SWN v CJA & Ors

The applicant was the complainant in criminal proceedings involving sexual offences. She had disclosed the alleged offending to a counsellor, and the accused applied for leave to subpoena the counsellor’s records. Leave was granted by the primary judge. The applicant later applied to the Supreme Court for orders in the nature of certiorari quashing the original grants of leave, arguing that such grants amounted to jurisdictional error because the primary judge could not have been satisfied of the material’s substantial probative value without having first considered it. Justice Crowley disagreed, and held that the terms of s 14H(1) Evidence Act 1977 did not require a court to ascertain the contents of the material as a prerequisite to determining whether it held substantial probative value. His Honour held that no jurisdictional error was established and dismissed the application.

Crowley J

2 September 2025

Background

The applicant was the complainant in criminal proceedings against the first respondent in the District Court. The first respondent applied under s 14G Evidence Act 1977 (“the Act”) to issue a subpoena to a counsellor the applicant previously visited to produce protected counselling communications (“PCCs”). [1], [2], [4].

The judge who heard the application, Judge Long SC, granted leave for the issue of the subpoena. Subsequently, the applicant made an oral application to vacate the orders so that the Court could consider the contents of the subpoenaed documents before determining whether leave should be granted in respect of their use. Judge Long SC refused the application. [9]–[11].

The applicant then applied to the Supreme Court for an order in the nature of certiorari quashing the previous orders and related alternative orders. The applicant argued that the previous orders were affected by jurisdictional error because Judge Long SC misconstrued s 14H of the Act. The applicant contended that this was because satisfaction of the matters in ss 14H(1)(a) and (c) are prerequisites for the exercise of the court’s jurisdiction to grant leave for issuing a subpoena, and the Court could not have been satisfied of those matters with respect to the PCCs without first ascertaining the content of and considering the PCCs. [12]–[14], [74].

Section 14F of the Act provides that evidence of PCCs could generally not be produced before a court unless the court granted leave to do so. Section 14G gives the court power to grant such leave. Section 14H provides that the court cannot grant leave unless the court is satisfied that, relevantly:

(1)the PCC the subject of the application will, “by itself or having regard to other documents or evidence produced by the applicant”, have substantial probative value (s 14H(1)(a)); and

(2)the public interest in admitting the communication into evidence substantially outweighs the public interest in preserving the confidentiality of the PCC and protecting the counselled person from harm (s 14H(1)(c)).

Is the court required to ascertain the contents of the PCCs before it can issue a subpoena for PCCs?

Justice Crowley considered that s 14H(1)(a) does not require the court to consider the actual contents of the subject PCCs before it may be satisfied the PCCs will have substantial probative value. His Honour regarded that the conjunction “or” used in that subsection indicates that the court may make the necessary assessment “having regard to other documents or evidence” and in such instances, the court may be satisfied that the PCCs will have substantial probative value based on reasonable inferences or conclusions that may be drawn from other circumstances or material. [98].

His Honour also agreed with the analysis of Cash DCJ in R v TRKJ (No 2) [2023] QDC 231, [27] that the “substantial probative value” 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 such that it is necessary for the judge to be persuaded that it has real worth or value sufficient to make it substantially probative. [109]–[110].

His Honour also considered that the use of the words “will … have” in s 14H(1)(a) refers to a future eventuality, occurrence, or effect. However, his Honour held that in context, the combined phrase “will … have substantial probative value” requires the court to be positively satisfied of the prospective future capacity of the PCC to have substantial probative value. His Honour also held that this phrase does not require the court to consider the actual content of the PCCs as the court may be satisfied of the s 14H(1)(a) criterion by drawing inferences from other available material. [117], [119].

His Honour also applied this reasoning to dismiss the applicant’s argument that in the context of s 14H(2A), which places the onus on the applicant to satisfy the court of substantial probative value, an applicant would rarely succeed in doing so in the absence of the court being required to inspect the documents. Further to that reasoning, his Honour considered that the use of the word “may” in s 14H(2A) in relation to the court being able to consider the PCCs prior to deciding an application indicated that the court has a discretion to consider the PCCs but that it is not mandatory to do so in every case. [124]–[126].

Were the orders granting leave to issue the subpoena affected by jurisdictional error?

Justice Crowley rejected the applicant’s argument that a court cannot rationally have been satisfied that the documents containing PCCs would have substantial probative value without first considering them. That was because his Honour considered that the applicant’s argument erroneously proceeded on the basis that the phrase “will … have substantial probative value” required the court to have certainty as to the contents of the document the subject of the application. As discussed above, his Honour considered that this is not required on the proper construction of s 14H(1)(a). [135]–[136].

In his Honour’s view, in the present case the court was not required to be satisfied that each individual document containing a PCC will have substantial probative value. Here, the nature of the case and the material provided to the judge to determine the leave application revealed a logical basis for the court to be satisfied that the counselling records would contain PCCs that had substantial probative value. His Honour considered that the original judge’s approach involved no impermissible speculation about the contents of the documents, and that there was no difficulty with the judge’s conclusion that the substantial probative value of the documents is that they would show the circumstances in which the applicant’s complaint emerged. [137]–[138].

In those circumstances, his Honour held that the approach taken by the original judge was permitted by the legislation and the judge could rationally be satisfied of the criteria in s 14H(1) on the state of the material before him and without considering the actual content of the counsellor’s records. Accordingly, his Honour held that no jurisdictional error was established. [142]–[143].

Disposition

The application was dismissed with each party bearing their own costs. [144].

A Lukacs