SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE – where the applicant
sought leave
under s 14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect,
Source
Original judgment source is linked above.
Catchwords
EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES –SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE – where the applicantsought leaveunder s 14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect,copy and use protected counselling communications – where the judge didnot inspect thedocuments in determining whether to grant leave – whetheran implied power exists to order the documents be produced to thecourt so thecourt can inspect them on an application for leave to access – whether animplied power exists to inspect thedocuments when deciding an application forleave to access – whether the court is required to inspect the documentswhen decidingan application for leave to accessADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW– JURISDICTIONAL MATTERS – where the applicant soughtleave under s14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect, copyand 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 Act 1977 (Qld), Part 2, Division 2A, ss14A,
Assistance and Other Legislation Amendment Act 2017 (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] NSWCCA 266
(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, considered
Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531,
cited
Judgment (155 paragraphs)
[1]
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
[2]
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
[3]
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)
K Hillard and A J Cousen for the applicant in 3760 of 2021
[18]
K Hillard and N Turner for the applicant in 5632 of 2021
[19]
F Nagorcka and K Blore for the Attorney-General intervening
[20]
Aitken Whyte Lawyers for the applicant in 3760 of 2021
[21]
Chelsea Emery & Associates for the applicant in 5632 of 2021
[22]
Office of the Director of Public Prosecutions for the first respondents
[23]
[1] 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.
[2] 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".
[3] 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.
[4] 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.
[5] Each application is opposed on various grounds. In broad outline, the grounds of opposition are:
[24]
(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;
[25]
(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
[26]
(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.
[27]
[6] 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.
[28]
[7] 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.
[8] 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]
[9] 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.
[14] 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]
[15] 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]
[16] 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]
[17] 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.
[18] 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]
[30]
"(a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
[31]
(b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
[32]
(c) otherwise disclose, inspect or copy a protected counselling communication."
[33]
By force of s 14D, the privilege in connection with those preliminary proceedings is absolute.
[34]
[19] 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.
[20] Section 14F is central to the present applications. It provides:
[35]
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 -
[36]
(a) compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
[37]
(b) produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
[38]
(c) otherwise disclose, inspect or copy a protected counselling communication."
[39]
[21] 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.
[22] Section 14H sets three preconditions about which the court must be satisfied if leave is to be granted. They are that:[7]
[40]
"(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
[41]
(b) other documents or evidence concerning the matters to which the communication relates are not available; and
[42]
(c) the public interest in admitting the communication into evidence substantially outweighs the public interest in -
[43]
(i) preserving the confidentiality of the communication; and
[44]
[23] 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.
[24] 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]
[45]
"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."
[46]
[25] 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".
[26] 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]
[27] 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.
[28] 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:
[47]
"(2) In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters -
[48]
(a) the need to encourage victims of sexual assault offences to seek counselling;
[49]
(b) that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;
[50]
(c) the public interest in ensuring victims of sexual assault offences receive effective counselling;
[51]
(d) that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;
[52]
(e) whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;
[53]
(f) that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;
[54]
(g) the extent to which the communication is necessary to enable the accused person to make a full defence;
[55]
(h) any other matter the court considers relevant."
[56]
[29] 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.
[30] 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.
[31] 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.
[32] 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:
[57]
"14L Standing of counsellor and counselled person
[58]
(a) a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and
[59]
(b) the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.
[60]
(2) The counselled person or counsellor may appear in the proceeding, including any appeal."
[61]
[33] 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:
[62]
"14M Deciding whether document or evidence is protected counselling communication
[63]
(1) This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.
[64]
(2) The court may consider a document or evidence to decide whether it is a protected counselling communication.
[65]
(3) While the court is considering the document or evidence, the court must exclude from the room in which it is sitting -
[66]
(i) the counselled person to whom the document or evidence relates asks that the essential person be excluded; and
[67]
(ii) the court considers excluding the essential person would serve a proper interest of the counselled person.
[68]
(4) The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.
[69]
(5) This section applies despite sections 14D and 14F."
[70]
[34] 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".
[71]
[35] 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.
[36] 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.
[37] 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.
[38] 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.
[39] 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]
[72]
"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."
[73]
[40] 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]
[41] 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]
[74]
"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."
[75]
[42] 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.
[43] 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]
[76]
"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."
[77]
[44] 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.
[45] 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.
[46] 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".
[47] 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.
[48] 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.
[78]
[59] 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.
[60] 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]
[61] 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.
[62] 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.
