R v TRKJ (No. 2)

Case [2023] QDC 231

DISTRICT COURT OF QUEENSLAND

CITATION:

R v TRKJ (No. 2) [2023] QDC 231

PARTIES:

THE KING

v

TRKJ

(defendant/applicant)

FILE NO:

Indictment 357/2019

DIVISION:

Crime

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

District Court
at Maroochydore

DELIVERED ON:

8 December 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

25 November 2022; further written submissions received 6 October 2023 and 11 October 2023

JUDGE:

Cash DCJ

ORDERS:

The parties are to prepare and present to the court a draft order reflecting my decision.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE – where defendant/applicant is charged on indictment with three alleged offences of indecent treatment of a child under 16, under care – where the complainant has seen counsellors and is a counselled person – where there is an application for leave to compel the production of, inspect and use a ‘protected counselling communication’ (‘PCC’) – what does the legislation mean? – how should the legislation operate?

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14A
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Criminal Practice Act 1986 (NSW), s 299B

Evidence Act 1977 (Qld), ss 14E, 14F, 14G, 14H, 14L, 14M

Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld)

CASES:

EFW v R [2023] QDCPR 33, [71]
Egan v Willis, [1998] HCA 71; (1998) 195 CLR 424, [83].
Fenton v Hampton (1858) 11 Moo 347, 360; 14 ER 727, 732
Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 5, 16
KS v Veitch (No 2) (2012) 84 NSWLR 172
MH v HJ [2023] QSC 176, [23], [54]-[55], [62], [64]
NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535, [4], [42]-[49]
R v CDJ [2020] QDCPR 115, [51]
R v DN [2019] QDCPR 45, [12]
R v Gee [2023] QDCPR 17, [13]-[17]
R v HJJ [2023] QDCPR 22, [10]-[11], [36]
R v JML [2019] QDCPR 23, [28]-[29], [38], [46]
R v Klease [2020] QDCPR 98, [15]
R v LFC [2020] QDCPR 60
R v LSS [1998] QCA 303; [2000] 1 Qd R 546, [11]
R v Pratt (No. 2) [2022] QDCPR 42, [6]
R v TJ [2023] QDCPR 21, [49]
R v TRKJ [2020] QDCPR 124, [34], [49]
R v Yorkston (No 2) [2023] QDCPR 23, [9]
Rohan v R [2018] NSWCCA 89, [52]-[67].

TRKJ v Director of Public Prosecutions (Qld) & Ors; Kay v Director of Public Prosecutions (Qld) [2021] QSC 297; (2021) 9 QR 472; 293 A Crim R 32, [23], [27], [32], [69], [71]-[74], [78]-[79], [92], [99]-[102], [104], [108]-[109], [119], [142]-[144], [193], [198], [204]

COUNSEL:

G Cummings for the prosecution
K M Hillard with A J Cousen for the defendant/applicant
T Morgans for the counselled person

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution
Lumme Rynderman Legal for the defendant/applicant
Women’s Legal Service for the counselled person

Introduction

  1. The defendant is charged on…

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Details
AGLC
R v TRKJ (No. 2) [2023] QDC 231
Case
[2023] QDC 231
Decision Date

CaseChat Overview and Summary

The case of R v TRKJ (No. 2) involves the defendant, TRKJ, who is charged with three counts of indecent treatment of a child under 16 who was in their care. The primary issue in the case revolves around the admissibility of a protected counselling communication (PCC) that the complainant had with a counsellor. The defendant applied for leave to compel the production, inspection, and use of these PCCs in court. The legal questions addressed pertain to the interpretation and operation of the relevant legislation concerning PCCs and whether the court has the authority to inspect documents to decide if they are PCCs.

The court examined the legislative provisions, particularly Section 14M, which allows the court to consider a document or evidence to determine if it is a PCC. The court noted that while some judges have interpreted Section 14M as providing a basis for compelling the production of PCCs, others have held that it only allows for the inspection of documents to determine if they qualify as PCCs. The court concluded that Section 14M does not empower the court to grant leave to subpoena PCC material. It was emphasised that the court’s power to inspect documents to decide if they are PCCs exists by implication but should be exercised sparingly and only in finely-balanced cases.

