In a sexual offence proceeding, the credibility and reliability of the complainant is often one of the most important aspects of the case for both the prosecution and the defence.
Until a relatively recent change in legislation in the ACT, it was commonplace for lawyers for the accused person to issue subpoenas to counsellors or other mental health professionals used by the complainant, ordinarily with the intention of obtaining evidence of any mental health diagnoses for the complainant that might affect their credibility or reliability, as well as any prior inconsistent statement the complainant may have made about the alleged offending. This kind of material was also commonly obtained by the prosecution.
In 2018, Division 4.4.3 – Sexual and Family Violence offence proceedings – protection of counselling communications was added into the Evidence (Miscellaneous Provisions) Act 1991. This division regulates the process by which ‘counselling communications’ come to be produced to the Court, disclosed to the parties, and ultimately used in the trial. It applies only to proceedings for sexual or family violence offences.
The primary definition of a ‘counselling communication’ is a communication, made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality, by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor.
The definition is in fact broader than this, however it is clear that the main concern of the legislature in passing these laws was to protect the counselling relationship between a complainant and her mental health professional. The reasoning is that if a counsellor discloses confidential communications without safeguards in place, the relationship of trust between a counselled person and a counsellor would be eradicated.
If a document contains material which meets the definition of a counselling communication, it must not be disclosed to the Court in a criminal proceeding without the Court’s leave. In this sense, the material is a ‘protected confidence’. An accused person who wishes to issue a subpoena seeking protected confidences must first make an application to the Court for leave. The complainant is required to be notified about any such application, and has a right to be heard in relation to the application at each step along the way, including to be represented by a lawyer if they wish.
The Court will ordinarily grant leave to issue a subpoena if the accused person can establish that they have a ‘legitimate forensic purpose’ for seeking leave. The accused person must show that it is ‘on the cards’ that the documents will materially assist their defence.
Once leave is granted, the subpoenas are issued and the relevant documents are produced to the Court. The Court (not the parties) will then conduct a ‘preliminary examination’ of the documents to confirm whether the documents are in fact materially relevant to the accused person’s defence.
If they are, the Court will then consider whether leave should be granted for the documents to be disclosed to the parties. In considering this issue, it will take account of a range of matters, including the interests of the complainant and the public interest in general.
If leave is granted at this final stage, the documents are disclosed to the parties and may then form part of the accused person’s defence.
It has been noted by the ACT Supreme Court that the above process tends to increase the workload of the Court, particularly the requirement for the Court to conduct a ‘preliminary examination’ of documents which can number in the thousands. However, the legislature has seen a genuine need to legislate this process in order to ensure counselling relationships are not impacted unnecessarily.
In any event, the process by which an accused person can obtain counselling communications has become much lengthier and more complex in recent times, and it is critical to have an experienced criminal defence lawyer to help you navigate this process.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
