Page 3553 - Week 08 - Thursday, 18 August 2011
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Association have similar concerns. The scrutiny committee summarised the position. It said, in its report No 40:
The exclusion of a counselling communication might thus have a significant detrimental effect of the ability of a party to prove their case.
The Law Society, in a submission to the government in relation to the exposure draft of the bill, noted that a legitimate forensic purpose must not only be asserted, it must be proved. The society stated:
This creates potentially an insurmountable threshold for gaining access to material that may well be highly probative but the existence and content of which the accused may never learn.
The society also remarked:
Further if the Crown doesn’t know of the existence of the ‘protected confidence’ then their duty of disclosure will not be activated. In any event the Crown’s duty of disclosure is similarly subject to these provisions.
The society concluded:
This additional restriction could prove incredibly prejudicial to defence counsel’s ability to test the credibility, reliability and probative value of the evidence of complainants.
I acknowledge that the purpose of counselling is to assist a victim through a quite significant emotional and psychological event. Issues such as a sexual assault certainly fall into that category, and candour is important in this process. However, the Bar Association makes the point that counselling notes also invariably contain the facts and circumstances of the sexual assault incident and those notes usually are made a very short time after the occurrence of the incident, so the facts, as enunciated, are often the victim’s most accurate recollection of the incident. When the matter comes to court, sometimes 18 months or more later, the ability of the victim to recall the incident with such clarity may be impaired by the passage of time. These matters may be of significant consequence in the delivery of justice for both parties.
We could even have extreme situations. I understand there was a case in which the victim alleged sexual assault by one person when, in fact, the counselling notes revealed a quite different story. The supposed victim actually manufactured the allegations in order to protect not only another person but also herself. Without the benefit of the counselling notes, a gross injustice would have been visited upon the accused.
The outcome of this case was more one of good luck than diligent management. The defence could never have known about the truth contained in the notes, much less their existence in the first place. The defence would have been utterly unable firstly to assert or prove their existence; secondly, to be aware of their contents; and, thirdly, to argue a legitimate forensic purpose. A legitimate forensic purpose that involves the suspected existence of notes or the suspected content of them is hardly a legitimate forensic purpose. I can imagine the court’s response if such arguments were advanced.
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