TRKJ v Director of Public Prosecutions (Qld); Kay v Director of Public Prosecutions (Qld)
[2021] QSC 297
•16 November 2021
SUPREME COURT OF QUEENSLAND
CITATION:
TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors [2021] QSC 297
PARTIES:
TRKJ
(Applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)(First Respondent)
andJE
(Second Respondent)
and
A JUDGE OF THE DISTRICT COURT OF QUEENSLAND
(Third Respondent)
andATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(Intervener)
AND
KAY
(Applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)(First Respondent)
andMS
(Second Respondent)
and
A JUDGE OF THE DISTRICT COURT OF QUEENSLAND
(Third Respondent)
andATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(Intervener)
FILE NO:
3760 of 2021
5632 of 2021
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
16 November 2021
DELIVERED AT:
Brisbane
HEARING DATE:
15 and 16 September 2021
JUDGE:
Applegarth J
ORDER:
The application is dismissed
CATCHWORDS:
EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE – where the applicant sought leave under s 14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect, copy and use protected counselling communications – where the judge did not inspect the documents in determining whether to grant leave – whether an implied power exists to order the documents be produced to the court so the court can inspect them on an application for leave to access – whether an implied power exists to inspect the documents when deciding an application for leave to access – whether the court is required to inspect the documents when deciding an application for leave to access
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant sought leave under s 14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect, copy and use protected counselling communications – where the judge did not inspect the documents in determining whether to grant leave – whether the failure to inspect the documents amounted to a constructive failure to exercise jurisdiction, a misapprehension of power or was otherwise a jurisdictional error
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – COMPATIBILITY WITH HUMAN RIGHTS LEGISLATION – whether the interpretation adopted by the judge of Division 2A of the Evidence Act 1977 (Qld) is “compatible with human rights” under the Human Rights Act 2019 (Qld)
Criminal Procedure Act 1986 (NSW), s 299B
District Court of Queensland Act 1967 (Qld), s 29
Evidence Act1977 (Qld), Part 2, Division 2A, ss14A, 14B, 14C, 14D, 14E, 14F, 14G, 14H, 14I, 14K, 14L 14M, 14N
Human Rights Act 2019 (Qld), ss 8, 13, 25, 31, 32, 50, 108Judicial Review Act 1991 (Qld), Part 5
Victims of Crime Assistance and Other Legislation Amendment Act2017 (Qld)Australian Institute for Progress Ltd v Electoral Commissioner of Queensland (2020) 4 QR 31; [2020] QSC 54, cited
KS v Veitch (No 2) (2012) 84 NSWLR 172, cited
Fletcher & Ors v Fortress Credit Corporation (Australia) II Pty Limited & Ors [2014] QSC 303, cited
NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25, cited
PRS v Crime and Corruption Commission [2019] QSC 83, cited
R v CDJ [2020] QDCPR 115, cited
R v JML [2019] QDCPR 23, cited
R v Kay [2021] QDCPR 10, considered
R v LFC [2021] QDCPR 60, considered
R v MFJ [2021] QChC 34, cited
R v TRKJ [2020] QDCPR 124, considered
Rohan v R [2018] NSWCCA 89, consideredTaylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, cited
COUNSEL:
K Hillard and A J Cousen for the applicant in 3760 of 2021
K Hillard and N Turner for the applicant in 5632 of 2021
G J Cummings for the first respondents
A Hoare and T Morgans for the second respondentsF Nagorcka and K Blore for the Attorney-General intervening
SOLICITORS:
Aitken Whyte Lawyers for the applicant in 3760 of 2021
Chelsea Emery & Associates for the applicant in 5632 of 2021
Office of the Director of Public Prosecutions for the first respondents
Women’s Legal Service for the second respondentsCrown Law for the Attorney-General intervening
Table of Contents
Practices
The relevant legislation
Who should assist the court to decide issues?
The staged process
Does an implied power exist for the court to consider the documents at the leave stage?
Comparable legislation
The existence of a power to inspect and its use
The decision in R v LFC
Comparable practices of inspecting documents in the absence of an express power
Is an implied power consistent with the subject matter or purpose of the provision?
Conclusion on the issue of statutory interpretation
The exercise of powers for their intended purpose
Can the court order that the documents be produced to it for the purpose of an application for leave under Subdivision 3?
The decision under review in proceeding 3760 of 2021
The challenge to the decision
Was the decision affected by jurisdictional error?
Did the judge misapprehend that he lacked power to peruse the documents?
Did the Act require the judge to peruse the documents?
An alleged error about standing
The need to demonstrate jurisdictional error
Conclusion in proceeding number 3760 of 2021
The decision in proceeding number 5632 of 2021
Costs
Other matters
The Human Rights Act
The workability of the legislation
The applicant in each of these proceedings faces a charge or charges in the District Court of Queensland. Each applicant applied for orders under Subdivision 3 of Division 2A of the Evidence Act1977 (Qld) to access “protected counselling communications”. The application in District Court proceeding 357 of 2019 was dismissed on 18 December 2020. The application in District Court proceeding 332 of 2019 was dismissed on 5 February 2021.
In each proceeding, the learned District Court judge declined to inspect the documents to decide the issues presented by s 14H, particularly whether the protected counselling communications, by themselves or having regard to other evidence, had “substantial probative value”.
Each applicant seeks to engage this Court’s supervisory jurisdiction over inferior courts and tribunals. Orders are sought in the nature of certiorari to quash the decision to dismiss his application and to remit the matter for reconsideration according to law.
In essence, the applicant contends that the judge misapprehended the nature and extent of his powers to inspect the documents, failed to exercise a power conferred by Division 2A of the Act, and thereby made a jurisdictional error.
Each application is opposed on various grounds. In broad outline, the grounds of opposition are:
(a)the relevant decision was the result of an unremarkable exercise of a discretion whether or not to inspect documents during the hearing of an application for leave to order that protected counselling communications be subpoenaed, produced to the court and then disclosed to the defendant in proceedings for an offence;
(b)there was no error in the judge’s decision to not personally inspect the documents or any such error was not a “jurisdictional error”; and
(c)this Court’s supervisory jurisdiction should not be exercised on discretionary grounds because it would result in a fragmentation of the criminal justice process and because the applicant has other remedies.
