R v WJA - [2023] QDCPR 102

DISTRICT COURT OF QUEENSLAND

CITATION:

R v WJA [2023] QDCPR 102

PARTIES:

THE KING

v
WJA

(applicant/defendant)

FILE NO:

102/2023

DIVISION:

Criminal

PROCEEDING:

s 590AA Application

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

13 December 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

3 November 2023

JUDGE:

Long SC

ORDER:

The application is dismissed.

CATCHWORDS:
PRACTICE AND PROCEDURE – SEXUAL ASSAULT COUNSELLING PRIVILEGE – Application pursuant to ss 14F, and 14G of the Evidence Act 1977 (Qld) initially seeking leave to subpoena records likely to include some protected counselling communications – Whether there is any sufficient basis demonstrated to grant leave to subpoena any protected counselling communication – Whether it is appropriate to make any order pursuant to s 14M(4), in order to facilitate any consideration of any document to determine whether or not it is a protected counselling communication

LEGISLATION:

Evidence Act1977 (Qld) ss 14A, 14F, 14G, 14H, 14L, 14M Criminal Code (Qld) ss 590AB, 590AE, 590AJ(2)(c) and 590AL

CASES:

Bromley v The Queen (1986) 161 CLR 315
R v CDJ [2020] QDCPR 115
R v DO [2019] QDCPR 49
R v HJJ [2023] QDCPR 22
R v Spizzeri [2000] QCA 46
R v TJ [2023] QDCPR 21
R v TRKJ (No. 2) [2023] QDC 231

COUNSEL:
A Cousen for the Applicant/ Defendant
A Spiteri for the Respondent

E Coker for the Counselled Person

SOLICITORS:
Aitken Whyte Solicitors for the Applicant/ Defendant
Office of the Director of Public Prosecutions for the Respondent

Women’s Legal Services for the Counselled Person

Introduction

On 22 March 2023, the defendant (“applicant”) was indicted in respect of three charges of rape, alleged to have been committed on 28 May 2022, by the then 33-year-old defendant in respect of the then 15-year-old complainant.
By application filed 24 August 2023, the applicant seeks orders in relation to records held, in respect of the complainant, by “Childrens Health Queensland Hospital and Health Service” and “Sunshine Coast Hospital and Health Service”, granting leave to:
“a.     Subpoena ‘protected counselling communications’;
b.    Produce to a Court, adduce evidence of or otherwise use ‘protected counselling communications’; and
c.     Otherwise disclose, inspect or copy ‘protected counselling communications’.”
Accordingly, the applicant seeks leave to overcome all of the restrictions otherwise placed pursuant to s 14F of the Evidence Act1977, upon material within the definition of “protected counselling communication” (‘PCC’) in s 14A of that Act.
It is accepted that there has been compliance with the service requirements in s 14G and the counselled person appeared by legal representatives in this application.
As this is an application brought within and in the context of the proceeding against the defendant on the indictment, it is convenient to first set out an overview of the prosecution case in respect of the indicted allegations, as that was disclosed in the materials placed before the Court.
Leaving aside any reference to available evidence as to an issue as to whether or not the applicant knew the complainant was aged 15, as opposed to believing on reasonable grounds that she…

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 WJA

Details

AGLC: R v WJA [2023] QDCPR 102
Case: [2023] QDCPR 102
Decision Date: 13 December 2023

CaseChat Overview and Summary

The case of R v WJA involved an application by the prosecution to subpoena certain records that might include protected counselling communications (PCC), with the primary concern being whether the court should grant leave to subpoena any such protected communications. The Queensland District Court was tasked with determining if there was sufficient basis to allow the subpoena of these potentially protected communications, and whether an order should be made under section 14M(4) to facilitate the examination of documents to determine if they were protected counselling communications.

The court considered the implications of sections 14F and 14G of the Evidence Act 1977 (Qld), which govern the disclosure of PCC, and noted the statutory requirement that leave from the court must be obtained before such communications can be disclosed. The court recognised the rights of the records holder and the importance of child protection legislation in the context of this application. It was emphasised that the leave could only be granted if certain criteria were met, as outlined in section 14H of the Act.

