R v MFJ - [2021] QChC 34

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v MFJ [2021] QChC 34

PARTIES:

THE QUEEN

(respondent)

v

MFJ
(applicant)

FILE NO:

396/20

DIVISION:

Criminal

PROCEEDING:

Applications for leave pursuant to s 14G of the Evidence Act 1977 (Qld)

ORIGINATING COURT:

Children’s Court at Brisbane

DELIVERED ON:

9 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2021

JUDGE:

Judge Clare SC

ORDER:

1.          The application for the production of the records of Child Psych and Umbrella Lane Psychology is dismissed.

2.          The application for leave to access the records of Child Psych and Umbrella Lane Psychology is dismissed.

3. Pursuant to s 14M of the Evidence Act 1977 (Qld) the Department of Education is to produce its records for the period from 1 June 2019 to the present relating to the complainant (named in count 3 of the indictment number 396/20).

i) those records are to be kept in an envelope and not to be accessed by anyone other than the representatives of the complainant pursuant to s 14M(4) pending a determination of what is PCC.

             ii)      the representatives of the complainant may access and copy the records for the purpose of making submissions on what portions are PCC.

            iii)      the hearing of the defence application for leave to access PCC in those records is adjourned.

4.          The application in respect of the Department of Education records is adjourned to a date to be fixed.

CATCHWORDS:

CRIMINAL LAW – SEXUAL ASSAULT – SUBPOENAED MATERIAL – APPLICATION FOR ACCESS TO MATERIAL – PRIVILEGED COUNSELLING COMMUNICATION – where the applicant seeks leave to subpoena the complainant’s psychological records – where the applicant wishes to subpoena the complainant’s school records – when records may be produced without leave – when court may order production of documents without giving leave – standing of the counselled person.

LEGISLATION:

Criminal Code Act 1899 (Qld) s 590

Criminal Practice Rules 1999 (Qld) r 30

Criminal Procedure Act 1986 (NSW) s 299D

Director of Public Prosecutions Act 1984 (Qld)

Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32

Evidence Act 1977 (Qld) ss 14A, 14B,14F, 14G, 14H, 14L, 14M, 14N

CASES:
Bromley v The Queen (1986) 161 CLR 315

Farrell v The Queen (1998) 194 CLR 286

KS v Veitch (No 2) (2012) NSWLR 172

R v Demos [2012] QCA 165

R v JML [2019] QDCPR 23

R v Rohan [2018] NSWCA 89

COUNSEL:

Ms E Kelly for the Crown

Ms C Lovel for the applicant

SOLICITORS:
Office of the Director of Public Prosecutions for the Crown
Legal Aid Queensland for the applicant

Introduction

The applicant is charged with rape and other charges. An application was made with the co-accused for access to the records relating to the complainant held by the complainant’s general practitioner, Dr Young, as well as those held by psychology practices, Umbrella Lane Psychology and Child Psych, along with records of the Education Department. The co-accused subsequently pleaded guilty to the indictment.
Subdivision 3 of Subdivision 2A of the Evidence Act 1977 (Qld) (‘the Act’) creates…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MFJ

Details

AGLC: R v MFJ [2021] QChC 34
Case: [2021] QChC 34
Decision Date: 9 September 2021

CaseChat Overview and Summary

The case of R v MFJ involved a criminal matter concerning sexual assault where the applicant sought leave to subpoena the complainant's psychological records from Child Psych and Umbrella Lane Psychology, as well as her school records from the Department of Education. The legal issues before the court were whether the applicant could subpoena the complainant's psychological records, whether the applicant could subpoena the complainant's school records, and under what circumstances the court could order the production of documents without giving leave.

The court determined that the ambit of “protected counselling communication” (PCC) is very wide, encompassing any confidential communication between a counsellor and a counselled person, or a communication between a parent or support person and a counsellor. Given that the complainant had engaged with counselling services and was thus a counselled person, it was concluded that almost the whole of her file would be PCC. Therefore, the court held that the applicant could not subpoena the complainant's psychological records without satisfying the requirements for leave under section 14H of the Evidence Act 1977 (Qld). The court dismissed the application for the production of the psychological records and the application for leave to access them. In contrast, the court found that the school records from the Department of Education could be produced without leave, subject to certain conditions to protect the complainant's confidentiality.

The final orders of the court were that the application for the production of the records from Child Psych and Umbrella Lane Psychology, and the application for leave to access those records, were dismissed. The Department of Education was directed to produce its records for the period from 1 June 2019 to the present relating to the complainant, subject to the condition that these records would be kept in an envelope and accessed only by the representatives of the complainant for the purpose of identifying PCC. The hearing of the defence application for leave to access PCC in those records was adjourned, as was the application in respect of the Department of Education records.

Orders

Orders of the court

1. The application for the production of the records of Child Psych and Umbrella Lane Psychology is dismissed.

2. The application for leave to access the records of Child Psych and Umbrella Lane Psychology is dismissed.

3. Pursuant to s 14M of the Evidence Act 1977 (Qld) the Department of Education is to produce its records for the period from 1 June 2019 to the present relating to the complainant (named in count 3 of the indictment number 396/20).

i) those records are to be kept in an envelope and not to be accessed by anyone other than the representatives of the complainant pursuant to s 14M(4) pending a determination of what is PCC.

ii) the representatives of the complainant may access and copy the records for the purpose of making submissions on what portions are PCC.

iii) the hearing of the defence application for leave to access PCC in those records is adjourned.

