DOCUMENTS – REQUESTS TO PRODUCE – where the applicant is the
complainant regarding
child sexual offences allegedly committed by the first
Source
Original judgment source is linked above.
Catchwords
EVIDENCE – ADDUCING EVIDENCE –DOCUMENTS – REQUESTS TO PRODUCE – where the applicant is thecomplainant regardingchild sexual offences allegedly committed by the firstrespondent – where the first respondent applied to the District Courtforleave under s 14G Evidence Act 1977 (Qld) for a subpoena to be issued toa counsellor to obtain records about the applicant – where the applicantsubmits that theCourt needs to consider each document containing a protectedcounselling communications in order to be satisfied that it will havesubstantial probative value and satisfy the public interest test under s 14HEvidence Act 1977 (Qld) – whether the Court needs to consider eachdocument containing a protected counselling communication to be satisfied thatit will have substantial probative value and satisfy the public interesttestADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – GROUNDS FORCERTIORARI TO QUASH – EXCESS OR WANT OF JURISDICTION– PARTICULAR
MATTERS WHERE NO DEFECT OF JURISDICTION – where the applicant is the
complainant regarding child sexual
offences allegedly committed by the first
respondent – where the first respondent applied to the District Court for
leave under
s 14G Evidence Act 1977 (Qld) for a subpoena to be issued to
a counsellor to obtain records about the applicant – where the Court
granted leave for
the issue of the subpoena – where the applicant claims
that the judge granted leave in error of jurisdiction because the judge
was not
satisfied to the appropriate standard regarding whether the protected
counselling communications will have substantial probative
value, particularly
in circumstances where the judge had not considered the material – whether
leave was granted in excess
of jurisdiction
Evidence Act 1977 (Qld), s
14F, s 14H,
Acts Interpretation Act 1954 (Qld), s 4, s 32C
KS v Veitch (No
2) (2012) 84 NSWLR 172
[2012] NSWCCA 266, cited
MH v HJ (2023) 15
QR 449
[2023] QSC 176, approved
R v JML [2019] QDCPR 23,
considered
R v TJ [2023] QDCPR 21, considered
R v TRKJ (No 2)
[2023] QDC 231, approved
SZTAL v Minister for Immigration and Border
Protection [2017] HCA 34
(2017) 262 CLR 362, applied
TRKJ v Director of Public
Prosecutions (2021) 9 QR 472
[2023] QSC 297, followed
Judgment (16 paragraphs)
[1]
The application is dismissed.
Unless any party seeks to be further heard on the question of costs, pursuant to s 49 of the Judicial Review Act each party is to bear their own costs of the application.
[13] With the judge recording in a footnote at this point: "As is the expression of part of the test for any grant of leave, pursuant to s 103ZH of the Evidence Act 1977, to depart from the restriction on questions and evidence concerning the sexual activities of complainants as to sexual offences and which appears to require some certainty of knowledge of the specifically identified evidence to be admitted."
[26]Plaintiff M70/2011 v Minister for Immigration and Citizenship[2011] HCA 32; (2011) 244 CLR 144, [57] (French CJ); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 207 ALR 12, [37]-[38] (Gummow and Hayne JJ).
[41] [2023] QDCPR 22. However, it appears that the citation here should actually be to Judge Long SC's decision in R v TJ, at [44].
[16]
[45] Currently Amended Practice Direction Number 5 of 2021, issued 29 May 2024, superseding the original Practice Direction Number 5 of 2021, issued 11 June 2021.
[22] The proper construction and application of s 14H(1)(a) is central to the issues for determination on this application. It is a provision that has vexed judges responsible for determining SACP leave applications ever since the provisions were first introduced in 2017.
[23] An early common problem encountered by many judges dealing with applications for leave under s 14G of the Act arose from a literal reading of the legislation as it stood when first enacted. Section 14H(1)(a) requires the court to be satisfied that the PCC the subject of the application "will...have substantial probative value". However, in circumstances where s 14F prohibited a person from doing of a range of things with respect to a PCC without the court's leave, and where the legislation did not provide any express power for the court to inspect a document containing a PCC to determine whether to grant leave, how could the court satisfy itself of that matter?