[63] Unsurprisingly in a case like this, a single application is brought for leave to:
[79]
(a) subpoena protected counselling communications records and information;
[80]
(b) produce to the court, adduce evidence of or otherwise use a protective counselling communication and;
[81]
(c) otherwise disclose, inspect or copy a protected counselling communication.
[82]
This was the form of application in each of the matters that are the subject of these judicial review proceedings.[22]
[83]
[64] 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.
[65] 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.
[66] 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.
[67] 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.
[68] 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.
[69] 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]
[84]
"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."
[85]
Does an implied power exist for the court to consider the documents at the leave stage?
[86]
[70] 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.
[87]
[71] 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]
[88]
"If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence."
[89]
[72] 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".
[73] 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]
[74] 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".
[90]
The existence of a power to inspect and its use
[91]
[75] 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?
[76] 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.
[77] 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]
[78] 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]
[79] 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.
[92]
[80] 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.
[81] 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.
[82] 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". The scope of this provision was wide enough to permit consideration of the material that is the subject of the application for leave.
[93]
Comparable practices of inspecting documents in the absence of an express power
[94]
[87] 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.
[88] 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.
[89] 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]
[90] 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.
[91] 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".
[95]
Is an implied power consistent with the subject matter or purpose of the provision?
[96]
[92] 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.
[93] 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.
[94] 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".
[95] 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.
[97]
Conclusion on the issue of statutory interpretation
[98]
[103] On the point of statutory interpretation, I conclude that the court's power to hear and determine an application for leave under Subdivision 3 of Division 2A includes an implied power to inspect and consider protected counselling communications for the purpose of deciding such an application.
[104] The fact that a power exists for the court to itself inspect documents does not mean that it will be necessary or appropriate for a judge to exercise the power in most cases. It certainly does not mean that the power should be exercised as a matter of routine in applications under Subdivision 3. The implied power does not exist to cure deficiencies in proof by the applicant for a grant of leave.
[105] Its too frequent exercise would undermine a purpose of the provisions which is to restrict access to protected counselling communications.
[106] Leaving aside the dispensation on leave in a case to which s 14M applies, the Parliament provided in s 14F that a person (as distinct from a court) cannot compel production of a protected counselling communication to the court without a grant of leave. However, for reasons which appear below, a court may order that documents be produced to it to enable it to inspect the documents for the purpose of deciding what order, if any, should be made under s 14H. A court should inspect the documents only where it is necessary and appropriate to do so.[45]
[107] To repeat, there is a distinction between the existence of a power in the court to consider and inspect documents for the purpose of determining an application for leave under Subdivision 3 and the circumstances in which it is appropriate to exercise that power.
[99]
The exercise of powers for their intended purpose
[100]
[108] The fact that, in a particular case, the court may have inspected a protected counselling communication and possibly other documents in order to decide under s 14M whether a document or evidence is a "protected counselling communication" may provide the court with some information about a document's contents. However, the court's consideration of the document or other material in that statutory context is for a limited and specific purpose, namely deciding whether the document or evidence is a protected counselling communication. The power conferred by s 14M(2) is not exercised in order to assess issues such as "substantive probative value" or public interest issues that may arise under s 14H.
[109] It may be difficult for a judge to forget what has been read. However, the fact that, in practice, a court may have considered a document for the purpose of deciding a question under s 14M before turning to an application for leave under Subdivision 3 should not blur an important distinction. The express power in s 14M exists to determine whether a particular document is a protected counselling communication. The implied power to consider documents exists in order to hear and determine an application for leave. The implied power to consider documents that are found to be, or that are acknowledged to be, protected counselling communications may be exercised only where the judge assesses that it is necessary and appropriate for the court to consider the documents in order to determine the application for leave under Subdivision 3.
[101]
Can the court order that the documents be produced to it for the purpose of an application for leave under Subdivision 3?
[102]
[110] Section 14M contemplates a process whereby the court may consider documents for the purpose of deciding the threshold question of whether all or some of the documents are protected counselling communications. In order for the court to consider the documents for that purpose the documents need to be produced to the court by some process. Section 14M(5) indicates that the process of producing the documents to the court, either by a compulsory process or voluntarily, to enable it to decide that question is not subject to a leave requirement. This makes sense, otherwise the court would have to have already decided to grant leave under Subdivision 3 before deciding the threshold issue under s 14M
[111] The process of producing documents to the court to enable it to consider them under s 14M(2) is for the limited purpose of deciding if the documents are protected counselling communications. The process cannot be used for the purpose of enabling the court to decide the subsequent question of leave, should that arise. Nor does the fact that documents are before the court and may have been considered by the judge for the purpose of determining the threshold issue under s 14M necessarily imply that the judge must have regard to them for other purposes, particularly for the purpose of deciding leave questions. Moreover, the step contemplated by s 14M(2) of the court considering the documents necessarily involves a different and more limited inquiry. The inquiry is whether the documents are protected counselling communications. That is a fundamentally different inquiry to the types of inquiries contemplated by s 14H in deciding issues about leave.
[112] Section 299B of the comparable New South Wales Act permits a court to order that material be produced to the court to enable it to determine a question relating to the document. The power in s 299B(4) to consider documents has been judicially interpreted as not limited to determining whether documents are protected confidences.[46] The procedures in s 299B that facilitate the court's consideration of a document may be exercised for the purpose of deciding to grant leave to issue a subpoena.[47] Section 299B(4) empowers the court to order production of the documents to itself, and in doing so no question of leave arises.[48]
[113] That approach cannot be automatically applied to the operation of the Queensland legislation. This is because s 14M(2) of the Queensland Act, unlike the broadly comparable s 299B(4) of the NSW Act, only empowers the court to consider the material "to decide whether it is a protected counselling communication". These differences between the Queensland and New South Wales legislation are significant and cannot be ignored.
[103]
The decision under review in proceeding 3760 of 2021
[104]
[121] The applicant in proceeding 3760 of 2021 seeks an order in the nature of certiorari to quash the decision made on 18 December 2020 to dismiss his application that sought leave under Subdivision 3. The judge ordered that the application to access protected counselling communication be dismissed.
[122] The application before the District Court was decided against a background which should be briefly stated. A few weeks before the hearing of the application for leave, consent orders were made, expressed to be pursuant to s 14M(4), which required the production of the documents relating to the complainant's counselling to the court. They were made available to the counselled person's legal representative but to no one else. The counselled person's legal representative prepared a schedule to identify what was said to be protected counselling communications. At the hearing of the application for leave, the counselled person and the applicant both proceeded on the basis that the court should inspect and consider the documents, not just to decide what were protected counselling communications, but also to decide the question of leave pursuant to s 14H.
[123] The judge stated that the barrister for the counselled person made "well-reasoned and helpful submissions" as to why the court should consider the documents in order to assess what in the documents were protected counselling communications and also to decide the issues raised by s 14H. However, the judge was not persuaded to do so.
[124] As to whether it was necessary to consider the documents to decide if they contained protected counselling communications, the judge observed that the applicant expressly sought access only to material described as a protected counselling communication. The application did not require a determination of the antecedent issue of what among the documents were or were not protected counselling communications.
[125] In a substantial reserved decision, the judge explained why the assumption that the court would, at some point, read and assess the documents in order to determine the issues raised under s 14H was misplaced.[51] The assumption was said to rest substantially on the interpretation of the New South Wales legislation and practices that had developed in respect of it.
[126] The judge had regard to the terms and purpose of the Queensland legislation, including extrinsic material about its purpose. His Honour observed that the material "does not suggest an approach that would have the court routinely inspect PCC to decide what can or should be given to the defendant for use in their trial". The legislation was said to set a high bar for a defendant (or other party) who wished to access protected counselling communications.
[105]
"In my view these passages highlight that legislative schemes like the present can be operated without requiring the court to consider the documents for itself. In the absence of a legislative basis for such consideration, it is for an applicant to gather what material they can, disclose so much of their case as they wish, and in this way identify what material is expected to be found in any PCC and why that material should be accessed consistently with the requirements of section 14H. It would generally be insufficient for a defendant to simply say they are not guilty of the offence/s, the credit of the counselled person will be a critical issue at the trial and then leave it to a court to trawl through documents to decide whether or not to grant leave."
[106]
[128] The judge decided for those reasons that in the "present application" before him it was "not appropriate to peruse the documents to decide the issues presented by section 14H".[55]
[129] The judge went on to consider the application for leave under s 14H. The credibility of the complainant was said to be of critical importance in the trial. The applicant had submitted to the judge:[56]
[107]
"If the protected counselling communications reveal inconsistencies in relation to the complainant's version of the offending, or a motive for making a false complaint against the defendant, it is submitted that would be substantially probative. Similarly, if the records revealed that the complainant had suffered from memory problems, nightmares, flashbacks, anxiety attacks or similar, this would also meet the criteria under section 14H(1)(a). Any other matter which undermines the credibility or reliability of the complainant's account in relation to the defendant would have substantial probative value."
