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Legislative Assembly for the ACT: 2003 Week 3 Hansard (23 October) . . Page.. 4060 ..

MS TUCKER

The problem still arises in practice. In 1997 the Canadian Department of Justice investigated the effects in actual cases and commented:

... individual judges are still left to their own personal understandings of these issues in interpreting the facts presented to them. ... Although the legislation tries to exclude evidence that would allow the jury to dismiss the complainant's versions of events on the basis of myths and stereotypes, these myths and stereotypes still appear to be operative in the minds of many judges. In other words, judges appear to be admitting evidence of such trifling probative value that it is difficult to contemplate any other basis for their interpretation of how this evidence is even relevant. It seems apparent that until judges are more carefully educated as to why certain "myths"exist, and how they might affect juries, that they will continue to admit any evidence they feel may have some link to the issue before the court.

We will see how this provision is used, and it would be useful for the government to monitor this.

So to the counsellors' notes provisions. The two main arguments for seeing counsellors' notes as relevant evidence are generally: firstly, for the complainant it can be used to establish that they sought assistance, thus boosting the credibility of their claim; and, secondly, for the accused there may be something disclosed in the counselling session that indicates that the circumstances were not as are now being described in court.

The two main arguments against the availability of the notes are that, firstly, a therapeutic relationship is only valuable as far as it is safe emotionally and mentally. It is hard to imagine a less safe circumstance than for the person who assaulted you to be able to trawl through the notes on your exploration of your pain, grief and the harm suffered. That that could happen undermines the safety.

Secondly, what is said and what is noted down by the counsellor in a counselling relationship is not actually part of the event that allegedly occurred. A professional counsellor might be regarded as an expert witness and their credibility can be questioned on the basis of their experience, perhaps training and so on, but this does not need to extend to the notes taken in the safety of that relationship.

This bill does not go as far as extending the equivalent of legal professional privilege to counselling notes. That may in fact better represent their relationship, but it is not the approach taken here.

Feedback from services for victims of sexual assault in Victoria, which seems to have similar legislation regarding counselling notes, is that there are still problems in that it is still distressing for the women as the notes are still being read by the magistrate; thus it is a breach of the confidentiality of notes and still a breach of the counselling relationship.

It also creates a lengthy system, makes it a two-step process and extends the length of trials. (Extension of time granted.) However, the services, considering the interests of the people they assist, still believe that this is a step forward, though clearly not perfect.

The scrutiny of bills committee report asks whether the Assembly wishes to "deprive the accused of the chance to test the prosecution evidence or call evidence". I do not on

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