The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

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Protection of counselling communications

In the process of preparing for a criminal trial, the defence can seek access to relevant documents, no matter whom they belong to. By serving a subpoena on someone who has relevant documents in his or her possession, the defence can compel that person to disclose the documents even if she or he does not want to. Until recently, this process could be applied to records made in the course of a confidential relationship between a victim-complainant and a counsellor with few restrictions, allowing these documents to go to the defence in any sexual offence trial. A subpoena requiring the documents to be produced could be issued provided that the documents were requested "for a bona fide purpose connected with the litigation" (Freckleton 1998: 156). In spite of this requirement, research demonstrates that subpoenas have been served on counselling services when no record of contact with the complainant exists or records of contact are extremely limited (Olle 1999).

In the process of preparing for a criminal trial, the defence can seek access to relevant documents, no matter whom they belong to.

Access to these documents has been considerably restricted in most states and territories, with attempts to limit access beginning in 1997, when NSW first amended the applicable law (Freckleton 1998). It followed earlier Canadian reforms designed to limit access to sexual assault counselling notes (Sheehy 1996; Bronitt and McSherry 1997). Every state and territory except QLD now has specific legislation protecting counselling communications.

The starting points

Each jurisdiction establishes a primary threshold, which an application for disclosure of sexual assault counselling communications must meet for disclosure to be permitted.

In TAS, sexual assault counselling communications cannot be disclosed without the counselled person's consent, and courts do not have the power to order disclosure without that consent. In all other jurisdictions, a court can decide to order disclosure even if the complainant does not agree to it. However, WA has significantly different provisions dealing with disclosure to those of the other jurisdictions. WA law establishes higher thresholds the applicant must meet before a court can order disclosure. It also states that a person cannot be required to produce evidence of counselling communications without the court's permission. A subpoena which is issued without the court's permission is therefore of no legal effect.

In NSW, NT, VIC and WA, sexual assault counselling communications can be disclosed either by court order or with the consent of the complainant. In the NT and VIC, a guardian or appropriate person can consent to disclosure in the place of the victim-complainant if she or he is less than 14 years of age.

In the ACT and SA, sexual assault counselling communications cannot be disclosed in court unless the court orders it. The protection provided by the legislation cannot be waived, even if the complainant and the counsellor agree to the disclosure. Only a court can order the disclosure of a sexual assault counselling communication (though the court must consider the attitude of the counselled person). In NSW and SA sexual assault counselling communications cannot be admitted in pre-trial proceedings in any circumstances.

The criteria a court must consider before making an order for disclosure vary from one jurisdiction to the next. For a court to order disclosure in NSW, NT and VIC, the evidence must have substantial value in proving disputed issues. In the ACT, SA and WA, the party applying for disclosure must demonstrate that they have a legitimate court-related purpose. ACT and SA applicants must show that disclosure would significantly assist their case. In NSW, NT, VIC and WA, the court must not order disclosure if other evidence of similar or greater value in proving disputed facts is available.

Additional issues the court must consider in deciding whether to order disclosure

In TAS, sexual assault counselling communications can only be disclosed with the consent of the complainant. In every other jurisdiction, a court which is considering whether to order disclosure of such information must consider the public interest. The precise nature of the public interest which the court is required to consider varies. For example, in the ACT, SA and WA the court must weigh the public interest in the right to a fair trial against the public interest in confidentiality and potential harm to the confider.

The legislation applies to a wide range of verbal and written communications about or during sexual assault counselling.

Many jurisdictions require consideration of the nature, extent and the likelihood of harm to the complainant if the evidence is disclosed. Some jurisdictions provide additional guidance. For example, in the ACT, SA and WA the court must consider the impact of disclosure on the public interest in ensuring complainants have access to counselling, recognising that effective counselling might depend on confidentiality. WA law also requires the court to consider the public interest in adequate counselling records being kept, recognising the possibility that sexual assault counsellors may limit the notes they keep if those notes may later be disclosed in court (MCCOC 1999). The laws of the ACT and SA also require the court to consider whether the application to have the sexual assault counselling communication disclosed is being made on the basis of discriminatory beliefs or bias.

What information is protected?

The legislation applies to a wide range of verbal and written communications about or during sexual assault counselling. It can apply to things said during counselling as well as to documents such as letters, notes, forms and electronic documents.

The ACT, SA and TAS provide protection for counselling communications that are made in a context giving rise to a duty of confidentiality or reasonable expectation of confidentiality. In these states, the communications must directly relate to assessment of trauma or treatment relating to harm suffered as a result of the sexual offences alleged.14

In the ACT, NSW, NT, VIC and WA, protection can extend to communications made prior to the alleged sexual assault, and is not necessarily limited to communications made specifically in connection with the alleged sexual offence.

Some jurisdictions specify that some documents are exempt from the protection of the legislation. These are usually documents that might conceivably fall within some of the broadly worded definitions of communications protected by law, but which would have been created as potential evidence. The most common examples are records created during a physical examination of the victim-complainant by a medical practitioner or documents created for the purposes of legal proceedings.

In TAS, sexual assault counselling files can only be disclosed with the consent of the complainant, and there are no identified circumstances in which protection can be lost. In every other jurisdiction, the protection from disclosure offered by this legislation can be lost in some circumstances. In most states, where counselling communications provide evidence of serious misconduct (such as fraud, perjury, a civil wrong or a criminal offence), protection from disclosure will be lost.

Court inspection of documents

In most jurisdictions, the legislation specifies that the court can inspect sexual assault counselling communications in order to reach a decision about whether or not to order the disclosure.