In the end, the court concluded that it was not appropriate to make an order under section 14M(4) at that stage. The court reasoned that it was premature to do so without first obtaining any available records that did not include PCC. This approach would allow the rights of the records holder to be exercised, and potentially provide context and framework for any future application under section 14G. The court highlighted that the assessment of the potential probative value of the PCC could not be made on a speculative basis and required a concrete demonstration of what might be found in the communications.

The court dismissed the application, noting that any benefit from subpoenaing records without including PCC could be pursued separately, and that the application did not necessarily preclude the possibility of obtaining non-protected parts of the records. Additionally, the court addressed the notification requirement under section 14G(2)(b) and the definition of "counsellor" in section 14A, emphasising that the obligation to notify the counsellor might not be as stringent as suggested by the applicant.

ORDERS:
The application was dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Any such prospect was met with contrary submissions for the counselled person and ultimately in my view, correctly so. Notwithstanding the particular interest of the counselled person in respect of the privilege attaching to her in respect of her PCC, the submissions for her did not share any particular concern in respect of any placement of onus upon the records holder to firstly determine the material to which the privilege would attach. Or at least, the position was taken that this is what must necessarily occur. As understood, this was in appropriate recognition that: (a)The production of the documents into the control of the Court is a matter for the holder of the records, who may seek to exercise rights of objection otherwise available,[21] and who may have an interest in issues arising under other legislation such as the Child Protection Act1999;[22] and (b)The effect of s 14F, as it operates in connection with the proceeding on the indictment before the Court, extends to preventing all persons from producing PCC to a court,[23] and otherwise disclosing, inspecting or copying PCC,[24] other than with the leave of the court. As noted in many earlier decisions, such leave can only be given upon satisfaction of the criteria in s 14H.[25][21]Such as to the breadth or oppressive nature of the request or as to the costs of compliance. See: R v CDJ [2020] QDCPR 115 at [46] and R v Spizzeri [2000] QCA 469.[22]See R v HJJ [2023] QDCPR 22 at [3]-[10] and [16]-[21], to exemplify the difficulties which may otherwise arise.[23]Section 14F(b). [24]Section 14F(c).[25]R v TKRJ (No. 2) [2023] QDC 231 at [30] and the authorities there cited.Conclusions Notwithstanding some identifiable prospect of there being a later need to deal with issues arising pursuant to s 14M, it is not appropriate to consider now making any order pursuant to s 14M(4), in order to facilitate any consideration of any document to determine whether or not it is PCC. Despite some obvious advantages in seeking to do so whilst the legal representatives for the counselled person are engaged on this application and the prospect of the Court being able to potentially assist in terms of the expediency of doing so, it would be necessarily premature to do that. The initial step, as suggested, of the applicant first seeking to obtain any available records which do not include any PCC, will not only serve to allow for the usual exercise of the rights of the records holder and the identification of any other relevant issues arising under child protection legislation, but may also be expected to provide some useful context and framework for any further application to be made under s 14G. Doing so may also provide further information to assist in determining whether or not it is necessary and/or desirable to bring any further application pursuant to s 14G, including by having regard to s 14H(1)(b). Further, it will be upon any such application that it may be expected that any issue to be first determined under s 14M, will be specifically identified.[26] Such an approach may also enable the identification of a particular counsellor(s) in respect of specific items of PCC and in respect of which, any such issues may arise.[26]Cf: R v TKRJ (No. 2) [2023] QDC 231 at [43]-[46].

