Applicant Seeks Leave for Inspection of Documents
The applicant sought leave under s 14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect, copy and use protected counselling communications. The judge did not inspect the documents in determining whether to grant leave. The Court, in determining 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, relied upon the judge's interpretation of the Evidence Act 1977 (Qld).
Facts:
The applicant 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 Act 1977 (Qld) to access “protected counselling communications”. The application in District Court proceeding 357 of 2019 was dismissed on 18 December 2020. The applicant sought leave under s 14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect, copy and use protected counselling communications. The application in District Court proceeding 332 of 2019 was dismissed on 5 February 2021. The learned District Court judge declined to inspect the documents to decide the issues presented by s 14H, particularly whether the protected counselling communications, by themselves or having regard to other evidence, had “substantial probative value”.
Each applicant seeks to engage the Court’s supervisory jurisdiction over inferior courts and tribunals. Orders were sought in the nature of certiorari to quash the decision to dismiss the application and to remit the matter for reconsideration according to law. 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.
The grounds of opposition provide that the 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; 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 the 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.
Issues:
I. Whether or not 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.
II. Whether or not the failure to inspect the documents amounted to a constructive failure to exercise jurisdiction, a misapprehension of power or was otherwise a jurisdictional error.
III. Whether or not 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).
Applicable law:
District Court of Queensland Act 1967 (Qld), s 29 - where a 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.
Evidence Act 1977 (Qld), Part 2, Division 2A s 14H - sets out as preconditions which the court must first be satisfied before granting a leave:
“(a) the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and
(b) other documents or evidence concerning the matters to which the communication relates are not available; and
(c) the public interest in admitting the communication into evidence substantially outweighs the public interest in—
(i) preserving the confidentiality of the communication; and
(ii) protecting the counselled person from harm.”
Human Rights Act 2019 (Qld) - obliged the judge to interpret the relevant provisions of the Evidence Act in a way that is “compatible with human rights”.
KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 84 NSWLR 172 - provides that 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.
Fletcher & Ors v Fortress Credit Corporation (Australia) II Pty Limited & Ors [2014] QSC 303 - held that 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.
NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25 - provided that issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called “the statutory inquiries”.
PRS v Crime and Corruption Commission [2019] QSC 83 - where it is unnecessary to discuss the different procedures whereby criminal proceedings may be commenced.
R v CDJ [2020] QDCPR 115 - 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”.
R v JML [2019] QDCPR 23 - observed that 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”.
R v Kay [2021] QDCPR 10 - the form of application in each of the matters that are the subject of these judicial review proceedings.
R v MFJ [2021] QChC 34 - addressed the role and function of the Director of Public Prosecutions.
R v TRKJ [2020] QDCPR 124 - observed that 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”.
Analysis:
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”. 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. In determining a claim of privilege under the procedure provided by s 14M, the court might acquire knowledge of the protected counselling communications. 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 consider a document or evidence in order to decide whether it is a protected counselling communication.
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 Act does not state that the court must consider the protected counselling communication in deciding whether to grant leave under s 14H. Since 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.
The Attorney-General submitted 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”. 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 HRA 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.
Conclusion:
There is no implied limitation on the court’s power to inspect and consider protected counselling communications in deciding a question of leave under s 14H. 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.” 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. The application is dismissed.