Each application to the District Court, like each proceeding to this Court, arose from different facts. Therefore, different arguments were raised before the District Court about why the protected counselling communications in each case had “substantial probative value” in the particular circumstances. The two proceedings in this Court raise a number of common questions of law. Understandably, the parties agreed that they be heard at the same time.
Practices
The applicants’ submissions refer to what are said to be different practices by judges in the District Court concerning the inspection of material that includes protected counselling communications on the hearing of what I will simply describe as leave to access applications.
Since the decisions under review were delivered, the Chief Judge of the District Court has issued a Practice Direction concerning applications about protected counselling communication.[1]
[1]District Court of Queensland, Practice Direction Number 5 of 2021: Protected Counselling Communication, 11 June 2021.
With or without the benefit of that Practice Direction, Division 2A of the Evidence Act creates a number of challenging issues including:
·how a judge decides a contentious application for access;
·how and with what assistance the status of a document or part of a document as a protected counselling communication is determined;
·the standing of the counselled person (or a counsellor) to participate in the hearing of an application to decide whether to grant leave to do one or more of the things stated in s 14F;
·the staging of the processes to compel, whether by subpoena or otherwise, production of a protected counselling communication to the court; to obtain leave to disclose, inspect or copy a protected counselling communication; and to obtain leave to adduce evidence of or otherwise use a protected counselling communication;
·whether the counselled person’s legal representative, the prosecution or some other party should be granted limited access to the relevant material on certain conditions so as to assist the judge to decide whether a document is a protected counselling communication and to decide issues related to the granting of leave to do one or more of the things stated in s 14F;
·the existence of an implied power for the judge to inspect the documents at the leave stage; and
·the circumstances in which any such power should be exercised.
The applications to this Court are not the vehicle to address divergent practices in relation to the inspection by a judge of documents for the purpose of deciding whether a document is a protected counselling communication (such a power is expressly conferred by s 14M(2)) or determining questions of leave under s 14H. Nor is it the function of this Court to resolve policy questions that would make the current law more workable in practice or lead to the law being amended to clarify the anticipated roles of parties (including legal representatives of the counselled person) in assisting the court to decide issues that arise under Subdivision 3.
The determination of the legal issues that I am required to decide about the relevant provisions may assist District Court judges. However, this judgment is not a manual and the experience of individual District Court judges in such matters, not to mention their collective experience, far exceeds mine.
In addition, what superficially may appear to be a divergence in the practices of individual judges of the District Court in inspecting protected counselling communications in the course of determining an application for leave may be the result of the different facts of specific cases, including the evidence and arguments about whether the protected counselling communications have substantial probative value. The approach taken in, and the outcome of, individual cases may depend on the assistance that a judge is able to obtain from parties about the contents of the protected counselling communications. Apparently divergent practices between individual judges in inspecting such material may not necessarily be the product of differing views about the existence of a power to inspect if the occasion arises. It may be the product of case-specific matters that affect individual assessments of whether the occasion to exercise a power, express or implied, for the judge to inspect the documents exists in the case at hand.
The relevant legislation
Division 2A of Part 2 of the Act is headed “Sexual assault counselling privilege”. It was enacted by the Victims of Crime Assistance and Other Legislation Amendment Act2017 (Qld) and came into effect on 1 December 2017.
The policy objectives for introducing a sexual assault counselling privilege appear in the Explanatory Notes to the 2016 Bill, and are helpfully quoted by Fantin DCJ in R v JML.[2]
[2][2019] QDCPR 23 at [37] (“JML”).
Division 2A follows, but does not reflect in some respects, the New South Wales legislative model that provides an absolute privilege in preliminary proceedings and a qualified privilege in other proceedings. The legislation “seeks to ensure the appropriate balance in each case between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications”.[3]
[3]Explanatory Notes, Victims of Crime Assistance and Other Legislation Amendment Bill 2016 (Qld) at 2.
The statutory privilege, either absolute or qualified, seeks to protect the privacy of an individual whose rights are invaded by a sexual assault. The provisions about privilege “seek to recognise the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery and may also encourage them to report the crime to police”.[4]
[4]Ibid.
Subdivision 1 of Division 2A in s 14A defines a “protected counselling communication” and that definition picks up other statutory terms such as “counsel”, “counselled person” and “counsellor” that are defined in s 14B.
The privilege means that in a committal proceeding or a bail proceeding a person can not do any of the following things in connection with the proceeding:[5]
“(a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
(b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
(c) otherwise disclose, inspect or copy a protected counselling communication.”
By force of s 14D, the privilege in connection with those preliminary proceedings is absolute.
[5]Evidence Act 1977 (Qld), ss 14C and 14D.
Subdivision 3 creates a qualified privilege for other proceedings, being a proceeding for the trial or sentence of a person or a proceeding relating to a domestic violence order.[6] The privilege is qualified because one or more of the things that cannot be done because of the privilege (the matters quoted in (a), (b) and (c) above) can be done with the leave of the court hearing the proceeding.
[6]Evidence Act 1977 (Qld), s 14E.
Section 14F is central to the present applications. It provides:
“14F Sexual assault counselling privilege
A person can not do any of the following things in connection with the proceeding, other than with the leave of the court hearing the proceeding—
(a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
(b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
(c) otherwise disclose, inspect or copy a protected counselling communication.”
Section 14G governs the procedure for applying for leave. It provides for notice to be given to each other party to the proceeding and to the counsellor. The written notice must state an application for leave has been made and give a description “of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication)”. If the counselled person is not a party to the proceeding the prosecution must, as soon as practicable, give the counselled person a copy of the notice.
Section 14H sets three preconditions about which the court must be satisfied if leave is to be granted. They are that:[7]
“(a) the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and
(b) other documents or evidence concerning the matters to which the communication relates are not available; and
(c) the public interest in admitting the communication into evidence substantially outweighs the public interest in—
(i) preserving the confidentiality of the communication; and
(ii) protecting the counselled person from harm.”
[7]Evidence Act 1977 (Qld), s 14H(1) (emphasis added).
I have highlighted the words “substantial probative value” because this is the requirement for leave that the applicant in each matter was found to have not established. I also have highlighted the words “will have” in s 14H(1). As Fantin DCJ observed in R v JML, the use of “will” rather than “may” means that the statutory condition is not satisfied by the mere possibility that the protected counselling communication has a “substantial probative value”.[8] The use of the word “substantial” indicates that it is not sufficient if the communication has some probative value or will provide some legitimate forensic advantage.
