TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors [2021] QSC 297

Date: 16 November 2021
Court/Tribunal: Supreme Court of Queensland
Judicial Officer/Tribunal Member: Applegarth J
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 25, 31, 32, 50, 108.
Rights Considered: Right to privacy and reputation; Right to a fair hearing; Rights in criminal proceedings.
Other Legislation: Criminal Procedure Act 1986 (NSW) s 299B; District Court of Queensland Act 1967 (Qld) s 29; Evidence Act 1977 (Qld) Pt 2, Div 2A, ss14A, 14B, 14C, 14D, 14E, 14F, 14G, 14H, 14I, 14K, 14L 14M, 14N; Judicial Review Act 1991 (Qld) Pt 5; Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld)
Keywords: Criminal Law and Corrective Services

This case concerned a review of decisions of the District Court to refuse the Applicants (who were each defendants facing charges in that Court) access to counselling communications under section 14H of the Evidence Act 1977 (Qld). The Court considered that the Human Rights Act 2019 (Qld) did not apply and, even if it did, the judge would not have been required to adopt a different interpretation than what they had.

The Court considered it was unnecessary to decide whether the Human Rights Act 2019 (Qld) was engaged but that there was a strong argument it was not engaged: at [166]. This is because the Human Rights Act 2019 (Qld) does not affect proceedings commenced or concluded before its commencement under section 108(2)(a): at [167]. Section 108(2)(a) was considered clear, making it unnecessary to refer to the Explanatory Notes to confirm its effect: at [167].

The Court observed that the identification of the relevant proceeding was relevant because section 108(2)(a) of Human Rights Act 2019 (Qld) would ‘not affect’ the criminal proceeding that started before the Act commenced, while the application for leave under section 14H that was commenced in 2020 would be unaffected by s 108(2)(a): at [168]. This was not ultimately determined.

The Court considered that the provisions in Division 2A, including s 14H, make apparent that the law seeks to balance rights and interests, which include privacy, fair trial and cross-examination: at [173].

The enactment of Division 2A was considered to have deliberately altered the balance previously been struck by the law in facilitating compulsory production of protected counselling communications and in the ability of an accused person to have those communications disclosed, inspected or copied and to use the protected counselling communication, with its purpose confirmed by the Explanatory Notes to the 2016 Bill and the public interest considerations stated in section 14H(2): at [174].

The Court discussed that the purpose is to balance interests in preserving the confidentiality of such communications against the rights of an accused person to a fair trial, with the legislation not containing an absolute prohibition on an accused person gaining access to protected counselling communications but rather balancing rights and interests: at [177].

The Court considered that, if the interpretive task was affected by section 48 of the Human Rights Act 2019 (Qld), 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, and that the judge would also be required to apply ordinary principles of statutory interpretation: at [179]

Section 48 and principles of statutory interpretation were considered not to support an interpretation which compels a judge hearing an application for leave under section 14H to consider the contents of the protected counselling communications in respect of which access was sought: at [180]. Such an interpretation would effectively require words to be read into s 14H or elsewhere in Division 2A which was unnecessary, as the purpose of the legislation can be achieved without reading those words in, and that to do so it would exceed the interpretative function of the court: at [181].

Therefore, 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 Human Rights Act 2019 (Qld): at [182].

It was concluded that the judge did not err in not referring to the Human Rights Act 2019 (Qld) as no reliance was placed upon it and, even in relying upon it, the judge would not have been required to adopt a different interpretation: at [183].

Visit the judgment: TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors [2021] QSC 297