4. The application in respect of the Department of Education records is adjourned to a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In contrast, the provision subsequently enacted in Queensland qualifies the use that could be made of the document, by the addition of subsection (2).S14M Deciding whether document or evidence is PCC(1) This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 (committal proceedings) or 3 (general) applies.(2) The court may consider a document or evidence to decide whether it is a PCC… Subdivision 5 does provide for ancillary orders, but they are narrow in scope. The court’s power to make others orders in s 14M(4) to “facilitate its consideration” of the document is again tied to consideration of the threshold issue, because the actual authority to consider the document is that conferred by s 14M(2). Facilitative orders might include an order to produce a document or to grant access to it for the purpose of making submissions about whether the communication was PCC, but they could not extend to ordering the production of known PCC. Similarly, s 14N permits ancillary orders, but s 14N would not authorise the production or consideration of PCC. It is fixed at limiting the harm to be caused to the counselled person when PCC is produced. As for the procedures under Subdivision 3, there are requirements for notice to the counselled person, but no equivalent to s 14L to extend standing for the substantive matters in subdivision 3. Instead of a statutory right to appear, the counselled person may offer a statement of harm under s 14H(3). Furthermore, there is the absence of any provision for consideration of the document when determining whether leave may be given. For those reasons, I have concluded that where the material sought is known to be PCC, the court has no power to order its production without being satisfied of all of the requirements for leave in s 14H. The ambit of “protected counselling communication” is very wide. By virtue of s 14A it includes any communication in confidence between counsellor and counselled person, or a confidential communication by a parent or support person present to facilitate communication with the counsellor or further the counselling process. Pursuant to the definitions in s 14B, a “counselled person” is an alleged victim of an alleged sexual assault who has been counselled by a counsellor (at any time); a “counsellor” includes a person who has trained or has experience in counselling and in the course of his or employment, counsels another person; “counsel” means to listen to, and give support, help or encouragement to another, or to advise or give therapy to the person. Applying those definitions, those providing counselling services in the psychology practices of Umbrella Lane and Child Psych would be “counsellors” and any one of their clients who was an alleged sexual assault victim at any time, would be a “counselled person.”. It follows, the complainant who had engaged with those counselling services, was a counselled person. Confidentiality is an important part of such services. The ambit of PCC extends beyond the session notes to communication in furtherance of the process. There is no reason to infer an absence of confidentiality in any communications between the complainant and her counsellors, or in any communications between her parent or carer and the counsellor to assist the counselling process. It follows that almost the whole of the file, and certainly the contents of substance, would be PCC.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MFJ [2021] QChC 34
PARTIES:	THE QUEEN (respondent) v MFJ (applicant)
FILE NO:	396/20
DIVISION:	Criminal
PROCEEDING:	Applications for leave pursuant to s 14G of the Evidence Act 1977 (Qld)
ORIGINATING COURT:	Children’s Court at Brisbane
DELIVERED ON:	9 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2021
JUDGE:	Judge Clare SC
ORDER:	1. The application for the production of the records of Child Psych and Umbrella Lane Psychology is dismissed. 2. The application for leave to access the records of Child Psych and Umbrella Lane Psychology is dismissed. 3. Pursuant to s 14M of the Evidence Act 1977 (Qld) the Department of Education is to produce its records for the period from 1 June 2019 to the present relating to the complainant (named in count 3 of the indictment number 396/20). i) those records are to be kept in an envelope and not to be accessed by anyone other than the representatives of the complainant pursuant to s 14M(4) pending a determination of what is PCC. ii) the representatives of the complainant may access and copy the records for the purpose of making submissions on what portions are PCC. iii) the hearing of the defence application for leave to access PCC in those records is adjourned. 4. The application in respect of the Department of Education records is adjourned to a date to be fixed.
CATCHWORDS:	CRIMINAL LAW – SEXUAL ASSAULT – SUBPOENAED MATERIAL – APPLICATION FOR ACCESS TO MATERIAL – PRIVILEGED COUNSELLING COMMUNICATION – where the applicant seeks leave to subpoena the complainant’s psychological records – where the applicant wishes to subpoena the complainant’s school records – when records may be produced without leave – when court may order production of documents without giving leave – standing of the counselled person.
LEGISLATION:	*Criminal Code Act 1899* (Qld) s 590 *Criminal Practice Rules 1999* (Qld) r 30 *Criminal Procedure Act 1986* (NSW) s 299D *Director of Public Prosecutions Act 1984* (Qld) *Evidence (Miscellaneous Provisions) Act 1958* (Vic) s 32 *Evidence Act 1977* (Qld) ss 14A, 14B,14F, 14G, 14H, 14L, 14M, 14N
CASES:	*Bromley v The Queen* (1986) 161 CLR 315 *Farrell v The Queen* (1998) 194 CLR 286 *KS v Veitch (No 2)* (2012) NSWLR 172 *R v Demos* [2012] QCA 165 *R v JML* [2019] QDCPR 23 *R v Rohan* [2018] NSWCA 89
COUNSEL:	Ms E Kelly for the Crown Ms C Lovel for the applicant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Legal Aid Queensland for the applicant