[8]JML at [46].
I respectfully adopt what was said by Fantin DCJ in R v JML about the meaning of “probative” and that the question of whether evidence is probative and has “substantial probative value” can be determined only by an analysis of the facts in issue in the proceeding. Her Honour wrote:[9]
“That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact could rationally affect the assessment of the probabilities. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the Jury’s assessment of the probability of the existence of a fact in issue at the trial. There must be a logical connection between the evidence and the fact in issue.”
[9]At [50] (footnotes omitted).
The words of s 14H(1)(a) serve to emphasise that the question of whether the protected counselling communication has substantial probative value is not to be viewed in isolation. The issue is whether the communication will “by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value”.
The terms of s 14F envisage that an application for leave may be framed as an application for leave to do one or more of the things that fall within the sexual assault counselling privilege. A single application may seek leave to do a number of things and it may be convenient and appropriate for questions of leave to be the subject of staged consideration. For example, an applicant may ask the court in the first instance simply to order the production of a protected counselling communication to the court (as distinct from its disclosure to that party or other parties). At a later stage of the hearing of the application, the applicant may seek leave to use the protected counselling communication for some purpose, such as to formulate cross-examination that suggests that the complainant has made inconsistent statements to a counsellor in relation to the circumstances of the offence or to suggest that the complainant may be unreliable.[10]
[10]KS v Veitch (No 2) (2012) 84 NSWLR 172 at 180 [31] (“Veitch”).
If the application simply seeks an order to compel the production of the protected counselling communication to the court or the first issue in determining an application is whether the court should compel production of the communication to itself, then, according to one view of Subdivision 3, the applicant is required to satisfy the court of each of the three matters stated in s 14H(1) for that limited order to be made. However, for reasons that I will develop, that is not the view I take. Section 14F does not require the court to grant leave to itself before it can order that documents be produced to the court. Section 14F’s prohibition on compelling production to the court without leave applies to “a person”, not to the court.
If at some stage of the hearing of an application for leave, the issue is whether the third condition (the public interest condition) is satisfied, then the court must have regard to the matters listed in s 14H(2). It provides:
“(2) In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters—
(a) the need to encourage victims of sexual assault offences to seek counselling;
(b) that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;
(c) the public interest in ensuring victims of sexual assault offences receive effective counselling;
(d) that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;
(e) whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;
(f) that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;
(g) the extent to which the communication is necessary to enable the accused person to make a full defence;
(h) any other matter the court considers relevant.”
To decide an application for leave under Subdivision 3 “the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted”.[11] Section 14H(4) requires the court to exclude certain persons from the room in which the court is sitting if such an oral statement is made by the counselled person.
[11]Evidence Act 1997 (Qld), s 14H(3).
Subdivision 4 concerns waiver or loss of privilege. Section 14I applies to a counselled person who is 16 years or more, who does not have an impaired capacity for giving consent and who consents to the production of the document or adducing of the evidence relating to a protected counselling communication. As Cash QC DCJ observed, while both the counselled person and counsellors are to be given notice of any application, it is “clear that the privilege inheres in the counselled person”.[12] That is because it is only the counselled person who is permitted, in certain circumstances, to waive the privilege.
[12]R v TRKJ [2020] QDCPR 124 at [28] (“TRKJ”).
Subdivision 5 contains general provisions. Section 14K obliges the court in certain circumstances to satisfy itself that a person applying for leave or objecting to the production of a document or the adducing of evidence is aware of the relevant provisions and has an opportunity to seek legal advice.
Section 14L is headed “Standing of counsellor and counselled person”. It gives rise to a contentious issue about the nature and extent of the standing conferred upon the counselled person or counsellor to appear at a hearing about the granting of leave when there is no question that certain material is a protected counselling communication. It provides:
“14L Standing of counsellor and counselled person
(1) This section applies if—
(a) a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and
(b) the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.
(2) The counselled person or counsellor may appear in the proceeding, including any appeal.”
Section 14M is an important provision that bears upon the issue of whether an implied power exists for the court to consider a protected counselling communication in order to decide whether the three conditions contained in s 14H are satisfied. Section 14M confers an express power on the court to consider a document or evidence “to decide whether it is a protected counselling communication”. Because of its importance, I set out s 14M in full:
“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.”
Section 14N, which is headed “Ancillary orders”, empowers a court to make “any order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person”.
Who should assist the court to decide issues?
Division 2A is not clear about how the court is assisted, if necessary by the judge’s inspection of documents and by submissions from certain parties, about whether particular documents are protected counselling communications and, if so, whether leave should be granted under Subdivision 3.
The legislation does not specify what role, if any, apart from making a statement about likely harm under s 14H(3), the counselled person or the counselled person’s legal representative has at the stage that leave issues arise.
The legislation does not indicate what role the legislature envisaged the prosecution to play at any stage of an application under Subdivision 3. The first issue under s 14H(1) is whether the protected counselling communication will, by itself or having regard to other documents or evidence adduced by the applicant, have “substantial probative value”. This is a matter about which the prosecution, with duties to the court and familiarity with the issues in the pending substantive proceeding, might be expected to assist the court.
I was informed during the hearing that the practice is for the prosecution at the hearing of applications under Subdivision 3 to not make submissions on the issue of whether the protected counselling communication has substantial probative value. There may be reasons for this practice related to the policy by which a protected counselling communication is not to be disclosed without leave, not even to the prosecution. However, the practice of courts not obtaining assistance from prosecutors on the issue of “substantial probative value” presents a practical problem as to how and by whom the court is to be assisted in determining that issue.
Judge Long SC remarked about these matters a year ago in a detailed reserved judgment. The first issue his Honour identified was as follows:[13]
“The first relates to the neutral and largely inactive position taken by the prosecution in the matter, effectively leaving it to the counselled person to be the contradictor of the application, including in respect of all of the issues arising under s 14H, notwithstanding that it was apparent that in addressing those arising under s 14H(1)(a) and (b), reliance was necessarily placed upon information which had to be supplied or communicated by the prosecutor. It may immediately be observed that this prosecution stance, which is commonly encountered as an apparent policy in respect of such applications, is not only an unfortunately unhelpful one but also difficult to reconcile with the legislative scheme and may be seen as linked to the second issue, being a query which arises as to the role that is ascribed for the counselled person in that scheme.”