[24] Different approaches were taken to this problem. Some judges took the view that, in the absence of an express power to inspect documents containing the PCC, the court had an implied power to do so. Others took a different view and decided that the court had no such power and was simply to decide the leave question without inspecting the documents but having regard to the matters in s 14H(1)(a), which included considering the nature of the PCC, the circumstances in which it was made and what any document recording the communication would likely contain.
[25] The matter was brought to a head in TRKJ v Director of Public Prosecutions[2021] QSC 297; (2021) 9 QR 472 (TRKJ). In that case, Applegarth J held that the court had an implied power to inspect the PCC in order to decide whether to grant leave under s 14H, and the qualified privilege in s 14F did not apply to prohibit a court from doing so as the court was not "a person". His Honour also considered that the court had a similar implied power to order production of documents to itself in an appropriate case for the purpose of deciding questions of leave, but that such a course was not required as a matter of routine.
[26] Subsequently, and seemingly in a deliberate legislative intervention in advance of an impending appeal in the case of MH v HJ[2023] QSC 176; , where the validity of relevant SACP provisions and Applegarth J's conclusions in were to be challenged, s 14H was amended by the (Qld), which inserted ss 14H(2A) and (2B). Section 14H(2A) now expressly provides the court with powers to do what Applegarth J found was implied by the legislation.
[35] The second respondent concurred with the submissions made on behalf of the applicant.
[36] At the commencement of the hearing before Judge Long SC, counsel for the first respondent informed his Honour that the application initially sought leave to issue a subpoena and then a second stage would deal with the use of the material yielded by the subpoena. Counsel then advised the judge that a draft order had been prepared to that effect. After the judge indicated that, irrespective of any agreement as to the orders to be made, he would still need to receive and consider the material relied on in support of the application, the parties and the counselled person each formally read their material. Thereafter, the judge interrogated counsel for the parties and the counselled person as to the basis for the orders sought.
[37] In doing so, it appears from the hearing transcript that early on the judge obliquely raised whether there was a need for the court to consider making an order for production of the counselling records under s 14H(2A) of the Act for the purposes of determining the first respondent's application. In response to that query, counsel for the first respondent stated that he was not pressing for such an order "...in light of the counselled person's position and an acceptance that the draft order proposed would be appropriate in these circumstances."
[38] Later on, the judge asked counsel for the first respondent whether, in light of the counselled person's apparent concession as to substantial probative value, whether it was equally open for the first respondent to also now seek leave to inspect the records that would be produced by the counsellor in due course. Ultimately, after further discussion, counsel conceded that he had not contemplated seeking a grant of leave in that respect at the first stage of the hearing of the application and in any event the first respondent was not presently pressing for such an order to be made.
[39] Counsel then confirmed that the first respondent would be content with only the lawyers for the applicant having access to the documents when they were produced in response to the subpoena, so that they could then make submissions to the court about their use in closed court at the next stage of the hearing of the application. However, after the judge queried how the court might sensibly make the necessary determination of substantial probative value at the next stage of the hearing in the absence of hearing submissions from the parties, counsel modified his position and submitted that perhaps the lawyers for the first respondent might have access to the documents to make submissions about them, with the first respondent being removed from the process and the contents of the documents not being revealed to him.
[27] The purpose and effect of this amendment to s 14H is identified in the Explanatory Note for the relevant Bill which states:[1]
[40] Thereafter, at the commencement of the oral submissions made on behalf of the applicant, the judge asked her counsel whether the position she was taking with respect to conceding the substantial probative value of evidence of preliminary complaint was based on his Honour's decision in R v TJ [2023] QDCPR 21. In that case, the judge had dealt with a similar leave application and had concluded that counselling records in respect of a complainant would contain evidence of preliminary complaint, which might be important to any meaningful understanding of the emergence of the complaint made against the defendant, and thus his Honour was satisfied that the counselling records would have substantial probative value. Counsel for the applicant confirmed that she was adopting a similar approach.
[41] Counsel for the applicant then went on to address the issue of whether, in light of her concession as to substantial probative value, leave could also be sought in respect of the use of the documents that would be produced pursuant to the subpoena, submitting: