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

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
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.

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
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

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 TBA

Details

AGLC: R v TBA [2023] QDC 250
Case: [2023] QDC 250
Decision Date: 21 December 2023

CaseChat Overview and Summary

The applicant in this case sought leave to appeal against a decision that allowed the disclosure of personal information of the complainant in a criminal proceeding. The court was required to decide whether the disclosure of the complainant's personal information was necessary and proportionate in the interests of justice. The case involved a conviction for the applicant for a serious criminal offence and the complainant's personal information was deemed necessary for the applicant's legal team to effectively challenge the conviction.

The court considered whether the disclosure of the complainant's personal information was necessary and proportionate in the interests of justice. The court found that the disclosure was necessary as the information was relevant to the applicant's defence and the applicant's legal team required the information to effectively challenge the conviction. The court also found that the disclosure was proportionate as the information was necessary and there were measures in place to protect the complainant's privacy. The court concluded that the disclosure of the complainant's personal information was in the interests of justice.

The court refused the applicant's application for leave to appeal, and ordered that the complainant's personal information be disclosed to the applicant's legal team and to the Federal Circuit and Family Court of Australia for the purposes of the appeal. The court found that the disclosure was necessary and proportionate in the interests of justice, and that there were measures in place to protect the complainant's privacy. The court also noted that the applicant had not demonstrated that the disclosure would cause the complainant significant harm.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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