Sexual assault communications privilege
Acknowledgement: The Judicial Commission gratefully acknowledges the assistance of her Honour Judge Sarah Huggett and Jasmine Stanton, Senior Solicitor, Sexual Assault Communications Privilege Service, Legal Aid NSW
[9-000] Legislative reform
In 1997, the Evidence Amendment (Confidential Communications) Act 1997 (NSW) amended the Evidence Act 1995 (commenced 1 January 1998) to protect the counselling communications of sexual assault complainants. It aimed to introduce protections for confidential communications in two ways:
By providing a judicial discretion allowing the courts to exclude evidence of a confidential communication. The exercise of that discretion is to be guided by factors set out in the legislation.
By providing a rebuttable presumption that evidence of a confidential communication made to a counsellor by a victim of sexual assault should not be admitted in evidence. Such material will be admissible only where the court is satisfied that the probative value of the material is so high as to substantially outweigh the public interest in protecting the confidentiality of sexual assault victims in counselling relationships.1
Parliament amended the law in 1999 in response to a narrow interpretation of the sexual assault communications privilege (SACP) by the Court of Criminal Appeal (NSWCCA): see R v Young (1999) 46 NSWLR 681 which held that the privilege did not apply to the production of documents on subpoena. The amendments expanded the scope of records “caught” by the privilege. Further, the SACP provisions were removed from the Evidence Act and incorporated into Pt 5, Div 2 of the Criminal Procedure Act 1986 (NSW).2 The SACP provisions were further amended in 20023 as a result of the decision in R v Lee (2000) 50 NSWLR 289. Lee had held that the privilege was restricted to counselling relationships where expert advice was provided by “persons skilled, by training or experience, in the treatment of mental or emotional disease or trouble”.4 The 2002 amendments were made to ensure that the privilege extended to confidential communications made in connection with counselling provided by counsellors who lacked formal training or qualifications in the diagnosis of psychiatric and/or psychological conditions.5
In December 2010, further reforms strengthened the privilege6 following a pro-bono pilot program run cooperatively by the Women’s Legal Services (NSW), the NSW Bar Association, the Office of the Director of Public Prosecutions, and a number of commercial law firms. The 2010 amendments enhanced victims’ participation in decisions affecting the confidentiality of their counselling and therapeutic records by:
enlarging the standing for a protected confider (ordinarily the complainant) to appear in criminal proceedings or preliminary criminal proceedings if a document is sought to be produced or evidence is sought to be adduced that may disclose a protected confidence: ss 299A; 299C; s 5F(3AA) Criminal Appeal Act 1912.
requiring parties to seek leave from the court to compel (by subpoena or otherwise) production of privileged material: s 298(1)
expanding the factors a court must consider before granting leave to disclose records: s 299D
providing that a court must ensure a protected confider is aware of the relevant provisions of the protections has been given a reasonable opportunity to seek legal advice: s 299
[9-100] Defining a protected confidence
The SACP applies to a “protected confidence” 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”. A “counselling communication” is defined in s 296(4) as a communication:
made in confidence by a person (the “counselled person”) to another person (the “counsellor”) who is counselling the person in relation to any harm the person may have suffered, or
made in confidence to or about the counselled person by the counsellor in the course of that counselling, or
made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or
made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person.
The term “harm” 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)”. Judicial minds have disagreed as to the scope of the term “harm” in s 296(4) and whether harm contemplates causal conduct by another person: see KS v Veitch (No 2) (2012) 84 NSWLR 172.
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(4).
Some examples of protected communications are:
mental health records
drug and alcohol records
financial counsellor record
letters and referrals between health professionals
emails from a school counsellor to a parent or teacher
social worker reports held by Centrelink or Department of Housing.7
Counselling communications may be protected that were made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or were not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence: s 296(2). However note the concerns raised in relation to the temporal reach of this definition expressed in KS v Veitch (No 2) (2012) 84 NSWLR 172 at  and R v Veitch (2013) 16 DCLR (NSW) 181 at .