[108]
[130] The judge observed that there was no identification of why it should be thought that the protected counselling communications in that case contained any such material. There was no basis for the court to assume that there would be inconsistencies in the complainant's account of the offences. Similarly, there was nothing said about why the material would contain some admissible evidence of a reason for the complainant to make a false allegation against the applicant.
[131] After addressing whether the presence of an inconsistency would necessarily qualify as being of "substantial probative value", the judge concluded that the applicant had not met the criterion of "substantial probative value" under s 14H(1)(a). It followed that it was unnecessary to consider the issues posed under ss14H(1)(b) and (c) or the "statement of harm" offered by the counselled person. The application to access and use the protected counselling communications was dismissed.
[109]
[132] The applicant argues that there was a jurisdictional error in that the judge failed to exercise a power conferred under Division 2A. Expressed in different ways, the judge is said to have misconstrued or misunderstood his power to peruse the documents to decide the issues raised by s 14H, resulting in a constructive failure to exercise jurisdiction.
[133] While the decision which the applicant seeks to quash is the dismissal of his application for leave to access and use the protected counselling communications, the principal focus of the applicant's arguments in this Court are about the prior decision of the judge in deciding that it was not appropriate in the circumstances to peruse the documents to decide the issues in s 14H. I leave to one side whether that decision, which might have had consequences for the judge's ultimate decision to dismiss the application, is amenable to an application in the nature of certiorari under this Court's supervisory jurisdiction (regulated by Part 5 of the Judicial Review Act 1991) or pursuant to s 29 of the District Court of Queensland Act 1967.
[134] It is possible to read some parts of the judge's reasons as suggesting that there was no legislative basis for the judge to consider the documents at the leave stage. However, the judge's decision was to the effect that there was no legislative requirement to consider the documents and that it was not appropriate to do so in the circumstances. The relevant issue was addressed under a heading "Is it necessary or appropriate to consider the documents to decide the issue of leave?". The judge, correctly in my view, eschewed an approach that would have the court "routinely" inspect protected counselling communications to decide what can or should be given to the defendant for use at a trial.
[110]
Was the decision affected by jurisdictional error?
[111]
Did the judge misapprehend that he lacked power to peruse the documents?
[112]
[136] The judge did not fail to exercise the power conferred under Subdivision 3 of Division 2A to hear and determine an application for leave. His Honour exercised that power by dismissing the application.
[137] As to the prior discretionary assessment of whether it was necessary or appropriate to consider the documents in order to decide the application for leave, the judge did not find that, as a matter of interpretation of Subdivision 3, he had no power to inspect the documents. The judge did not decide that he lacked power to peruse the documents which, through a perceived procedural irregularity, were produced to the court under an order expressed to be made pursuant to s 14M(4). Instead, the judge decided that it was not appropriate to exercise that power as a matter of course in an application for leave under Subdivision 3 and that the extrinsic material and submissions before him did not make it appropriate to peruse the documents in the circumstances.
[138] That was a discretionary decision in the course of exercising jurisdiction to hear and determine an application for leave under Subdivision 3, being a decision made prior to deciding the ultimate question of whether leave should be granted.
[113]
Did the Act require the judge to peruse the documents?
[114]
[139] The applicant submits that a judge in determining an application for leave under s 14H is required to review, read and consider the protected counselling communications. He argues that the words "unless the court is satisfied that" in s 14H mandate the court to consider the documents to assess if they are of substantial probative value. According to the applicant, the court could not be satisfied of the requirements of s 14H without viewing the contents of the documents.
[140] An associated argument is that because s 14H requires the court to be satisfied of the relevant matters, an applicant for leave does not bear the onus to in fact show what will be of substantive probative value. Because there is a level of uncertainty on the part of the applicant about what will be relevant to the leave considerations because of the applicant's inability to view the documents before making submissions about leave, the role of the judge is submitted to be to view the materials. The words "by itself" are said to compel the judge to view the documents.
[141] These arguments are not persuasive.
[142] The Act does not state that the court must consider the protected counselling communication in deciding whether to grant leave under s 14H. The Act is silent as to any such consideration. It does not go even so far as s 14M does in stating that the court "may consider" the relevant material. The fact that, as I have found, an implied power exists to consider the material does not mean that the power must be exercised upon the hearing of every application for leave under s 14H.
[143] The words "unless the court is satisfied that" do not require the judge to consider the protected counselling documents, let alone place the court in the role of an inquisitor.
[144] I do not agree that the court could not be satisfied of the requirements of s 14H without viewing those documents, so that viewing the documents is mandatory. Depending on the evidence and submissions, the conditions may be satisfied by extrinsic evidence and inferences about what the counselled person said to the counsellor.