Ratio Decidendi

Legal Principle Established

As was observed in R v TJ,[15] when dealing with an application for leave to subpoena protected counselling communications and in addressing the question as to whether the PCC sought will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value, involves an assessment of what is demonstrated as expected to be found in the PCC. Unfortunately and as is all too frequently encountered in applications of this type and as is the essence of the submissions correctly made by the counselled person here, that test is not capable of being satisfied by a speculative approach of asserting that there is the possibility of some material being found which, if found, might or even would have substantial probative value.[16][15][2023] QDCPR 21 at [20]-[21] and [40]-[41].[16]See also: R v TRKJ (No. 2) [2023] QDC 231 at [36]-[37].Further considerations When confronted with this reality and the blunt indication in the submissions for the counselled person, that it remained open to the applicant to seek to gain any benefit which might accrue from otherwise seeking to subpoena the records without the inclusion of any PCC, the response was to explain that “the application is for leave to subpoena documents that could be protected counselling communications”[17] and that:“it’s really expected that there will be some records returned from those hospitals that don’t meet the definition and may be diagnostic in nature, but it’s difficult to – from reviewing records of that nature in the past, they’re not easy to have just taken out the protected aspects of that material, so it may be that parts are and parts aren’t, even the non-protected parts could be significant in our case as well.” [18] This was also addressed in the context of the practice direction requiring this application because it is expressed to apply “where it is likely protected counselling communications as defined in s 14A of the Evidence Act 1977 will be contained in documents intended to be obtained by subpoena”. [19] However, that it is not necessarily a direction that precludes what is indicated or suggested by the counselled person, as the practice direction is only directed at the application of the provisions of the Evidence Act as they relate to PCC. [17]T1-11.36-37.[18]T1-11.38-40.[19]Practice Direction 5 of 2021. Indeed, it is to be noted that although and understandably, in the context of this explanation of the applicant’s approach, no issue has been raised as to the notification of this application being effectively given to the holder of the documents sought, as compliance with the obligation in s 14G(2)(b), to give notification of the application to “the counsellor”. It may well be that, having regard to the definitions of “counsel” and “counsellor” in s 14A, this is not what is expected by s14G(2)(b), or by s 14G(3)(b), and as potentially engaging a right of appearance of “the counsellor … to whom the communication relates”, pursuant to s 14L.[20] These considerations are further complicated by understanding the effect of s 14A(4), in extension of the concept of “protected counselling communication”, as defined in s 14A(1), as follows:[20]Section 14G(3)(c) and s 14L.“(1) A protected counselling communication is an oral or written communication made in confidence—(a) by a counselled person to a counsellor; or(b)by a counsellor to or about a counselled person to further the counselling process; or(c)about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process.…..(4) A reference in this division to a protected counselling communication includes a reference to— (a)a document to the extent it contains a protected counselling communication; or (b)evidence to the extent it discloses a protected counselling communication.”

CITATION:	R v WJA [2023] QDCPR 102
PARTIES:	THE KING v WJA (applicant/defendant)
FILE NO:	102/2023
DIVISION:	Criminal
PROCEEDING:	s 590AA Application
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	13 December 2023
DELIVERED AT:	Maroochydore
HEARING DATE:	3 November 2023
JUDGE:	Long SC
ORDER:	The application is dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – SEXUAL ASSAULT COUNSELLING PRIVILEGE – Application pursuant to ss 14F, and 14G of the Evidence Act 1977 (Qld) initially seeking leave to subpoena records likely to include some protected counselling communications – Whether there is any sufficient basis demonstrated to grant leave to subpoena any protected counselling communication – Whether it is appropriate to make any order pursuant to s 14M(4), in order to facilitate any consideration of any document to determine whether or not it is a protected counselling communication
LEGISLATION:	Evidence Act1977 (Qld) ss 14A, 14F, 14G, 14H, 14L, 14M Criminal Code (Qld) ss 590AB, 590AE, 590AJ(2)(c) and 590AL
CASES:	Bromley v The Queen (1986) 161 CLR 315 R v CDJ [2020] QDCPR 115 R v DO [2019] QDCPR 49 R v HJJ [2023] QDCPR 22 R v Spizzeri [2000] QCA 46 R v TJ [2023] QDCPR 21 R v TRKJ (No. 2) [2023] QDC 231
COUNSEL:	A Cousen for the Applicant/ Defendant A Spiteri for the Respondent E Coker for the Counselled Person
SOLICITORS:	Aitken Whyte Solicitors for the Applicant/ Defendant Office of the Director of Public Prosecutions for the Respondent Women’s Legal Services for the Counselled Person