The SACP limits the disclosure and use of a broad range of counselling communications in criminal, apprehended violence order (AVO) and limited civil proceedings. The SACP recognises the public interest in victims having access to confidential counselling both as a therapeutic response for individual victims and to prevent the disclosure of such records from deterring other complainants from reporting sexual violence: see KS v Veitch (No 2) in which the NSWCCA states while discussing SACP:
The SACP is designed to limit the disclosure of protected confidences at the earliest point possible: for a complainant who has gone to a counsellor to discuss the sexual assault, it is little comfort to her or him if the documents are not to be adduced [used] in evidence at the trial if they have already unnecessarily been disclosed to the defence by an order of the court. The privilege is not just designed to prevent the unnecessary adduction of evidence of protected confidences before a jury, but is designed to prevent the inappropriate subpoena of such confidences in the first place, and then the inappropriate granting of access to them.10
[9-300] Applications for grant of leave
The NSWCCA in PPC v Stylianou  NSWCCA 300 has recently clarified that s 298 creates a requirement for leave at two stages: at the issue of a subpoena that would require the production of a protected confidence, and when adducing evidence of a protected confidence. Section 298(2) does not create a requirement for leave to inspect a document, but provides that if leave has not been given to issue a subpoena, the person named in the subpoena must not produce a document recording a protected confidence to the court: at -.
Section 299D(1) provides that a court cannot grant an application to issue a subpoena to compel production of a counselling communication unless it is satisfied that:
the document or evidence has substantial probative value as evidence in the case. In BJS v R  NSWCCA 123 at , the NSWCCA dismissed an appeal from a decision of the District Court in applying the SACP, agreeing with the trial judge that the probative value of counselling notes in issue was of a very low order and could not be characterised as having “substantial probative value”. In Rohan v R  NSWCCA 89, the NSWCCA agreed with the finding of a District Court judge that counselling records did not have “substantial probative value” for the purposes of s 299D(1)(a). The application for leave under s 298(1) was based upon the prospect that the complainant may have failed to take up an opportunity during counselling to complain about sexual abuse by the applicant. Given such evidence would invoke a warning under s 294 to the effect that absence of complaint does not necessarily indicate a false allegation and that good reasons may exist to explain it, the documents would have no “substantial probative value”.11
other documents or evidence concerning the matters to which the protected confidence relates are not available, and
the public interest in disclosure substantially outweighs the public interest in non-disclosure. In determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the matters listed in s 299D(2).
A decision concerning whether or not to issue a subpoena cannot be made until the court has considered the matters listed in ss 299C and 299D: R v Bonanno; ex parte Protected Confider  NSWCCA 156 at . Non-compliance will result in an error of law and the potential invalidity of the grant of leave to issue a subpoena and the subpoena itself. If left to go unchecked, errors of law can result in a mistrial of the accused and may cause substantial harm to others, including the protected confider. 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 at .
In assessing a claim of privilege, it is necessary to determine whether there existed a “counselling communication” within one of the four categories established by s 296(4).12 The onus is on the applicant to establish that the documents in question were privileged.13
In determining a claim for SACP, s 299B provides that a court may consider both the documents in question and/or evidence about them or their contents and a judge may compel the production of documents in order to determine a question of leave to issue a subpoena under s 298(1).14 Section 299B(4) confers power on the court to make orders that facilitate the task of determining whether sexual assault communications privilege exists. It has been observed in relation to client legal privilege, that a court may make orders allowing evidence to be given in confidence under such conditions as to preserve the claimed privilege.15 Section 299B(4) would similarly permit such a course to be taken when determining a question of sexual assault communications privilege.16 Without evidence that addresses the facts said to found the privilege, the task of a judge will be essentially an interpretative exercise based wholly upon an examination of each document in question.17 It has been found to be an error to approach the task in a global way.18
There is an available discretion under s 299B for a judge to compel the production of documents in order to determine a question of leave to issue a subpoena under s 298(1): Rohan v R at , ; KS v Veitch (No 2) (2012) 84 NSWLR 172 at . Section 299B is relevant “[i]f a question arises under this Division relating to a document or evidence”.
