Background
SWN was the complainant in a District Court prosecution of CJA for alleged offences, including sexual offences committed between November 2020 and November 2022. During that period, SWN began seeing a counsellor and allegedly disclosed information about CJA. The counsellor contacted police, prompting an investigation. After CJA was charged, he sought leave under the Evidence Act 1977 (Qld) to subpoena SWN’s counselling records from 1 June to 2 December 2022 and later seek permission to use protected counselling communications contained in them.
At the initial hearing, all represented parties—including SWN—agreed that leave to issue the subpoena was appropriate, and SWN conceded that the statutory requirements were satisfied. After the counsellor objected, SWN sought to have the leave order vacated and asked the District Court to inspect the records first under s 14H(2A). The District Court refused. Crowley J dismissed SWN’s judicial-review application, finding no jurisdictional error. SWN appealed, arguing that s 14H required the court to be satisfied that every individual protected counselling communication met the statutory criteria.
The Court’s Holding
The Court of Appeal dismissed the appeal. It held that s 14H focuses on protected counselling communications, not on every individual document that may contain one. A court considering leave to issue a subpoena need not inspect each document or separately determine that every communication within the requested records has substantial probative value. It may reach the required satisfaction through reasonable inferences drawn from the known circumstances and other evidence.
Here, the requested period ran from the commencement of counselling to SWN’s police statement, the counselling occurred during the alleged offending, and the counsellor contacted police because of SWN’s disclosures. Together with SWN’s earlier concessions, those circumstances permitted the District Court to infer that the protected communications expected within the records would have substantial probative value.
The discretionary power in s 14H(2A) to order confidential material produced for judicial inspection does not impose a general requirement that the court examine it before granting subpoena leave. Nor did the decision give CJA unrestricted access: separate leave remains necessary to inspect, disclose, use, or adduce a protected communication, and irrelevant or unprotected material may be restricted or redacted when access is considered.
Key Takeaways
- Section 14H does not require a court deciding whether to authorize a subpoena to inspect every counselling record or assess each document individually.
- Substantial probative value may be established prospectively through extrinsic evidence and reasonable inferences about the communications expected to be contained in the records.
- Leave to issue a subpoena is distinct from leave to inspect, disclose, use, or adduce protected counselling communications after the records are produced.
Why It Matters
The decision clarifies how Queensland courts must apply the qualified privilege for sexual-assault counselling communications at the subpoena stage. The statutory threshold remains deliberately demanding, but it can be met without automatic judicial inspection of confidential records—a process the Court said should be used sparingly to minimize unnecessary disclosure.
The ruling also emphasizes the staged safeguards in the legislation. Authorization to compel production does not itself authorize access or evidentiary use, allowing courts to reassess the statutory balance after the documents are returned and their contents are known.