[13]R v CDJ [2020] QDCPR 115 at [60] (“CDJ”)
The second issue identified by his Honour related to the standing of a counselled person. Judge Long SC noted that s 14L was conditional upon the court deciding “whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication”.[14] Apart from the express limitations upon the standing conferred by s 14L, his Honour observed that the position of the counselled person in respect of providing assistance in respect of the matters under s 14H(1)(a) and (b) “is likely to be substantially inferior to that of the prosecution and to be largely, if not entirely, dependent on information provided by the prosecution.”[15]
[14]At [61] ff.
[15]At [72].
Judge Clare SC recently remarked on the practice where counselled persons are heard on the substantive issues of an application for leave in circumstances in which the statute does not provide for the counselled person to make submissions on those substantive issues. Her Honour addressed the role and function of the Director of Public Prosecutions.[16] After addressing the statutory standing conferred by s 14L on a counselled person to appear in a proceeding if the court is deciding “whether a document or evidence … is a protected counselling communication” and the provision whereby a counselled person may waive the privilege, her Honour continued:[17]
“While the counselled person would otherwise be a beneficiary of the privilege, there are important policy reasons why Parliament would not confer standing for the whole application. Prosecutorial independence is one of the pillars of our criminal justice system. The substantive application for leave is under s 14 H. It focuses on the relevance and weight of evidence and the defence case, as well as the balance of public interest. Assessments of that nature are an integral part of prosecuting. On the other hand, the counselled person is not best placed to make objective submissions on the broader public interest. Moreover, the counselled person is likely to be a key witness in the trial. A process which encouraged the complainant to participate in a forensic analysis of the whole case prior to testifying would be fraught with risk.”
[16]R v MFJ [2021] QChC 34 at [7] (“MFJ”).
[17]At [10].
Because the field of assisting the court on issues relevant to leave has been vacated by the prosecution, the practice has developed of having a legal representative for the counselled person assist the court. I was told at the hearing that the legal representatives of the counselled person obtain the brief of evidence on the condition that, for obvious reasons, it not be disclosed to the counselled person.
It is unsatisfactory that the role of parties in assisting the court on issues that arise in determining whether the three conditions under s 14H have been satisfied (as distinct from the prior question of whether a document or evidence is a protected counselling communication) has developed in such a way, unregulated by statute. Legal representatives for the counselled person perform, in effect, something akin to an amicus curiae function in circumstances in which prosecutors do not assist the court on critical issues about “substantial probative value”, whether other documents or evidence about the matter to which the communication relates are available, and the balance of public interest. Judge Clare SC observed that although Crown prosecutors appear on the record for all applications for leave to access counselling records of their witnesses, she has not known any prosecutor to make submissions:[18]
“They appear indifferent to the outcome. It is perplexing because the question of leave concerns the relevance of evidence, the public interest, and the fairness of the trial they are prosecuting. Traditionally those matters have been considered essential considerations for an independent prosecutor.”
[18]At [5].
A related issue concerns the appearance by legal representatives of the counselled person and the making of submissions by them at the leave stage. Whereas s 14L confers standing on the counselled person or counsellor to appear “in the proceeding, including any appeal” when the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication, there is no equivalent standing provision for the counselled person to appear at some other stage of an application for leave.
The provision in s 14H(3) that in deciding the application the court may consider “a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted” differs in form and substance from s 14L. Section 14L confers an entitlement to appear in the proceeding, including any appeal. It is concerned with the standing of the person. Section 14H(3) is about evidence, not standing. It is about the making of a sworn or unsworn statement.
Section 14L(2), in addressing the issue of standing in a matter in which the court is deciding whether or not a document or evidence “is a protected counselling communication” does not say, in terms, that the counselled person or counsellor may appear in “that part of” the proceeding in which the court is deciding that issue. The literal wording of s 14L(2) permits the argument that the statutory standing conferred by s 14L extends beyond that part of the proceeding. The argument is that the counselled person may appear in the proceeding because at some point the court is required to determine that issue, with the result that the counselled person has standing to appear “in the proceeding”.
This argument begs the question of what is meant by “the proceeding” in s 14L(2). It seems improbable that those words are intended to refer to the principal criminal proceeding, being the trial or the sentence. Those who would argue for an expansive view of the standing conferred by s 14L(2) may suggest that “the proceeding” is the application under Division 2A, not the principal proceeding. On this view, the counselled person’s right to appear extends to all stages of the application for leave.
I do not share that view. Regard to the terms, context and purpose of s 14L suggests that the standing conferred by s 14L(2) is the right to appear at the stage of the proceeding in which the court is deciding whether a document or evidence “is a protected counselling communication”. If the court is not deciding that question, either having not been called upon to decide it or having decided it, then s 14L does not apply.
The terms of s 14L(1)(b) indicate that s 14L is engaged if the court is deciding whether a document or evidence “is a protected counselling communication”. One would need to read words into the section to interpret it as meaning that it applies when the court is deciding whether to grant leave in respect of a protected counselling communication.
An expansive interpretation of s 14L, giving statutory standing at all stages of an application for leave to access, would create a perverse driver. In a case in which there should not be a dispute about whether a document is a protected counselling communication, the creation of a dispute on that issue, requiring the court to decide it, would give the counselled person standing by virtue of s 14L, which would continue after that issue was decided.
The absence of a statutory right to appear at stages of the application for leave when the court is not deciding whether a document or evidence is a protected counselling communication does not necessarily preclude the court granting leave to appear at that stage, if necessary.
The fact that the parties to the substantive criminal proceeding and at trial are the Crown and the accused person (save for the exceptional case of a private prosecution) does not address the appearance of other parties in other proceedings. For example an individual or an entity wishing to assert a claim to legal professional privilege or public interest immunity may seek to be heard and be granted leave to appear by a court. An individual or entity wishing to resist a subpoena may be given leave to appear to argue certain issues, including the conditions upon which documents produced to the court pursuant to the subpoena are available for inspection, copying or use by a party. These kind of appearances occur in various criminal and civil proceedings without the conferral by statute of standing to appear. Instead, the entitlement of a person to appear is governed by principles and practices by which the court allows a person with standing to appear at a stage in the proceeding to enable the court to decide a matter, including the production and use of documents to which claims of privilege are made.
The conferral in s 14L of an express right to appear on the question of whether a document is a protected counselling communication does not signal a legislative intent to displace a power in a court to grant leave to appear as a matter of discretion and in accordance with general principles governing standing at other stages.
