Page 3557 - Week 08 - Thursday, 18 August 2011
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remove references to the commonwealth Evidence Act which will no longer apply in the territory on commencement of these reforms.
More substantively though, as other members have mentioned, the bill includes a number of important reforms to assist in reducing the trauma experienced by victims of sexual or violent crimes when they are giving evidence in court. The most significant of these reforms relate to the accessibility and disclosure of the counselling records of sexual assault victims.
Currently, division 4.5 of the act provides an immunity framework for an ACT court to apply when a party seeks to access and disclose the counselling notes of a sexual offence victim in a criminal proceeding. The immunity is absolute in proceedings for the committal of a person for trial, for bail and any other preliminary criminal proceedings. In all other criminal proceedings, for example, a trial, sentencing proceeding, appeal or review, the court must give leave before counselling notes are to be disclosed.
The court may only give leave once two tests have been satisfied. Firstly, the applicant seeking to disclose the notes must identify a legitimate forensic purpose and satisfy the court that there is an arguable case that disclosure would materially assist the applicant in his or her case in the proceeding. Once this threshold test is satisfied, the court inspects the notes and determines leave for disclosure on the basis of a public interest test. It is for the court to weigh a set of factors relevant to the question of whether the public interest in ensuring a fair trial to the accused outweighs the public interest in preserving the confidentiality of the counselling notes.
The policy argument in favour of the immunity is well accepted. Sexual assault counsellors serve a crucial role in the justice system, and it is not unreasonable to assume that, if counselling notes are not confidential, complainants will not seek counselling or will not be entirely frank during counselling sessions. This will reduce the efficacy of the counselling process.
Further, if complainants do not use the services of counsellors, then the likely result will be lower reporting of sexual offences and the withdrawal of complaints. If notes are not protected, sexual assault counselling services may adopt practices such as minimal recordkeeping or the creation of dummy files, both of which inhibit the counselling relationship and militate against the accountability of the counsellor.
It is also argued that records of counselling will have very limited relevance in cases involving allegations of sexual assault. Counsellors argue that sexual assault counselling is concerned with the emotional and psychological responses of the complainant to the assault. As such, the “facts” surrounding the assault are likely not to be discussed, and the exploration of feelings will undermine the forensic reliability of what is recorded.
The bill includes amendments to extend this existing protection for criminal proceedings to civil proceedings. There is no compelling reason why the protections afforded in criminal proceedings should not be extended to civil proceedings. The public interest in encouraging victims of sexual assault to seek counselling exists in both the criminal and civil sphere. Indeed, legislation in New South Wales, South Australia and Victoria provides protection in civil and criminal proceedings. The
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