[145] The applicant bears the onus of satisfying the court of each of the three conditions in s 14H(1). Discharging the onus may be difficult for a party without access to the documents. However that is not a justification to displace the proposition that an applicant for leave bears the onus of satisfying the court of the three conditions.
[115]
[149] The applicant also contends that the judge erred in deciding that the counselled person's standing was limited under s 14L. The judge did not so rule. The judge correctly observed that the standing granted by s 14L appeared to be limited to the determination of an issue pursuant to s 14M.[60] His Honour went on to record that the counselled person participated and made submissions, without objection, about all relevant matters, that this participation was "clearly appropriate", and that had it been necessary he would have granted leave to the counselled person to appear and make submissions.[61] This approach to the conferral of statutory standing by s 14L for the determination of whether a document or evidence is a protected counselling communication and the granting of leave to appear at the application for leave under s 14H accords with my view. No error, let alone a jurisdictional error, was made in this regard.
[116]
[150] I should add that for reasons which were helpfully developed by Ms Nagorcka and Mr Blore of counsel who appeared for the Attorney-General for the State of Queensland, intervening, the applicant accepts that he must establish a jurisdictional error in order to obtain an order in the nature of certiorari in this proceeding. It is not sufficient to establish a non-jurisdictional error.
[151] I also had extensive submissions by Ms Hillard who appeared with Ms Cousen and Mr Turner of counsel for the applicants about this Court's jurisdiction. In the light of my analysis of the judge's reasons, the decision to dismiss the application for leave was not affected by jurisdictional error. It is unnecessary to dwell upon the meaning of jurisdictional error or the procedural aspects of an application to obtain an order in the nature of certiorari to quash such a decision.
[117]
[152] The applicant has not shown that the judge misunderstood or misconstrued his powers or failed to exercise a power conferred upon the District Court by Division 2A. The judge assumed that a power existed to peruse the documents but decided that it was neither necessary nor appropriate to exercise the power in order to decide the issues raised by s 14H in the application for leave that he was then considering. The applicant has not shown that the discretionary decision to not peruse the documents was erroneous in point of law. If, however, the applicant had shown that the judge erred in declining to peruse the documents for himself, then that would be an error in exercising the jurisdiction to hear and determine the application for leave. It would not be a jurisdictional error.
[153] Any factual error in deciding the issue of "substantial probative value" would not be a jurisdictional error. Therefore it is unnecessary to review the evidence and arguments about that issue or the correctness of the judge's finding that he was not satisfied about the condition in s 14H(1)(a).
[154] Because the applicant has not demonstrated a jurisdictional error that engages the supervisory jurisdiction of this Court, it is unnecessary to decide other issues that were raised in opposition to the application, including the fragmentation issue, or why the court might decline, as a matter of discretion, to exercise its supervisory jurisdiction.
[155] The application to this Court will be dismissed.
[118]
[156] This decision related to an application for leave to issue a subpoena to compel the production of protected counselling communications, to adduce evidence and use the protected counselling communications and to disclose, inspect and copy the protected counselling communications.
[157] The applicant in that matter invited the judge to consider the material to decide the issues raised by s 14H. For essentially the same reasons given in the earlier matter, the judge declined to do so.
[158] The judge recorded that it would generally be insufficient for a defendant to simply say that they were not guilty of the offence or offences, that the credit of the counselled person will be a critical issue at the trial, and then "leave it to a Court to examine documents to decide whether or not to grant leave".[62] This, with respect, was a correct summation of the purpose and intended operation of Division 2A. Against that background, the judge concluded that it was not appropriate to peruse the documents in order to decide the issues raised by s 14H. Having reached that view, the judge turned to consider the application for leave, addressed the allegations and the applicant's submission that it was "to be expected that the counselled person discussed the allegation with her counsellor" and that it was to be expected that the counselled person also discussed with a counsellor whether she made any preliminary complaints, and if so, to whom. The judge observed that there was nothing in the material before him to support such a conclusion. His Honour went on to observe that:[63]
[119]
"It may be in an appropriate case the defendant would access material that is not PCC, and could demonstrate by inference from that material the existence or likely existence of material that would have substantial probative value. This is not such a case."
[120]
[159] Because the applicant had not demonstrated that the protected counselling communications that were sought in the application "will have substantial probative value" it was unnecessary to consider issues under s 14H(1)(b) or (c). The judge dismissed the application.
