Sexual assault counselling notes are privileged documents for criminal and civil court proceedings started on or after 1st December, 2017, to protect your privacy. This includes domestic violence court proceedings.
A protected counselling communication is a communication made in confidence by a counselled person to a counsellor or vice versa to further the counselling process or about a counselled person by a parent, carer or support person in the process of furthering the counselling process. This does not include a communication about a physical examination conducted in the course of an investigation into an alleged sexual assault.
It is irrelevant that the counsellor may be a volunteer. A counsellor is a person who has undertaken training, is undertaking study or has experience. A general medical practitioner may be considered a counsellor.
The privileged counselling records cannot be provided during a court case unless the court grants leave for their production or the victim gives permission. If you are the victim you do not have to give permission to the police or prosecutor to access your counselling records.
If in doubt, do not give permission because you may not be able to withdraw that permission at a later date.
The courts will not give leave unless satisfied that:-
- The privileged communication will have substantial value,
- Other evidence to which the communication relates is not available,
- The public interest in admitting the evidence substantially outweighs the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm.
In considering public interest the courts must consider the need to encourage other victims of sexual assault to obtain counselling, the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship, public interest in ensuring victims receive counselling, and whether disclosure is likely to infringe a reasonable expectation of privacy amongst other things.
The hearing by a court to determine whether to give leave is usually decided on the basis of written material but if oral material is provided to the court then no one who is not essentially involved is to be present in the court room.
The court can make such additional orders as it considers appropriate to protect the victim of the assault from harm caused by production of an otherwise privileged counselling note.
If an accused person asks for documents in the possession of the police prosecutor, but the prosecutor reasonably believes that a counselling note attracts protection, then the prosecutor must give the accused person written notice that it is in possession of a document that it considers attracts protection and that you (the victim) have not consented to the production of the document.
This does not in any way affect a Victim Impact Statement. The Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Q) allows a victim to give a prosecutor details of the harm caused by the offence for the purpose of informing the sentencing court. However, the prosecutor can proceed with the sentencing proceeding without permitting the victim to give details of the harm if it is reasonable to do so having regard to the interest of justice, or if giving details of the harm would unreasonably delay the sentencing procedure or because of anything else that may adversely affect the reasonableness or practicality of permitting details of the harm to be given.
This is a general overview only. For more detailed information please contact our office.