If, as I find, s 14L does not confer standing on a counselled person (or a counsellor) to appear at all stages of an application for leave under Subdivision 3, then issues arise as to why a counselled person should be granted leave to appear when questions of leave under s 14H are being decided, and what role they or any other party should play on certain issues.
These issues have a direct bearing upon the processes by which applications for leave are progressed, heard and determined. Without a party appearing to assist the court to decide whether the three conditions in s 14H are satisfied, and to act as a contradictor in that regard, the court may be inclined to inspect the documents in order to decide those questions.
This prompts the question of whether the court has an implied power to inspect the protected counselling communication in deciding issues related to granting leave and, if such a power exists, the circumstances in which it should be exercised. Those issues bear upon the argument of each applicant in this Court that the District Court judge failed to exercise a power conferred under Division 2A and therefore made a jurisdictional error.
By way of preview, the decisions under review are to the effect that any power to inspect should not be routinely exercised in order to decide what material can or should be given to the defendant for use at trial. The decisions also observe that the legislative scheme does not require the court to inspect and consider the document for itself and that the scheme can operate without such a requirement.
I will return to the issue of statutory construction as to whether the court has an implied power to inspect and consider protected counselling communications in the course of deciding an application for leave. Before doing so I consider other aspects of the process of seeking leave.
The staged process
In some cases, the fact that a document or evidence is a protected counselling communication will not be in dispute. In others, there will be a factual inquiry into whether a document or evidence is such a communication. Section 14M(5) makes clear that leave of the court is not required for a person to compel production of documents or to produce documents to the court to enable it to decide whether they are protected counselling communications.
Judge Long SC observed in R v CDJ that in a case in which this issue arises, it may be for the person seeking the enforcement of the “sexual assault counselling privilege” to establish that it applies, as opposed to the need for the person seeking the production or disclosure of a protected counselling communication to satisfy the requirements of s 14H so as to obtain leave.[19] His Honour stated that an understanding of these aspects “may go some way towards explanation of the allowance of what may effectively be an ex-parte procedure as to examination of documents, for that purpose, in s 14M(3)”.[20]
[19]CDJ at [29].
[20]Ibid.
The preliminary determination of whether documents are protected counselling communications (and therefore subject to an absolute or qualified privilege under Division 2A) or not protected counselling communications (and their production able to be compelled by subpoena or other processes by a party without the need for leave) should be a relatively simple matter in terms of procedure.
Once, however, the protected counselling communications are identified, then access is governed by Subdivisions 2 and 3. Having regard to the terms and structure of Division 2A, one view that may be taken is that where the material sought is known to be protected counselling communications, then “the Court has no power to order its production without being satisfied of all of the requirements for leave in s 14H”.[21] Judge Clare SC recently reached this conclusion. It would mean that leave must be obtained in respect of a protected counselling communication before the court can order that the relevant document be produced to the court and before any question of granting leave to use the document arises.
[21]MFJ at [24].
Unsurprisingly in a case like this, a single application is brought for leave to:
(a)subpoena protected counselling communications records and information;
(b)produce to the court, adduce evidence of or otherwise use a protective counselling communication and;
(c)otherwise disclose, inspect or copy a protected counselling communication.
This was the form of application in each of the matters that are the subject of these judicial review proceedings.[22]
[22]TRKJ at [23]; R v Kay [2021] QDCPR 10 at [1] (“Kay”).
The application in such a case is directed only towards material that is a protected counselling communication, rather than being an application to subpoena certain contents on a file (including protected counselling communications) and insofar as leave is required for leave to subpoena a protected counselling communication, for leave to be granted.
In a case in which the application is limited to protected counselling communications, the court still may be called upon to decide whether some documents on a file or some parts of a document are a protected counselling communication. However, where there is no such contest a practical issue arises as to how the court proceeds to determine whether each of the conditions stated in s 14H is satisfied.
A first step may be for the court to compel a person to produce the documents to the court to enable the efficient and just determination by the court of the part of the application that concerns use of a protected counselling communication. However, one view of Division 2A is that the court must be satisfied of each of the three conditions in s 14H before even that is done.
It is difficult to see how the court can address the issues of “substantial probative value”, non-availability via other documents or evidence, and public interest under s 14H, without allowing limited access to a party or parties so as to enable the court to be informed about those matters. The countervailing argument is that allowing even limited access at an early stage of the application for leave undermines the purpose of Division 2A. The argument is that access should be severely restricted, including access by the court itself to the documents, and that the relevant parties and the court must do the best they can without being able to inspect the documents.
Different views may be open about the practice of allowing some initial limited access to protected counselling communications so as to facilitate the efficient and just determination of an application for leave.
The District Court judge in these matters was not the first or the last experienced judge to draw attention to the difficulties associated with Division 2A. After referring to s 14L, his Honour stated:[23]
“The provision is perhaps emblematic of larger difficulties presented by the drafting of Division 2A. I have encountered considerable difficulty in attempting to take the words of the statute and come to some coherent approach that resolves the important issues raised on an application like the present while also remaining true to the legislation. The legislation is, in my view, close to unworkable.”
I agree with those observations.
[23]TRKJ at [32] (emphasis added).
Does an implied power exist for the court to consider the documents at the leave stage?
Unlike s 14M, which confers an express power on the court to consider a document in the context of deciding whether it is a protected counselling communication, s 14H and the other provisions of Subdivision 3 do not confer an express power on the court to consider the document to decide whether to grant leave. This raises the question of whether such a power is implied.
Comparable legislation
One argument against such a power being implied is that the Queensland Act did not adopt the same words as s 299B of the comparable New South Wales legislation which provides:[24]
“If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence.”
[24]Criminal Procedure Act 1986 (NSW), s 299B(1).
Despite these words appearing in a section headed “Determining if there is a protected confidence” (being practically an identical heading to the heading of s 14M of the Queensland Act), the words of s 299B(1) of the New South Wales Act have been interpreted as not being confined to an application in which the court is determining if there is a protected confidence. This is because the heading to the New South Wales section does not form part of the Act. Also, s 299B(1) applies “if a question arises under this Division relating to a document or evidence”. In Rohan v R[25] these words were said to apply to more than the question of whether there is a protected confidence. Other questions might include whether there was “substantial probative value”.