[160] The judge's decision to not peruse the documents in order to decide the issues raised by s 14H raises practically identical legal issues to the ones which I have already discussed in deciding proceeding 3760 of 2021. For the same reasons, the applicant in this matter has not demonstrated jurisdictional error or a basis upon which to make an order in the nature of certiorari. The application will be dismissed.
[121]
[161] I will hear the parties, if required, on any issue as to costs. Each application was made in circumstances in which an issue arose as to the existence of an implied power to inspect documents for the purpose of deciding an application under Subdivision 3. The intervention of the Attorney-General indicates that the applications raised important issues about legislation, the construction and operation of which, has presented substantial difficulties, particularly for judges of the District Court of Queensland.
[162] The parties should seek instructions about issues of costs and try, if possible, to agree appropriate orders as to the costs of each application. Failing agreement, I will hear oral submissions about costs on a date to be fixed.
[163] Each applicant complains that the judge failed to have regard to the Human Rights Act 2019 (Qld). The fact that the judge did not refer to the HRA is unsurprising. He was not asked to. In any case, for the reasons that follow, had regard been given to the HRA the interpretation of Division 2A would not have been different.
[164] The Attorney-General, who intervened pursuant to s 50 of the HRA, submits that the HRA was not engaged because s 108(2)(a) of the HRA provides that it "does not affect proceedings commenced or concluded" before the commencement of the HRA. The HRA commenced on 1 January 2020. The indictment in each matter was presented in 2019. It is unnecessary to discuss the different procedures whereby criminal proceedings may be commenced.[64] On any view, the criminal proceeding against each applicant commenced before 1 January 2020.
[165] The Attorney-General further submits that if the HRA applied such that s 48 obliged the judge to interpret the relevant provisions of the Evidence Act in a way that is "compatible with human rights", then the interpretation was "compatible with human rights".
[166] I agree with that submission, making it unnecessary to decide the prior question of whether the HRA was engaged. There is, however, a strong argument that it was not engaged.
[167] As noted, the HRA does not affect proceedings commenced or concluded before its commencement. This is the effect of I note the use of the word "and" between and (b). However, its use simply means that there are two circumstances in which the will not apply according to that transitional provision. The applicant points to the different wording of the relevant transitional provision in Victoria which contains no equivalent to That difference is immaterial. is clear and it is unnecessary to refer to the Explanatory Notes to confirm that the effect of is to not require a court to interpret a law in a way that is compatible with human rights where the proceeding commenced or concluded before the commencement of the .
[124]
[186] 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.
[187] 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.
[188] 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.
[189] 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.
[190] 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.
[125]
[1] District Court of Queensland, Practice Direction Number 5 of 2021: Protected Counselling Communication, 11 June 2021.
[41]Fletcher & Ors v Fortress Credit Corporation (Australia) II Pty Limited & Ors[2014] QSC 303.
[143]
[43] JD Heydon, Cross on Evidence, Lexis Advance, [27165].
[144]
[45] This approach accords with the approach of courts in other contexts where a court will only inspect the documents where it is in doubt on a question of balance or is provisionally in favour of disclosure: see Cross on Evidence at [27165].
[10] 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.
[11] 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.
[12] 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.
[49] 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.
[50] 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.
[51] 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.
[52] 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.
[53] 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.
[54] 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.
[55] 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.
[56] 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.
[57] 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.
[58] 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.
[83] 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.
[84] 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.
[85] 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.
[86] 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.
[96] 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.
[97] It also is possible to imagine cases in which the judge may consider it necessary and appropriate to inspect the material in order to carefully evaluate suggestions that the counselled person is likely to suffer harm if the application is granted and to decide what, if anything, might be done in terms of conditioning the grant of leave to limit the extent of use or to whom a copy of the protected counselling communication is disclosed. For example, depending upon the extent of assistance given to the court by a counselled person's legal representative who is familiar with the material, it may be necessary for the judge in a particular case to inspect and consider the material in order to identify material that is unrelated to the subject offence, the disclosure of which is likely to infringe a reasonable expectation of privacy or cause other harm.
[98] In summary, it is possible to imagine occasional cases where the court's own inspection and consideration of the material will assist the court in a finely-balanced case to determine the question of leave.
[99] The occasional need for a court to inspect documents in a finely-balanced case before deciding whether to grant an application for leave or to decide the conditions upon which leave is granted, supports the existence of an implied power to inspect and consider the documents. Recognition of the power is not inconsistent with the subject matter and purpose of the provisions.
[100] An implied power is not necessarily excluded by the existence of an express power in s 14M(2) to make a different kind of decision in a different context, namely deciding whether a document or evidence is a protected counselling communication.
