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In April 2009, an innovative pilot project initiated by Women's Legal Services (WLS) brought Blake Dawson, Clayton Utz and Freehills together with the Office of the Director of Public Prosecutions NSW (ODPP) and the NSW Bar Association to assist in keeping the records of sexual assault victims confidential when their private files are subpoenaed for use in trials.
The Sexual Assault Communications Pro Bono Referrals Project has met a real gap in unmet legal need as Nicolas Cowdery, NSW Director of Public Prosecutions (DPP) explained in April, "Victims are rarely in a position to argue privilege and the ODPP, who act on behalf the state, cannot give legal advice to the victim."
Since February 2009 there have been 19 cases referred from the DPP for assistance and WLS has assisted in a further seven privilege matters outside the pilot. This has occurred at committal hearing and before and during trial. Alicia Jillard, solicitor at WLS who is managing the project said, "The firms and Louise Goodchild, of the NSW Bar have made invaluable contributions to the project. On one occasion Brian Ferrari of counsel spent a whole week in court acting pro bono on behalf of a complainant." The pro bono effort has been great and the complainants have really appreciated the support.
Following a sexual assault, many victims seek assistance from counsellors, psychologists and other health professionals. If victims perceive those discussions may not remain confidential, but instead may be shown to the perpetrator of the assault or his or her lawyer, it could deter them from seeking the help they need.
Under the current legislation, a privilege exists to protect a sexual assault victim from the harm that may be caused if his or her records are revealed as well as to safeguard the broader public interest in maintaining the integrity of counselling. For the privilege to be maintained, the holder of the records must be aware that the documents contain "protected confidences" and object to production. Without objection there is a risk that the sexual assault victim's confidential records will be disclosed.
The project is highlighting the problems with the privilege as it currently stands. The results of the pilot will inform the law reform debate regarding the sexual assault communications privilege both in NSW and in relation to the Commonwealth Model Uniform Evidence Bill. All those involved in the project are also calling for permanent funding to assist complainants to assert the privilege in all sexual assault cases.
Case studies
The DPP referred an urgent matter to the pilot group: the trial was due to start on that day and the Defence had served a notice of their intention to adduce evidence of a protected confidence in a psychiatrist’s records. The DPP then referred the matter to WLS by phone so we could advise the client and establish if she wished to maintain privilege. We confirmed, late in the day, that the client objected to adduction.
As neither WLS nor the firms could send a solicitor the next day, WLS drafted a letter to the court advising of an intention to object and requesting an adjournment on the basis of inadequate notice. Time was of the essence, if the privilege issue was not dealt with promptly the trial faced a further two to three month delay of the trial. The DPP solicitor mentioned the matter that day and the Judge adjourned it for two days to allow for the objection.
The next day WLS succeeded in finding a firm who could take the matter on at such short notice. The following day the firm, instructing counsel, appeared on behalf of the complainant. It was also discovered that a lot of other privileged materials had been produced on subpoena without objection, in other words, confidential material had slipped through the cracks. The representatives of the complainant managed, to the extent possible, to cure this error as the Judge ordered all of the psychiatrists records to be kept out and limited the material to be adduced from the GP’s records. This meant that the complainant would not be cross-examined in relation to the confidential communications between her and her psychiatrist.
The DPP referred a sexual assault complainant to the pilot scheme regarding a claim of privilege. WLS accepted the referral at short notice and instructed counsel to appear pro bono to object to production of records subpoenaed by Defence from a sexual assault unit based in a hospital. The hospital did not send a representative to court and did not object to production, the sexual assault service told us they believed she had waived privilege verbally. The complainant said she had not waived privilege. In any case, consent to waive the privilege is subject to strict requirements in the NSW Criminal Procedure Act and it must be in writing.
At the mention we sought and were granted leave to appear on behalf of the complainant for the purpose of objecting to production of the material returned on subpoena. The Judge inspected the material for the purpose of ruling on the objection and granted leave for the complainant’s representatives to inspect it as well. Neither the Defence nor the Crown (who have duties of disclosure) had access.
Following argument by counsel for the complainant (who had seen the records) and counsel for the Accused (who hadn’t seen them), the Judge made an order restricting production for inspection to all but a single expert certificate contained in the records. The client was very happy with this outcome, however she now has reservations about opening up to a counsellor again knowing that it can be used in court or subpoenaed.
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