Ultimately, the court found that the public interest in making the PCC available for use substantially outweighed the interest in preserving the confidentiality of the PCC and protecting the counselled person from harm. Consequently, the defendant was granted leave to use and adduce evidence of certain PCCs related to the evidence of preliminary complaint. However, the applications to use other PCCs and to subpoena PCCs from Child Safety were dismissed. The parties were directed to prepare and present a draft order reflecting the court’s decision.

Orders

Orders of the court

The parties are to prepare and present to the court a draft order reflecting my decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is another provision I would note at this point. Section 14M is the only provision that expressly contemplates the court inspecting or examining a document or evidence. The section provides:14M Deciding whether document or evidence is protected counselling communication(1) This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.(2) The court may consider a document or evidence to decide whether it is a protected counselling communication.(3) While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—(a)anyone who is not an essential person; and(b)an essential person, if—(i)the counselled person to whom the document or evidence relates asks that the essential person be excluded; and(ii)the court considers excluding the essential person would serve a proper interest of the counselled person.(4) The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.(5) This section applies despite sections 14D and 14F. How these disparate provisions might operate in a sensible and cohesive manner has been the subject of much judicial consideration.What has been said about how the legislation operates? Some judges have expressed the view that section 14M provides a basis upon which the court can compel the production of documents for the purpose of determining the issues raised by section 14H. Orders have been made, in apparent reliance upon section 14M, granting leave to applicants to subpoena PCC. Other judges have relied upon 14M as authorising the inspection of material by the court to decide the issues raised by section 14H.[15] This approach has been questioned by other judges[16] and must now be understood to be wrong. Orders of this kind are ‘irregular as s 14M does not empower the court to grant leave to issue a subpoena for PCC material.’[17] Section 14M provides no authority to produce or inspect documents other than to determine the narrow question of whether a document or evidence is PCC.[15]For example, R v JML [2019] QDCPR 23, [28]-[29]; R v DN [2019] QDCPR 45, [12]; R v Klease [2020] QDCPR 98, [15]; R v Yorkston (No 2) [2023] QDCPR 23, [9].[16]For example, R v CDJ [2020] QDCPR 115, [51], R v Gee [2023] QDCPR 17, [13]-[17][17]MH v HJ [2023] QSC 176, [23]. The question of whether the court has any power to inspect and consider documents to decide the questions posed by section 14H has been considered by some judges. While the legislation is silent, it has been decided by some judges that by implication the court has such a power, though it is to be exercised sparingly.[18] In TRKJ, Applegarth J expressed the view that while the legislation did not exclude the possibility of the court inspecting documents, it would only be occasionally that there was a ‘need for a court to inspect documents in a finely-balanced case before deciding whether to grant an application for leave or to decide the conditions upon which leave is granted.’[19] His Honour went on to say:[102] In my view, the court’s power to hear and determine an application for leave includes the power to consider the documents in question should the occasion to do so arise. An intention to deprive the court of the opportunity to do so does not arise by necessary implication. An interpretation that does not deprive the court of a power to consider the documents is the interpretation that best achieves the purpose for which the court’s power to hear and determine applications was conferred.…[104] The fact that a power exists for the court to itself inspect documents does not mean that it will be necessary or appropriate for a judge to exercise the power in most cases. It certainly does not mean that the power should be exercised as a matter of routine in applications under Subdivision 3. The implied power does not exist to cure deficiencies in proof by the applicant for a grant of leave.[105] Its too frequent exercise would undermine a purpose of the provisions which is to restrict access to protected counselling communications.[18]R v LFC [2021] QDCPR 60, TRKJ. [19]TRKJ, [99] (see also [198]).

Decision

Reasons for decision

Having regard to the content of the PCC I am satisfied that the public interest in making it available for use substantially outweighs the public interest in preserving the confidentiality of the PCC and protecting the counselled person from harm.Conclusion For these reasons, the applicant should have leave to use and adduce evidence of the PCC contained in pages 111 to 118 inclusive of the applicant’s bundle of material to the extent it relates to evidence of preliminary complaint. The application to use the PCC contained in Dr Jolayemi’s documents pertaining to a potential diagnosis of the counselled should be dismissed. The application to use the remaining PCC in the documents of Zig Zag and Laurel should be dismissed. The application for leave to subpoena PCC from Child Safety should be dismissed. The parties are to prepare and present to the court a draft order reflecting my decision.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.