TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors

This judgment provides an important and detailed consideration of the powers of the Court to inspect “protected counselling communications” under Div 2A Evidence Act 1977. The decision arises in the context of applications for orders in the nature of certiorari. In two separate applications, the respective applicants sought leave under s 14H Evidence Act 1977 to subpoena, produce, inspect, copy and use protected counselling communications. In both applications, the District Court judge did not inspect the material before dismissing the application. The applicants submitted that this amounted to a jurisdictional error. Ultimately, Applegarth J held that the respective judges’ refusal to inspect the material did not amount to a jurisdictional error. While s 14H of the Evidence Act 1977 contains an implied power for the court to consider the documents at the leave stage, this power does not require the court to do so. It is a matter of discretion. This note is largely confined to a consideration of the specific proceedings before the Court and does not canvass his Honour’s detailed consideration of Division 2A of the Evidence Act 1977.

Applegarth J

16 November 2021

Background

This matter concerns two applications for leave, made in separate proceedings, under Subdivision 3 of Div 2A Evidence Act 1977 (“the Act”), to compel, adduce or otherwise disclose “protected counselling communications” (“PCC”). Both applications were dismissed by the respective District Court judges. [1].

Each applicant seeks orders in the nature of certiorari to quash the decision to dismiss the decision of the District Court and to remit the matter for reconsideration according to law. [3].

The key issue before the Supreme Court was whether the respective District Court judges fell into error by not inspecting the material before determining whether to grant leave.

The relevant legislation

Division 2A of Pt 2 of the Act is headed “Sexual assault counselling privilege”. The privilege “seeks to protect the privacy of an individual whose rights are invaded by a sexual assault”. [16].

In some proceedings, such as a committal proceeding or bail, the privilege is absolute (ss 14C and 14D). For a trial or sentence, Subdivision 3 creates a qualified privilege. The privilege is qualified in the sense that compelling production, producing or otherwise disclosing the PCCs requires leave of the court (s 14F). [19].

Section 14H(1) requires that the court be satisfied of three preconditions in order for leave to be granted. They are that:

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

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

(c) the public interest in admitting the communication into evidence substantially outweighs the public interest in—

(i) preserving the confidentiality of the communication; and

(ii) protecting the counselled person from harm.” (Emphasis added in the judgment)

In his reasons, Applegarth J explains that the word “will” in s 14H(1)(a) signifies that what is required is more than “the mere possibility that the protected counselling communication has a ‘substantive probative value’”. Further, the word “substantial” in s 14H(1)(a) makes clear that the communication must have more than “some probative value”. [23].

Decision of Applegarth J

The decision of Applegarth J is comprehensive. His Honour considers:

• current practices by Judges in the District Court;
• the role that should be taken by the counselled person, the prosecutor and the legal representative for the counselled person in assisting the court in respect of applications for leave;
• the “staged process” that the Court may be required to undertake;
• whether s 14H, and the other provisions of Subdivision 3, contain an implied power for the court to consider the documents at the leave stage;
• the nature of that implied power;
• whether the court can order that the documents be produced to it for the purpose of an application for leave under subdivision 3;
• the Human Rights Act 2019; and
• the workability of the legislation.

It is not possible for the purposes of this note to consider each of these issues in detail. Relevantly, by way of very brief summary, His Honour held that:

• the Act does not expressly state that the court must inspect the PCC in deciding whether to grant leave under s 14H; [70];
• the Act is “silent” as to any such consideration; [142];
• s 14H does not even provide that the court “may consider” the communication (c.f. s 14M); [70], [74];
• the Act contains an implied power for the court to consider the documents at the leave stage; [103]; and
• despite their being an implied power to inspect the documents, the court is not required to do so. [104]. (See generally at [142]).

Further, Applegarth J made clear that the decision to inspect the documents is a “discretionary decision” that is made before the judge determines the “ultimate question of whether leave should be granted”. [138].

This note otherwise deals only with the decisions under review.

Decision under review in proceeding 3760 of 2021

The applicant alleged that the decision of the District Court judge to not inspect the material in determining the issues in s 14H was a jurisdictional error. [133].

Justice Applegarth held that:

• the District Court judge did not mistakenly hold that he lacked power to peruse the documents; [136]–[138];
• the Act did not require that the judge peruse the documents; [139]–[148]; and
• no error was made with respect to the counselled person’s standing. His Honour was correct to find that the counselled person’s standing under s 14L is limited to the issue of whether a document or evidence is PCC. [149].

Justice Applegarth explained that the District Court judge considered the terms and purpose of the Act and held that it “does not suggest an approach that would have the court routinely inspect PCC…” (Emphasis added) [126]. Further, the judge’s decision “was to the effect that there was no legislative requirement to consider the documents”. [134]. While the judge had the power to do so, the judge concluded that in the circumstances of this case, it was “not appropriate” to review the documents. [135].

The applicant failed to establish jurisdictional error. His Honour dismissed the appeal. [154].

Decision under review in proceeding 5632 of 2021

As with the proceeding above, in determining the application for leave to subpoena, produce, inspect, copy and use PCC, the judge refused to peruse the material. [156]–[157].

The District Court judge held that it would be “generally insufficient” for a defendant to:

(a) say they were not guilty;

(b) identify that the credit of the counselled person will be in issue at trial; and

(c) “leave it to a Court to examine documents to decide whether or not to grant leave”. [158].

On this basis, the judge held that it was not appropriate to consider the documents. His Honour then considered and dismissed the application for leave. [158].

Justice Applegarth held that the District Court judge’s approach was correct. [158]. Therefore, for the same reasons as the proceeding above, the applicant failed to establish jurisdictional error. The application was dismissed. [160].

The workability of the legislation

It is also important to note that Applegarth J “identified problems associated with the drafting and workability of the provisions of the Act” and made clear that the provisions should be the “subject of urgent attention by government, prosecuting authorities and policy makers”. [204] (see also at [69]).

A Hughes of Counsel