[25]Rohan at [54].
The differences between s 14M(2) of the Queensland Act and s 299B of the New South Wales Act have been discussed in decisions of the District Court of Queensland.[26]
[26]CDJ at [18]-[21]; TRKJ at [37]-[39]; MFJ at [19]-[21].
In summary, unlike the New South Wales legislation, as interpreted, the express power conferred by the Queensland legislation on the court to consider a document or evidence is for the purpose of deciding the question of whether a document or evidence is a “protected counselling communication”.
The existence of a power to inspect and its use
This gives rise to an issue of statutory construction. Does the existence of an express power to consider documents in order to decide whether they are protected counselling communications necessarily imply the absence of a power in the court to inspect documents for other purposes?
The issue of statutory construction concerns the existence of a power, not the circumstances in which and the frequency with which it might be used. Those issues raise different concerns.
In R v CDJ Long SC DCJ rejected the view that upon the making of an application for leave it becomes necessary for the court “to embark upon an examination of the material to determine not just whether the claim for privilege is to be allowed but also the leave issue”.[27] The stringent test to be applied in respect of access to protected counselling communications did not require the court to examine the material to determine itself whether it had a forensic purpose for the applicant and satisfied the requirements of s 14H.[28]
[27]CDJ at [35].
[28]At [48].
Adams J in NAR v PPC1 wrote that the issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called “the statutory inquiries”.[29] The practical reality was said to be that “almost invariably, the documents have to be examined”. However, in Rohan v R Hulme J (with whom Hoeben CJ at CL and Walton J agreed) stated that the observation of Adams J did not commend itself to the other members of the court and that Hoeben CJ at CL had noted in NAR v PPC1 that the issue did not arise for consideration in that matter.[30]
[29](2013) 224 A Crim R 535 at [4]; [2013] NSWCCA 25 at [4].
[30]Rohan at [62].
These observations relate to the anticipated frequency with which a power to consider documents may be exercised by the court in order to determine the question of granting leave. They do not relate to the prior question of whether the court has power to itself consider a document in order to decide the question of leave.
The decision in R v LFC
The issue of whether such a power exists under Queensland law was considered by Williamson QC DCJ in R v LFC.[31] The practical issue that arose in that matter was whether the court was obliged to obtain and consider the protected counselling communication in an application for leave to take one, or all, of the steps prohibited by s 14F of the Act.[32] Judge Williamson QC agreed with observations by other judges that the court is under “no obligation to trawl the PCC material to determine whether, and to what extent, it contains information that satisfies the requirements of s 14H(1) of the Act”.[33] However, this was not because the court lacked power to inspect and consider the documents. His Honour observed that s 14H contained no express statement purporting to preclude the court from reviewing the protected counselling communication in the determination of an application for leave.[34] His Honour also concluded that, as a matter of statutory interpretation, there was no implied limitation on the court doing so.
[31][2021] QDCPR 60 (“LFC”).
[32]At [22].
[33]At [27].
[34]At [30].
His Honour had regard to a number of matters in reaching that conclusion. One was the general principle that a grant of power to a court should be construed in accordance with ordinary principles and given its ordinary meaning unless there is something to indicate to the contrary. His Honour applied that principle in asking whether there was something in the statutory context or a necessary implication from the Act to indicate that, in exercising its power to determine an application for leave under Subdivision 3, the court was not authorised to consider the documents.[35] Having had regard to the absence in s 14H of any limitation on the material that the court might consider, and having regard to the subject matters addressed in s 14H(1), particularly the issue of “substantial probative value”, his Honour concluded that the subject matter, scope and purpose of the legislation did not support the view that the court is precluded from reviewing the material that is the subject of an application for leave.[36] I agree, with respect, with this view.
[35]At [28]-[33].
[36]At [33].
Judge Williamson QC also noted that the Act provided that in deciding the matter mentioned in s 14H(1)(c) the court must have regard to “any other matter the court considers relevant”.[37] The scope of this provision was wide enough to permit consideration of the material that is the subject of the application for leave.
[37]At [34]-[35] citing Evidence Act 1977 (Qld), s 14H(2)(h).
The existence of an implied power to consider and inspect documents for the purpose of determining an application for leave was not displaced by the provisions of s 14M, being one of a number of general provisions which prescribed the procedure to determine “an anterior question to that considered under s 14H(1), namely whether a counselled person has a valid claim of privilege”.[38] Section 14M creates procedures to ensure that a challenge to a claim of privilege can be properly determined while simultaneously protecting the confidentiality of the material in that process. So understood, s 14M could not be regarded as a “contrary indicator” that the court lacks a power to inspect in determining an application for leave.[39] I also respectfully agree with this view.
[38]At [37].
[39]Ibid.
Judge Williamson QC gave some additional reasons to not imply a limitation on the court’s power to inspect documents in determining an application for leave. They included the fact that, in determining a claim of privilege under the procedure provided by s 14M, the court might acquire knowledge of the protected counselling communications. If the claim to privilege was upheld and the court’s attention turned to the application for leave to compel the disclosure of that material, what, if anything, was the court to do with the knowledge gained under s 14M?[40] I am not persuaded that this complexity necessitates the protected counselling communication material being taken into account by virtue of s 14H(2)(h) at the leave stage. The fact that material may need to be inspected and considered by a judge in determining a claim of privilege does not mean that regard must be had to it for the purpose of a related but different application, being the application for leave. If regard should not be had to the material for the purpose of deciding the application for leave then the judge should disregard it or, if that is not possible, have another judge decide the leave application.
[40]At [39].
More generally, the present issue of statutory interpretation should not depend upon an assumption that in deciding a question of leave the judge already will have inspected and considered the material in deciding a question under s 14M. The presence or absence of an implied power to inspect in the course of determining an application for leave under s 14H should not depend on whether there has been an anterior determination under s 14M in which the court may (not must) consider a document or evidence in order to decide whether it is a protected counselling communication.
Therefore, I have a reservation about one aspect of the reasons given by Williamson QC DCJ as to why a limitation on inspection should not be read into the grant of power conferred by s 14H to decide an application for leave. His Honour was, however, correct to conclude that there is not an implied limitation on the court’s power to inspect and consider protected counselling communications in deciding a question of leave under s 14H.