[101] The absence of an express power to consider documents in the context of deciding an application for leave under a different subdivision is an insufficient basis to conclude that the Parliament intended that a power to consider documents should not exist so as to enable the court, in an appropriate case, to exercise its power to hear and determine an application for leave.
[102] In my view, the court's power to hear and determine an application for leave includes the power to consider the documents in question should the occasion to do so arise. An intention to deprive the court of the opportunity to do so does not arise by necessary implication. An interpretation that does not deprive the court of a power to consider the documents is the interpretation that best achieves the purpose for which the court's power to hear and determine applications was conferred.
[114] It appears that in some applications under the Queensland Act, where the court has ordered the production of material to it and has considered the material under s 14M(2) to decide the threshold question, some judges have taken the pragmatic view that, having considered the material for that purpose, and possibly having allowed a party access to the material to assist the court to determine whether the document is a protected counselling communication, the court may also consider the contents of the material in deciding issues of leave under s 14H.
[115] This may be a pragmatic approach. However, it does not accord with the strict terms of the provisions. As explained above, the court's power to consider documents for the purpose of deciding an issue under s 14M is granted for a limited purpose. The court's consideration of any documents so obtained is for that limited, specific purpose, not to determine if the conditions under s 14H have been satisfied.
[116] If, as I think, the decision in KS v Veitch (No 2) and the power in s 14M(4) to order production to the court of documents for the purpose of deciding issues under s 14M do not authorise a Queensland court to consider the documents for other purposes, then a difficulty seemingly arises. As discussed, viewed in isolation, s 14H does not seem to permit the court to order a person to produce documents to the court unless the three conditions are satisfied. Such an approach would result in an inconvenient and possibly unintended interpretation of Subdivision 3.
[117] A different and purposive interpretation of Subdivision 3 would empower a court to order a protected counselling communication to be produced to it and to be considered by it for the purpose of deciding questions of leave under s 14H. The result would be similar to the approach adopted in Veitch that a court can itself take steps to ensure that it has access to the documents before ruling on an application for leave.[49]
[118] The apparent difficulty that I have identified arises from reading s 14H in isolation. The difficulty is avoided by having regard to the terms of the prohibition in s 14F. The prohibition is on "a person" doing any of the things stated in the section other than with "the leave of the court hearing the proceeding". The words "a person" in their context would not include the court in question. It would be odd for the court to grant leave to itself.
[119] So understood, a court may order production of documents to itself without the necessity of granting itself leave to do so after being satisfied of the three conditions in s 14H. However, such an interpretation simply facilitates the court itself considering the documents in an appropriate case in deciding questions of leave. It does not require the court to order production of protected counselling communications to it and to consider such documents as a matter of routine.
[120] The interpretation permits the court to order that the documents be produced to the court. It does not necessarily mean that the court should then order that the documents be produced to a party or any other person for their use in the absence of a grant of leave under s 14H, at least when that person is not the counselled person. As to that qualification, the primary purpose of a prohibition like s 14F "is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document".[50] Therefore it is arguable that the documents that the court orders to be produced to it for the purpose of deciding a question of leave may be provided by the court to the counselled person. I need not decide that point.
[127] After discussing comments made by Beech-Jones J in Veitch[53] about how the substantial threshold presented by the statutory criteria might be overcome, the judge made the following important observation:[54]
[135] The judge observed that legislative schemes like the present can be operated "without requiring" the court to consider the documents for itself.[58] The judge's conclusion about whether he should peruse the documents was that it was not "appropriate" to do so.
[146] The words "by itself" in s 14H(1)(a) do not displace the onus or compel the court to view the documents as a matter of course. They simply clarify that in some cases the court will be satisfied that the protected counselling communication itself will have substantial probative value. In other cases it will have that quality not by itself, but in conjunction with and "having regard to other documents or evidence produced or adduced by the applicant".
[147] I conclude that the judge did not err in construing the relevant provisions governing applications for leave as able to operate "without requiring the court to consider the documents for itself."[59] The judge was correct to not construe the Act as if it required the court in every application for leave to consider the protected counselling communication for itself.
[148] An incidental point is that because the court is not required in every application to itself consider the documents, the court is not required in exercising jurisdiction under s 14H to order as a matter of course the production of the protected counselling communications documents to the court.
[168] The relevant issue about the engagement or otherwise of the HRA in this case is to identify the relevant "proceeding". If the relevant proceeding is the criminal proceeding, then the Attorney-General is correct in submitting that s 108(2)(a) means that the HRA "does not affect" the proceeding. If, however, the relevant proceeding is the application for leave under s 14H, then that proceeding was commenced in 2020 and would be unaffected by s 108(2)(a). The applicants did not raise this argument and it is unnecessary to decide the point. I will, however, observe that since the HRA does not affect the criminal proceeding, there is a strong argument that it does not affect an application brought pursuant to s 590AA of the Criminal Code in that proceeding.
