Criminal Trial Courts Bench Book — Sexual assault trials — procedural matters

In sexual assault trials, there are special provisions associated with the production, and admissibility, of counselling communications involving victims, or alleged victims, of sexual assault. These are found in Ch 6, Pt 5, Div 2 of the Criminal Procedure Act 1986 “Sexual assault communications privilege”. It is important to consider how the specific terms of the legislation apply in the circumstances of an individual case; counsel also have a responsibility to assist in this regard: R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156 at [13].

Generally, a person in possession of such material cannot be compelled to produce it in trials, sentence proceedings, committal proceedings or proceedings relating to bail: ss 297, 298.

The purpose of the privilege is to limit the disclosure of a broad range of counselling communications in criminal proceedings at the earliest point possible to encourage victims of sexual assault to seek professional assistance: KS v Veitch (No 2) (2012) 84 NSWLR 172 at [34]; R v Bonanno; ex parte Protected Confider at [14].

It is important to note the following:

See also “Sexual assault communications privilege” at [9-000]–[9-600] — in the Sexual Assault Trials Handbook for further discussion about the history of the provisions, case law and requirements; and I Nash, “Use of the sexual assault communications privilege in sexual assault trials” (2015) 27(3) JOB 21.

A “protected confidence” is defined in s 296(1) as “a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.” The definition of a “counselling communication” is broad. Such communications may be protected even if they were made before the relevant sexual assault offence occurred, or if the relevant communication was not made in connection with a sexual assault offence or any condition arising from a sexual assault offence: s 296(2). In KS v Veitch (No 2) (2012) 84 NSWLR 172 at [18], Basten JA observed that one explanation for expanding the concept of a protected confidence in the way done by s 296(2) was that Parliament wanted to avoid sexual assault victims being discouraged from reporting offences if that course might result in revealing other unrelated disclosures during counselling sessions.

Under s 296(4), the “counselling communication” must be made in confidence:

“Harm” in s 296(4)(a) is defined in s 295(1) to include “actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)”.

The counselling does not necessarily have to relate to harm suffered as a result of the sexual assault offence charged or any sexual assault offence: KS v Veitch (No 2) at [18]–[19]. Noting the potential for conflict between the “expansive provisions of s 296(2)” and the definition of “counselling communication” in s 296(4), Basten JA (Harrison J agreeing) observed that the broad construction of s 296(2) “might have greater force if it covered counselling for any condition, including disabilities, rather than “harm”, which implies damage to which one has been subjected by another”: at [19].

A person who “counsels” for the purposes of s 296 has “undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and listens to and gives verbal or other support or encouragement to the other person, or advises, gives therapy to or treats the other person, whether or not for fee or reward”: s 296(5).

However, the fact a person has qualifications as a counsellor does not result in the inevitable conclusion that their relationship with the victim, and communications made as a result of that relationship, attracts the operation of the privilege. It is important in an individual case to consider whether the person was acting as a counsellor by, for example, providing support, advice, therapy or treatment. For example, in ER v Khan [2015] NSWCCA 230, Joint Investigation Response Team and FACS officers holding counselling qualifications were performing investigative functions and were not acting as “counsellors” to the complainant when the relevant communications were made. In that circumstance, the communications were found not to be protected under s 296: ER v Khan at [86], [95].

Protected confidence documents cannot be subpoenaed or produced in, or in connection with, any criminal proceedings or adduced as evidence in criminal proceedings except with leave: s 298(2). If leave to issue a subpoena is not sought, a court may nevertheless disregard the irregularity and consider the documents in determining whether access should be granted: KS v Veitch (No 2) at [29].

As a preliminary issue, if it appears a protected confider (usually the victim) may have grounds to make an application under Div 2, the court must satisfy itself that the victim is aware of the protections in Div 2 and is given a reasonable opportunity to seek legal advice: s 299.

The onus of proving a particular communication is privileged rests on the person asserting the privilege: ER v Khan [2015] NSWCCA 230 at [84]. A claim must be supported by focused and specific evidence (as is the case when a claim of client legal privilege is made): ER v Khan at [102]. When there is no evidence directly relevant to characterising the documents the subject of a claim, it may be necessary for the court to examine each document and base a determination on whether the document is a protected confidence and counselling communication from the nature and/or contents of each: s 299B(1); KS v Veitch (No 2) at [28] per Basten JA; ER v Khan at [97], [104]; Rohan v R [2018] NSWCCA 89 at [58]. To that end, a judge may compel the production of documents to enable determination of the question of leave to issue a subpoena: Rohan v R [2018] NSWCCA 89 at [58]. Whether it was intended that the requirements of s  299B could be readily applied when an application for leave to issue a subpoena was being determined, when there would normally be no documents available for examination, was the subject of comment by Beech-Jones J in KS v Veitch (No 2) at [85], and a matter about which RA Hulme J (Hoeben CJ at CL agreeing) expressed reservations in Rohan v R at [59]–[60] and [67].