Comparable practices of inspecting documents in the absence of an express power
The provisions of Division 2A should not be viewed through the lens of practices and procedures that apply in respect of other claims of privilege. Division 2A creates a new statutory form of privilege with procedures governing the determination of whether a document or evidence is a “protected counselling communication” and applications for leave to do things that otherwise would be precluded by s 14F. That said, practices that have been developed by courts to resolve questions of privilege and qualifications upon privileges form part of the background against which provisions like Division 2A are enacted.
The privilege that exists under s 14F is qualified. The qualification exists for an important purpose. It is not self-evident that a court should be deprived of the power to inspect relevant documents in order to decide whether the qualification is engaged.
An analogy may be found in respect of qualifications upon a privilege such as legal professional privilege. In some situations it may be argued that material which is prima facie the subject of that privilege does not attract the privilege because, for example, the communication was for an improper or illegal purpose.[41] In determining whether a claim for legal professional privilege should be upheld in such a situation the court may be able to determine the relevant question without having regard to the documents themselves. However, in some cases the contents of the documents will enable the court to better determine whether the privilege does not apply because a qualification to the privilege is engaged. These issues give rise to complex procedural issues in the context of legal professional privilege.[42]
[41]Fletcher & Ors v Fortress Credit Corporation (Australia) II Pty Limited & Ors [2014] QSC 303.
[42]At [54]-[58].
The need, on occasions, for a court to itself inspect documents that are the subject of a claim for privilege does not mean that the inspection of documents always is required. It does not mean that inspection becomes a matter of routine.
In the separate context of claims to public interest immunity, inspection by the court of the documents may be “a very useful procedure for the court to enable resolution of any doubts as to the legitimacy of the claim … and also to assist it with the balancing process”.[43] But the power of the court to inspect is “not to be exercised lightly or as a matter of course”.[44]
[43]JD Heydon, Cross on Evidence, Lexis Advance, [27165].
[44]Ibid.
Is an implied power consistent with the subject matter or purpose of the provision?
The question of whether an implied power exists to inspect and consider the documents for the purpose of deciding the question of leave is addressed on the assumption that any such power will be exercised judicially and for a proper purpose. Any implied power would not be properly exercised for the purpose of curing a deficiency in proof of one or more of the three conditions.
In my view, such a power is consistent with the subject matter and purpose of the legislation. The implied power is not excluded by necessary implication. The purpose of the legislation is likely to be served, not undermined, by an implied power to inspect and consider documents for the purpose of deciding an application for leave. There may be occasional cases in which the evidence before the court and the submissions made on the question of leave give rise to finely balanced considerations. An example would be where the extrinsic material gives rise to a persuasive argument that the protected counselling communications will have “substantial probative value”, but the court has some lingering reservations about that question. In such a case it seems legitimate and constructive for the court to inspect the documents in order to confirm that they contain the evidence that the extrinsic material strongly suggests they contain.
Another example would be a case in which parties assisting the court at the leave stage acknowledge that the protected counselling communications have probative value but do not acknowledge that they have substantial probative value. In such a case the assessment of whether material has “substantial probative value” as distinct from “probative value” may be a matter about which minds may reasonably differ. The purpose of the legislation may be advanced by permitting a judge to inspect the material so as to reach an independent and more informed view on that difficult question of evaluation. In other cases, the judge may be content to rely upon an assessment of the extrinsic evidence, submissions and the views of a party’s legal representative that, while the material has probative value, it does not have “substantial probative value”.
A similar position may apply where the lawyer for a party who is familiar with the documents and the issues in the case expresses the view that they have “substantial probative value” but acknowledges that reasonable views may differ on that question of degree.
It is possible to imagine some circumstances in which there is a strong case, based on the extrinsic material and the submissions, that the material has a substantial probative value, but in which the judge wishes to inspect the relevant documents in order to be completely satisfied of that fact, or to undertake the difficult balancing exercise under s 14H(1)(c) in deciding whether the public interest in admitting the communication into evidence “substantially outweighs” the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm.
An interpretation that allows, rather than compels, a judge hearing an application for leave to consider the contents of the protected counselling communications is compatible with the human rights of counselled persons, accused persons and other individuals whose human rights are protected by the HRA.
I conclude that the judge did not err in not referring to the HRA in circumstances in which no reliance was placed upon that Act and reliance upon it would not have required a judge to adopt a different interpretation to the one that he did.
Because I have concluded that the applicant’s reliance upon the HRA is misplaced it is unnecessary to address how similar issues have been resolved in different contexts. These include arguments that similar provisions encroach on the court’s obligation to conduct a fair trial.[69] They also include the decisions of the Supreme Court of Canada in R v O’Connor[70] and in R v Mills.[71] In short, those decisions found that a requirement for a defendant to show relevance or necessity in the interests of justice (including probative value) was compatible with human rights and that it was possible for a judge to consider competing factors without looking at the documents. However, those decisions arose in respect of different provisions and in the Canadian human rights context. The applicant’s reliance upon the HRA does not disclose any error by the judge, making it unnecessary to engage in a comparative law analysis.
[69]Veitch.
[70][1995] 4 SCR 411.
[71][1999] 3 SCR 668.
The judge was correct to interpret the Act as not requiring a court in deciding an application under s 14H to itself routinely consider the protected counselling communications. The purpose of the provisions is to strike a certain balance between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications. The legislation neither expressly nor by implication compels courts to routinely consider for themselves protected counselling communications in order to hear and determine applications for leave under s 14H.
The workability of the legislation
In the course of discussing the legislation and some difficulties about its practical operation, I have identified matters of concern that have been raised by a number of District Court judges. These include the practice by which prosecutors appear in applications for leave under Subdivision 3, but then do not assist the court on issues such as whether the relevant material has “substantial probative value”. The role of assisting the court on that issue has fallen upon the legal representatives of counselled persons, who apparently are provided with the brief of evidence for that purpose.
Significant difficulties confront parties and judges in applications under Division 2A. The circumstances under which the legal representatives for a party may be granted leave to access material simply in order to assist the court deserve urgent attention by the authorities. I should record that District Court judges have remarked favourably about the assistance that they have obtained from legal representatives of the counselled person, who typically are briefed by the Women’s Legal Service. District Court judges also have remarked favourably about the quality of the assistance they have obtained from counsel for applicants in particular cases.
It is not the function of the Supreme Court to make policy recommendations about resourcing and the roles that parties should play in order to make the current law more workable. Nor is it the Court’s function to suggest amendments to clarify the role of prosecutors, counselled persons or other parties or to make the law fit for purpose.