[169] If, however, the HRA applied to the application for leave to access protected counselling communications then s 48 of the HRA affected the interpretation of the relevant provisions of Division 2A. Section 48(1) of the HRA would have required those provisions, to the extent possible that is consistent with their purpose, to be interpreted in a way that is "compatible with human rights".
[170] The words "compatible with human rights" direct attention to ss 8 and 13 of the HRA.[65] Section 13 states when a human right may be limited. One or more of the factors in s 13(2) may be relevant in deciding whether a limit on a human right is reasonable and "demonstrably justified in a free and democratic society based on human dignity, equality and freedom".
[171] The applicant's submissions acknowledge the existence of competing individual rights under the HRA. Reference was made to the right to a fair hearing in s 31, namely the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. Reference also was made to s 32 which concerns rights in criminal proceedings. They include the right of a person charged with a criminal offence "to examine, or have examined, witnesses against the person".[66] The applicant's submissions also recognise that the HRA includes a right to privacy, particularly the right not to have the person's privacy arbitrarily interfered with.[67]
[172] The applicant's written submissions note that s 13 sets out the considerations of whether a human right stated under the Act may be limited and make the broad and bold contention that there "is no suggestions (sic) s 13 would apply here". I am unable to agree.
[173] The provisions in Division 2A, including s 14H, make apparent that the law seeks to balance rights and interests. Those rights and interests include the privacy interests of complainants and the need to encourage victims of sexual assault offences to seek counselling. They also include the right of an accused to a fair trial, along with the ability to access evidence that may assist in defending proceedings by effectively examining witnesses against the person.
[174] The enactment of Division 2A altered the balance that had previously been struck by the law in facilitating compulsory production of what are now defined as protected counselling communications and in the ability of an accused person to have those communications disclosed, inspected or copied and to adduce evidence of or otherwise use the protected counselling communication. The balance was deliberately shifted by the enactment. The purpose of the enactment in shifting the balance is confirmed by the Explanatory Notes to the 2016 Bill and also emerges from the public interest considerations stated in s 14H(2).
[175] The applicant did not develop any sound argument as to why the limits that the law places upon the rights of an accused are not reasonable and justified in terms of s 13(1) of the HRA and when regard is had to the factors stated in s 13(2).
[176] The applicant does not explain why the purpose of the limitation imposed by Division 2A is inconsistent with a free and democratic society based on human dignity, equality and freedom, including the privacy interests of victims of sexual assault and the need to encourage victims of sexual assault offences to seek counselling.
[177] The purpose of the limitation is to balance interests in preserving the confidentiality of such communications against the rights of an accused person to a fair trial. The legislation does not contain an absolute prohibition on an accused person gaining access to protected counselling communications. It balances rights and interests.
[178] As noted, if s 48 of the HRA applied to the application being decided by the judge then the relevant provisions had to be interpreted, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.
[179] In my view, if the interpretive task was affected by s 48 of the HRA then it would involve a recognition that the relevant provisions balance competing human rights and competing public interests in a way that is compatible with human rights. The judge also was required to apply ordinary principles of statutory interpretation.
[180] In my view, neither s 48 of the HRA nor those principles of statutory interpretation required the judge to adopt interpretations of Division 2A of the kind contended for by each applicant. In particular, they did not support an interpretation which compels a judge hearing an application for leave under s 14H to consider the contents of the protected counselling communications in respect of which access was sought.
[181] For the reasons that I have given, such an interpretation effectively requires words to be read into s 14H or elsewhere in Division 2A. It requires the provisions to be interpreted as if they read "The court in deciding whether to grant leave under s 14H must consider the protected counselling communication". The purpose of the legislation can be achieved without reading those words into the Act. It is not necessary to read such words into the Act. To do so would be to exceed the interpretative function of a court, including the interpretive function imposed by s 48 of the HRA. It would amount to something akin to a legislative function.[68]
[182] 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.
[183] 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.
[184] 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.
[185] 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.
[191] 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.
[192] 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.
[193] 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).
[194] 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.
[195] 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.
[196] 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.
[197] 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.
[198] 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.
[199] 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.
[200] In many other applications for leave it will be possible to determine the application without the judge inspecting the material.
[201] 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.
[202] 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.
[203] 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.
[204] 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.
[205] 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.