MH v HJ & Ors

The applicant in this matter, the complainant in respect of alleged offending, sought orders in the nature of certiorari to set aside a pre-trial direction which had been made in the District Court enabling counsel for the first respondent (the defendant) and the prosecution to access protected counselling communications concerning the applicant. Justice Cooper held that in making the direction, the learned District Court judge had fallen into jurisdictional error; misapprehended the limits of the courts’ power to permit inspection of the protected counselling communications material; misconstrued the statutory provisions and, in consequence, the court lacked authority to make the impugned direction.

Cooper J

18 August 2023

The first respondent had been charged with several counts of indecent treatment of a child under 12, under care, and several counts of rape. [1]. He obtained permission to inspect “protected counselling communications” (PCC material) relating to the applicant to ascertain whether they could be used in the criminal proceedings. [3]. The applicant, supported by the Attorney-General as intervenor, argued that the direction should be set aside on the basis of jurisdictional error. [5].

The applicable legislation

Part 2, Div 2A Evidence Act 1977 creates a qualified statutory claim of privilege by an alleged victim of sexual offending over counselling records. Its purpose is to “protect the privacy of an individual whose rights are invaded by a sexual assault” (see Applegarth J in TRKJ v Director of Public Prosecution (Qld) (2021) 9 QR 472 [16]) and to enable the court in determining whether sensitive information should be accessed (see Explanatory Notes for Victims of Crime Assistance and Other Legislation Amendment Bill 2016, p18).

The qualified privilege is contained in s 14F. It 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—

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

(b)produce to a court, adduce evidence of or otherwise use, a protected counselling communication;

(c)otherwise disclose, inspect or copy a protected counselling communication.”

The statutory criteria governing the granting of leave are contained in s 14H. [13].

The reasoning of the judge who granted access to the records containing the PCC material

In making the direction, his Honour observed as follows:

(1)The Act does not prescribe a clear methodology or procedure to be followed by the court in determining whether to grant leave pursuant to s 14H;

(2)The court has express power to make any order it deems appropriate to assist its consideration of the relevant material;

(3)It is a matter for the court’s control of its own processes in determining whether to grant leave for the use of PCC material (see Grassby v The Queen (1989) 168 CLR 1, 16-7);

(4)There was no compelling suggestion which would lead to an inference that any greater limitation of the likely harm to the counselled person would result by intrusion upon the expectation of confidence attaching to PCC material in the event 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 [29];

(5)Ultimately, the processes of the court in deciding what use may be made of PCC material may reasonably require that the parties have access to the material in order that the court may be assisted by informed submissions as to the application of the criteria in s 14H in determining that issue. [31].

Observations made by Justice Applegarth in TRKJ v Director of Public Prosecutions (2021) 9 QR 472

In considering the soundness of the direction made, his Honour extensively considered the decision of TRKJ v Director of Public Prosecutions (2021) 9 QR 472. In that matter, Applegarth J made several pertinent observations relating to the operation of the applicable sections of Evidence Act 1977. His Honour held that: the court’s power to hear and determine an application for leave comprises an implied power to inspect and consider protected counselling communication material in order to decide an application [34; such a power is consistent with the subject matter and purpose of the legislation and is not excluded by necessary implication [35]; and, the prohibition in s 14F against “compelling production to the court applies to ‘a person’ not to the court itself”. That finding brought into question the reasoning of the District Court judge in the current matter to endorse the existence of an implied power to make the impugned direction. [37].

Importantly, although Applegarth J was not required to determine whether the Court had power to grant access to PCC material in the absence of a grant of leave, the dicta made it plain that his preferred position was that a court lacks the power to grant access to protected counselling communication material without an accompanying grant of leave. [41].

Consideration

Justice Cooper agreed with Applegarth J’s position that the court does not possess an implied power to permit inspection of protected counselling communication material without a grant of leave. [43]. His Honour explained:

(1)Whilst it is correct 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” “no implied power will exist where the terms of the statute… afford no basis for – the implication of the ancillary power. [46].

(2)In this case, the explicit prohibition in ss 14F and 14H, against a person – including legal representatives – from inspecting PCC material without the court’s leave, and against the court granting leave unless it could be satisfied of the requisite matters, plainly indicated that it was not the intention of the legislature that the implied power identified by the District Court judge should exist. [53].

(3)The implied power would have the undesirable consequence of lessening the effectiveness of the purpose of the provisions, which is to safeguard the privacy of those whose rights are invaded by a sexual assault and to recognise the utility in encouraging such individuals to seek therapy and report the crime. [54].

(4)The wording of s 14N does not compel an alternative conclusion. It is difficult to conceive how an order allowing legal representatives to access 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. [55].

(5)The proposition that determining an application for leave to access PCC material in circumstances where the accused had not first been afforded access to the PCC material would not accord with the rules of procedural fairness was without merit. Whilst the rules of procedural fairness may be excluded or modified by legislation, the legislative intention to do so must be “unambiguously clear” and be expressed by “plain words of necessary intendment”. Sections 14F and 14H expressly prohibit a person, including the accused, from inspecting the material without leave, and Pt 2, Div 2A, Sub-Div 3 clearly conveys 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 the material. [57].

(6)Maintaining the protection of PCC material is a matter in which the court should not readily interfere. [63].

(7)If legal representatives for a party to the criminal proceeding were to be granted leave to access protected counselling communications material for the purpose of assisting the court to determine the matters raised by s 14H, that is a matter which would need to be addressed by the legislature. [64].

(8)Any potential application of the Human Rights Act 2019 would not compel a different result. [65]–[66].

In his Honour’s view, in making the impugned direction, the learned District Court judge had fallen into jurisdictional error. [72]. The Supreme Court had jurisdiction to make an order in the nature of certiorari to quash the impugned direction. [71]–[75].

Discretionary considerations

Section 48(1)(a) Judicial Review Act 1991 states that the Supreme 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. Whilst considerations of the prospect of delay and fragmentation of the criminal process were of course relevant to the application for relief, [80], his Honour did not accept that those matters would render it inappropriate, in the present instance, to grant the relief. His Honour also rejected the submission that the Crown’s ability to act under s 668A Criminal Code 1899 meant adequate provision had been made to correct the error. [81]–[84].

Disposition

An order in the nature of certiorari was made quashing the direction made by the District Court. The matter was remitted to the District Court for further consideration.

A Jarro