R v TBA

[2023] QDC 250

DISTRICT COURT OF QUEENSLAND

CITATION:              R v TBA [2023] QDC 250 PARTIES:

THE KING

(respondent)

v TBA

(applicant)

FILE NO/S:               188 of 23

DIVISION:               Criminal

PROCEEDING: Application under s 590AA of the Criminal Code 1899 (Qld)

ORIGINATING COURT:

District Court of Queensland at Maroochydore

DELIVERED ON:     21 December 2023

DELIVERED AT:     Brisbane HEARING DATE: 21 December 2023 JUDGES:    Loury KC DCJ

ORDER:  1.  Application for leave is refused.

2. The complainant’s name, address, place of employment and children’s names as contained in her statements to police and in her evidence at trial be revealed to the applicant’s lawyers and to the Federal Circuit and Family Court of Australia for the purposes of those proceedings.

COUNSEL:R Taylor for the applicant C Wallis for the respondent

SOLICITORS:          McGinness & Associates for the applicant

Director of Public Prosecutions (Q) for the respondent

Introduction

1. The applicant applies for an order releasing him from his Harman¹ obligation with respect to certain documents received during the course of a criminal proceeding. The Harman obligation prohibits the use of a document which a party to litigation is compelled to disclose to the other party, for any purpose other than for that which it was given unless it is received into evidence.² The rationale for the obligation has been explained as being to ensure that a person who is obligated to provide material does not suffer a “serious invasion of the privacy and confidentiality of [their] affairs” that is more oppressive than is strictly required.³

2. The applicant was charged with 18 counts of sexual and violent offences alleged to have been committed against his former wife during the course of their lengthy marriage. The trial in that matter commenced before me on 23 May 2023. On 25 May 2023 the prosecution entered a nolle prosequi and the jury and applicant were discharged. That occurred during the course of the cross-examination of the complainant and after I had given the prosecution an intimation about their prospects of success.

1. In February 2020 the complainant commenced proceedings in the Federal Circuit and Family Court of Australia ("FCFCA") seeking financial orders. As part of those proceedings, the complainant is pursing what is referred to as a “Kennon claim”.⁴ If a litigant in family proceedings can establish that they have been subject to a violent course of conduct throughout the relationship, and that such violence has made it more difficult for them to contribute, then an adjustment can be made in their favour to reflect this in any financial settlement.⁵

2. The allegations of physical and sexual violence that were the subject of the charges before the District Court will, it seems, be central to the proceedings in the FCFCA. The complainant’s most recently filed affidavit in those proceedings lifts material from the statement that she gave to police in the criminal proceedings.

¹ Harman v Secretary of State for the Home Department [1983] 1 AC 281 (Harman).

² Hearne v Street (2008) 235 CLR 125 per Hayne, Heydon and Crennan JJ at 154.

³ Ibid at 158-159, [107].

⁴ Kennon v Kennon [1997] FamCA 27.

⁵ Ibid.

1. The applicant seeks the leave of this Court to use documents disclosed by the prosecution pursuant to their disclosure obligations under the Criminal Code 1899 (Qld) in the FCFCA proceedings. The documents are not particularised in the application. It is apparent that the documents sought are the four statements of the complainant to police; medical records of the complainant which were disclosed by the prosecution to the applicant; records of a life coach or psychologist over which the complainant waived privilege and emails the complainant sent to police.

1. The respondent, Director of Public Prosecutions, submits that the material disclosed during the course of criminal proceedings prosecuted by the State are not subject to the Harman obligation and leave is unnecessary. The respondent further submits that if the undertaking does apply leave is still not required where the intended use of the documents is not for a collateral or ulterior purpose.

1. The Harman obligation was the subject of consideration in Hearne v Street where the plurality said: ⁶

   “Where one party to litigation is compelled, either by reason of a rule of court, or by reason or a specific order of the courts, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principal applied include documents inspected after discovery answer to interrogatories, documents produced on subpoena; documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.” (citations omitted)

1. Lord Diplock and Lord Roskill each in that case specifically limited the obligation to civil actions or litigation. Neither the respondent nor applicant could find any authority to suggest that the Harman undertaking applies to criminal proceedings prosecuted by the State.

⁶ (2008) 235 CLR 125 at [96].

1. In any event the undertaking ceases to operate when the relevant material is made public as part of the litigation.⁷

2. The statements of the complainant were tendered at a committal hearing in open court. Thirty-nine exhibits “outlined on the index to brief” were notionally tendered “in bulk” with the prosecutor instructed by the learned Magistrate to retain possession of them until an order was made for their production to the court to which the applicant was committed.

1. Whilst the applicant has not been specific as to which documents the Harman obligation is said to apply, they have brought the application out of an abundance of caution.

1. I am not satisfied that the Harman obligation applies to criminal proceedings brought by the State. The complainant was not a party to that litigation and the material that was disclosed was not compelled by the Court but was none-the-less required by legislation. The statements were in any event made public when tendered at the committal hearing. The medical records of the complainant which were disclosed after the committal can be subpoenaed. The psychological records were obtained after the committal hearing. The complainant waived privilege over those documents. I do not know if there were limits to that waiver. She may still be able to claim sexual assault counselling privilege over those documents. It is appropriate those documents be subject to a further subpoena so that she can make a claim of privilege should she wish to do so. The emails that the complainant sent to the police that were obtained subsequent to the committal hearing can also be obtained by way of a subpoena.

1. There is a prohibition in the Criminal Law (Sexual Offences) Act 1978 (Qld) s 6, prohibiting any report made or published concerning an examination of witnesses or a trial, other than a report specified in s 8(1) revealing the name, address, school or place of employment of a complainant or any other particular likely to lead to identification of a complainant unless the court, for good and sufficient reason shown, orders to the contrary.

⁷ Harman at 306, 307, 319-326; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 per Mason CJ

at 32-33.

1. A report is defined to mean “an account in writing and an account broadcast or distributed in any way in or as sound or visual images”. This section attaches to the statements which were tendered to the Magistrates Court. Further the evidence of the complainant in the trial was given in closed court and this provision would apply to any publications of identifying details.

1. There is good and sufficient reason shown to make an order specifying that the complainant’s name, address, place of employment and children’s names which are contained within the statements and also contained within her evidence at the trial be revealed by the applicant to his lawyers for the purposes of the FCFCA proceedings and to that Court if such order is thought necessary. The extent to which any publication is permitted is for the purposes of the FCFCA proceedings.

1. The application for leave is refused. I permit the complainant’s name, address, place of employment and children’s names as contained in her statements to police and in her evidence at trial be revealed to the applicant’s lawyers and to the FCFCA for the purposes of those proceedings.

Postscript:

1. During the course of the complainant’s evidence in the criminal proceedings I made comments to the Crown Prosecutor which were directed to intimating to him to consider his position as to whether the prosecution had reasonable prospects of success. Those comments by me were not findings made with respect to the evidence of the complainant. The complainant was not given an opportunity to be heard with respect to those matters. The comments were not directed to the substantive allegations. It would be wrong to consider that I made any finding with respect to her evidence.