This judgment has found that, as a matter of statutory interpretation, an implied power exists in a court hearing an application for leave under Subdivision 3 to consider documents if it is necessary and appropriate to do so in order to hear and determine the application. The Supreme Court’s function in these proceedings was to decide whether such a power exists. The Court’s function is not to draft a practice manual about the circumstances in which that power should be exercised as a matter of discretion.
The judge whose decisions were reviewed in this matter, like other judges of the District Court, was correct, with respect, to dispel an assumption that a judge hearing an application for leave should routinely inspect and consider the documents in order to decide the question of leave pursuant to s 14H.
Neither the terms nor the purpose of the provisions suggest that the implied power to inspect documents for the purpose of deciding an application for leave should be exercised lightly or as a matter of course.
In some cases, however, it will be necessary for a judge to examine the material in order to confirm or falsify a provisional conclusion that has been reached on the basis of extrinsic materials and submissions as to whether the conditions in s 14H have been satisfied. If a judge considers that it is necessary and appropriate to do so in order to determine the application, then the judge faces a difficult task. The problem is not so much one of “drawing the judicial officer into the arena”[72] in making judgments about issues such as whether evidence has “substantial probative value” or balancing public interests. It is the practical difficulty of doing so in circumstances in which the judicial officer, unlike the prosecutor or the legal representatives for the parties, has an incomplete understanding of the issues and other evidence that is available to either the prosecution or the defence.
[72]CDJ at [48].
It is possible to imagine clear cases in which it is neither necessary nor appropriate for a judge to inspect the relevant documents in deciding an application for leave, as distinct from the antecedent question of whether certain documents constitute protected counselling communications. One can imagine a case in which the applicant is easily able to surmount the threshold in s 14H(1)(a), making it unnecessary for the court itself to inspect the material. It may be a rare case in which, for example, a complainant tells someone “I told my therapist that I was sexually assaulted by X, not by the defendant”. In such a case, there would be a strong argument that a communication which identified the offender as someone other than the accused, being a communication years before a complaint to police about the defendant, has substantial probative value in a case in which identification is an issue. In such a case, if the extrinsic material made out a sufficiently strong case that protected counselling communications recorded such a matter, or there was an acknowledgement that they did, it would not be necessary or appropriate for the judge to inspect the documents to determine the issue under s 14H(1)(a).
Other cases may be more evenly balanced, where the extrinsic material and submissions provide strong grounds for the judge to be satisfied that the protected counselling communications will have substantial probative value but the judge decides, as a matter of caution, to inspect the documents. In some cases, having decided that an application satisfies the conditions prescribed by s 14H, it may be necessary and appropriate to inspect the documents in order to frame precise orders as to the documents or parts of documents to which access is to be given, to whom access is to be given and the conditions upon which access is given.
The circumstances in which it will be necessary or appropriate to exercise a power in the court to itself inspect and consider documents cannot be detailed and catalogued. The exercise of the power depends upon a discretionary assessment in the circumstances of the particular case.
What is tolerably clear, however, is that the power to inspect at the leave stage is not to be exercised as a matter of routine. As has been said by District Court judges on more than one occasion, the court is not required to trawl through protected counselling communications because the possibility exists that it might find something of probative value or even substantial probative value. The power is not to be exercised to fill deficiencies in proof that a communication, by itself or having regard to other documents or evidence adduced by the applicant, will have substantial probative value. It should not be exercised to satisfy curiosity or indulge speculation that something important may be turned up.
To exercise the power in such a fashion would be to fail to recognise the shift that the creation of a statutory sexual assault counselling privilege was intended to achieve. Division 2A enacted demanding thresholds for a person to compel production, to produce, to adduce or to use a protected counselling communication. Routine inspection by judges of protected counselling communications in circumstances in which it is neither necessary nor appropriate to do so has the potential to weaken one of the policy objectives of the legislation and to involve the court in a task that it is not well-adapted to performing without assistance from an informed party.
While inspection by judges of the material should not be a matter of routine, there will be cases in which inspection is necessary and appropriate. Doing so may be consistent with the objectives of Division 2A. It may be necessary in a difficult case to resolve a finely balanced assessment of whether material has substantial probative value, not simply some probative value. The informed determination of that issue advances the interests of justice and the public interest in securing a fair trial for the accused. It should be recalled that securing a fair trial for an accused is one of the objectives of the statutory scheme.
There may be occasions in which it is necessary and appropriate for the court to inspect the documents in order to undertake the balancing exercise contemplated by s 14H(1)(c). In a particular case the court may consider it necessary and appropriate to inspect the counselling communication in order to make a more informed decision about the harm that the counselled person is likely to suffer if the application is granted and, if the court is satisfied in terms of s 14H(1)(c), to decide what may be done in formulating an order granting leave so as to minimise such harm.
In many other applications for leave it will be possible to determine the application without the judge inspecting the material.
Whatever perceptions exist about the disposition or reluctance of some judges to inspect documents for the purpose of deciding applications for leave, all judges face common practical and procedural difficulties in applications of this kind. Legal representatives of counselled persons have had roles and responsibilities thrust upon them by which they assist judges in deciding leave questions, including questions about “substantial probative value” about which prosecutors provide no assistance to the judges. The appearance of legal representatives of counselled persons at the leave stage is a matter of the court’s discretion rather than statutory standing.
Experienced District Court judges have remarked about the assistance that they require to determine applications for leave. Inadequate thought seems to have been given when the legislation was drafted as to who might assist the judge to make difficult decisions and the process by which access would be granted to legal representatives to enable them to assist the court. These policy issues require consideration of the processes by which a party’s legal representative is to be briefed with material to make submissions and provide assistance to the court on issues relating to “substantial probative value” and the balancing of public interests. Without such assistance the court is left in a difficult position in deciding whether to grant leave under s 14H.
There should be a workable process by which parties who are best placed to assist the court to decide issues of leave are given access, on suitable terms, to the material that will enable them to assist the court. Such a process depends, in part, upon such a party being given the resources required to assist the court.
Enough experienced judges of the District Court have identified problems associated with the drafting and workability of the provisions to make these matters the subject of urgent attention by government, prosecuting authorities and policy makers.
It is in the interests of persons facing trial on serious charges, counselled persons and others to make the law and practices more workable than they presently are.
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