In SA, VIC and WA, the court has the discretion to inspect the documents in order to make a decision about whether to order the disclosure. However, in the ACT, SA and WA, the court can only exercise this discretion once it is satisfied that there is a legitimate purpose for the application and (in ACT and SA) an arguable case that disclosure will assist the applicant's case.15 In the ACT and NSW, a court which is ruling on an objection concerning the disclosure of sexual assault counselling communications must inspect the relevant documents once threshold tests have been met.

In the ACT and SA, the law offers guidance as to how the preliminary examination of counselling communications should be carried out. It must take place in the absence of the public, the jury (if there is one), and the parties to the proceeding and their lawyers (unless the court decides otherwise). Information provided as part of examining the evidence must not be communicated to the parties or their lawyers, unless the court decides otherwise. A record of the examination is taken, but it is not made available to the public.

NSW, VIC and WA all provide for notice of an application for disclosure of sexual assault counselling records to be given to the other parties involved in legal proceedings and to the counselled person. The nature of the notice and the people who must be notified vary from state to state.

Ancillary orders

If a court decides to order disclosure of a sexual assault counselling communication, it can make additional orders designed to limit the potential harm to the counselled person. The court's discretion to make orders is wide. For example, a court can order that the court be closed to the public while the evidence is disclosed, that conditions be imposed on the inspection or copying of documents, that the documents be edited or only part of them be disclosed, that publication be suppressed or that information about the identity or contact details of the complainant or other people mentioned in the documents be removed before disclosure.

How does it work in practice?

Cossins argues that the legislation is aimed at preventing sexual assault trials "continuing to be a forum in which the complainant is baited by the defence with untested assertions and innuendo in order to prove her moral unworthiness" (Cossins 1998: 106). As the previous section showed, legislation limiting crossexamination on sexual history has not been as successful as might have been hoped. Although it is believed to have reduced the amount of sexual history evidence being heard in court, much of that evidence is still being permitted. Ironically, however, some writers suggest that the declining capacity of defence counsel to use sexual history evidence following legislative reform may have increased reliance on sexual assault counselling records as "an alternative source of information for undermining the complainant's credibility" (Cossins 1998: 101; Olle 1999).

Advocates of protection for sexual assault counselling records argue that allowing the defence to force disclosure of these documents and use them in court has a number of damaging effects.

First and foremost, they argue that counselling is not designed to investigate allegations of crime. Counselling is not designed to produce evidence and is not relevant to a sexual offence trial.

Second, if counsellors are compelled to provide their records as evidence, people who have been sexually assaulted will be discouraged from reporting sexual offences and seeking counselling after sexual assault. Disclosure of sexual assault counselling records adds an additional fear of revictimisation to the already substantial barriers to reporting, prosecution and conviction of sexual offences (Cossins 1998). The impacts on victim-complainants' decisions about seeking or continuing with counselling have led to this being seen as "a public health issue" (MCCOC 1999). Disclosure can also expose personal information about the victim- complainant to the person who is alleged to have assaulted him or her, placing the victim-complainant in potential physical danger. (Cossins 1998).

Existing legislation such as that in VIC has been criticised because it leaves room for multiple interpretations of when counselling records have "substantial relevance" to facts in issue in a trial (Olle 1999). Sexual assault services have argued for strict, clear criteria explaining what could make a counselling file relevant. Sexual assault services have also criticised the absence of legal rights for counsellors to give evidence where their files are disclosed in court (something few jurisdictions allow), and for complainants to challenge the contents of their counselling files if they are produced in court (Olle 1999).

Analysis of Victorian cases has borne out some of these concerns. In particular, even before the legislation was enacted, some judges insisted that the defence make a case for the relevance of the evidence prior to the judge inspecting files themselves. However, some judges have interpreted the legislation as requiring them to examine the file in order to decide whether the evidence is admissible. The result is that the counselling service is effectively required to make a case as to why the documents are not relevant to the proceedings (Olle 1999). Even where counselling files are not disclosed to the defence, inspection by officers of the court in itself violates the confidentiality of the counselling relationship (Olle 1999).

The Victorian Law Reform Commission has found that the legislation has not prevented subpoenas being issued. Rather, Centres against Sexual Assault have been compelled to pay lawyers to oppose subpoenas requesting their files at considerable expense (VLRC 2004). This is a burden which private counsellors may simply not be able to meet. Indeed, concerns have also been raised about the level of awareness of the legislation among private counsellors who may be unaware of the provisions and the protection they provide (VLRC 2004).

However, despite its limitations, one study found that "with rigorous adherence to the existing provisions, constant testing of meanings and unstinting elaboration of the stated legislative intent the [Victorian] Act has the capacity to protect files from defence" (Olle 1999: 84).

In the last 30 years, every Australian jurisdiction has extended the kinds of "sexual intercourse" or "sexual penetration" which can amount to rape or sexual assault.

The only jurisdiction to bring in legislative changes which would prevent the burden of responding to a subpoena is WA, where a person can only be required to produce a document with the court's agreement. If a subpoena is issued without court agreement in WA, it is of no legal effect.

Footnotes

14 Although they may predate disclosure of a sexual offence to the practitioner: Wilson v Magistrates Court of South Australia and Anor [2004] SASC 297, [49]-[50].

15 Existing decisions have found that this threshold requires the accused to identify evidence that is material and relevant to the defence prior to the court's agreeing to inspect the documents "as opposed to conducting an investigation into matters which might be of assistance to him" R v Liddy (No. 3) [2001} SASC 151. In applying this principle, one judge stated that "trawling" was not a legitimate forensic purpose, and that the legislation posed "an impenetrable barrier against any fishing expedition. There are clearly good policy reasons for doing so." R v P [2003] SADC 160, [25], [28].