direction made by the District Court on 14 April 2023.
2. The matter is remitted to the District Court for further consideration.