[9-400] Inspection of documents
The SACP will also be relevant when a party seeks access to documents recording protected confidences. Such access can only be granted if leave has been given and disclosing the document is consistent with that leave: s 299B(3). The court may not grant such access “unless” one of the conditions stated in s 299B(3) is satisfied. The court may have to examine the documents to determine whether access should be granted to them. Compliance with s 299B(3) is not however a sufficient or necessary condition to entitle parties to an order granting them access to protected counselling documents: PPC v Stylianou  NSWCCA 300 at .
[9-500] Scope of privilege
The privilege is expansive and applies in all criminal cases, including pre-trial and interlocutory proceedings and AVO proceedings in NSW. It also applies in some civil cases,19 but only where SACP has been upheld in a criminal proceeding and the civil case is about the same or similar acts. SACP does not apply in family law. It generally does not apply in child protection cases.
For a detailed examination of the scope of the SACP provisions and issues arising from its construction, see I Nash, “Use of the sexual assault communications privilege in sexual assault trials” (2015) 27(3) JOB 21.
See also “Sexual assault communications privilege” at [1-895]–[1-899] in the Criminal Trial Courts Bench Book for further discussion.
[9-600] Sexual Assault Communications Privilege Service
The Sexual Assault Communications Privilege Service (SACPS) was established at Legal Aid NSW in late 2011. It provides free legal representation for sexual assault victims in privilege matters in NSW. All sexual assault victims, whether child or adult, who need legal help about the privilege can now access a free lawyer. SACPS lawyers have been specially trained and can go to any criminal court in NSW. SACPS also provides education, legal and policy advice to the health, community and welfare sectors, as well as police and the legal profession, to promote awareness of the privilege.
Legal Aid NSW have produced a Guide for people working in a health or welfare role in NSW who keep confidential client records, which focusses on protections relevant to subpoenas relation to sexual assault communications privilege. 20
1Evidence Amendment (Confidential Communications) Bill 1997, Legislative Council, Debates, 22 October 1997, pp 1129 – 1121.
2See Criminal Procedure Act 1986 (NSW) Pt 5, Div 2, Ch 6, ss 295–306.
3By the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 2002, commenced 22 July 2002.
4ibid at .
5Second Reading Speech, Legislative Assembly, 21 March 2002, p 976.
6Made by Courts and Crimes Legislation Further Amendment Act 2010, commenced 7/12/2010, which inserted new ss 297–299D into the Criminal Procedure Act.
7These examples are given in “Subpoena Survival Guide”, p 26 at http://lacextra.legalaid.nsw.gov.au/PublicationsResourcesService/PublicationImprints/Files/753.pdf, accessed 17 December 2018.
8(2012) 84 NSWLR 172 at .
9ibid at .
10The Hon John Hatzistergos, Second Reading Speech, Courts and Crimes Legislation Further Amendment Bill 2010, NSW Legislative Council, Debates, 24 November 2011.
11ibid at , .
12ER v Khan  NSWCCA 230 at .
13ibid at .
14Rohan v R  NSWCCA 89 at , ; KS v Veitch (No 2) (2012) 84 NSWLR 172 at .
15ER v Khan at ; Kennedy v Wallace (2004) 142 FCR 185.
16ER v Khan at .
17ibid at , .
18PPC v Williams (2013) 238 A Crim R 25 at , .
19The privilege applies to communications which were privileged under SACP in criminal proceedings and the civil proceedings relate to substantially the same issues as the criminal proceedings: Evidence Act 1995 (NSW), s 126H.
20above n 7.