An application for leave under Div 2 cannot be granted unless the court is satisfied, pursuant to s 299D(1):

As to the operation and ambit of s 299D(1) see KS v Veitch (No 2) at [30]–[38]. The issues in s 299D cannot be considered without examining the documents or having sufficient information to make the correct statutory inquiries. A decision concerning whether or not to issue a subpoena cannot be made until the court has considered the matters in s 299D: R v Bonanno; ex parte Protected Confider at [12].

The concept of “substantial probative value” in s 299D(1)(a) is concerned with material that is admissible: KS v Veitch (No 2) at [37]. When determining whether subpoenaed material has substantial probative value, the court should examine each document in question and not approach the task by looking at the material in its totality or globally: PPC v Williams [2013] NSWCCA 286 at [67], [69].

In determining whether the public interest in preserving confidentiality is substantially outweighed by the public interest in admitting evidence of substantial probative value under s 299D(1)(c), the non-exhaustive list of matters in s  299D(2) must be taken into account. This involves a balancing exercise of the matters listed. In KS v Veitch (No 2) the court held, with reference to s  299D(1)(c), that the public purpose of encouraging victims of sexual assault to seek professional help will be undermined if confidentiality is too readily overridden by other public interests, where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, usually by casting doubt on the complainant’s veracity or reliability, militates in favour of disclosure where it could give rise to a doubt as to the accused’s guilt: KS v Veitch (No 2) at [34].

Consistent with usual principles, if the documents do not come within Div 2 of the Act, the party seeking to have the documents produced must, nevertheless, have a legitimate forensic purpose justifying their production: see Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; R v Saleam (1989) 16 NSWLR 14 at 17–18; Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 681. A “fishing” expedition cannot be allowed: Alister v The Queen (1984) 154 CLR 404 at 414.

Where leave is granted to issue a subpoena there is no subsequent leave requirement on production in answer to that subpoena: KS v Veitch (No 2) (2012) 84 NSWLR 172 at [23]; NAR v PPC1 [2013] NSWCCA 25 at [74]; PPC v Stylianou [2018] NSWCCA 300 at [12], [15]–[16]. Nor is there a separate leave requirement for a party seeking access to the material produced. In PPC v Stylianou, at [18]–[19], the court, after considering the statutory scheme in Div 2, concluded that the District Court had a separate power to grant or withhold access to documents produced on subpoena and that such a power was sourced in the court’s implied powers to do what is necessary to enable it to act effectively within its jurisdiction. The court’s control over access, long recognised as a necessary part of litigation procedure, and common law principles relating to the inspection of documents subpoenaed in connection with criminal proceedings were expressly preserved by s 306(2): PPC v Stylianou at [20].

Access cannot be granted to a party (other than a protected confider) or the parties legal representative until the court is satisfied the preconditions in s 299D(1) have been satisfied: PPC v Williams [2013] NSWCCA 286 at [93].

Granting leave for the subpoena does not mean that access to the material produced automatically follows: PPC v Stylianou at [19]–[22]. The court’s power to grant access to documents containing protected confidences is circumscribed by s 299B(3) which requires satisfaction of one of the two identified conditions: PPC v Stylianou at [21]. That is, the documents must not be disclosed unless the court determines the document or evidence does not record a protected confidence or that leave has been granted under Div 2 in respect of the document and disclosing the document would be consistent with that leave. Satisfying a condition in s 299B(3) is a necessary but not sufficient requirement for access to subpoenaed material under s 298(2): PPC v Stylianou at [21]–[22].

To determine the question of access, the court may have to examine some or all of the subpoenaed documents and address the matters in s 299D(1), or any other matters the court would ordinarily take into account, to enable determination of that issue: PPC v Stylianou at [22]. That therefore requires consideration of whether the documents or evidence have substantial probative value. See [5-520] above.

The restrictions on admissibility in s 294CB (formerly s 293), which provides that evidence of a complainant’s sexual experience is inadmissible, engages s 299D(1) and is therefore relevant to determining whether access should be granted: KS v Veitch (No 2) at [37]; NAR v PPC1 at [29]; PPC v Williams at [86]–[87], [90]. It is directly relevant to the question of whether the material has substantial probative value: PPC v Williams at [94].

A victim (a principal protected confider) may consent to the production of a protected confidence: s 300(1). For the consent to be effective it must be in writing and expressly relate to the production of a document or adducing of evidence that is privileged: s 300(2). Such a consent amounts to an agreement for both parties to view the material: NAR v PPC1 [2013] NSWCCA 25 at [53]. However, making a police statement indicating a preparedness to give the evidence contained in that statement, or which permits police to access medical records, does not amount to express consent for the purposes of s 300: NAR v PPC1 at [52]; JWM v R [2014] NSWCCA 248 at [110].

Under s 302 the court has powers to make ancillary orders with respect to the disclosure of protected confidences. However, the preconditions in s 299D(1) must be satisfied before making orders under s 302: PPC v Williams at [90]–[95].