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Subpoena survival guide

Sexual assault communications privilege (SACP)

Protections for sexual assault victims’ confidentiality in NSW

In 1997, NSW became the first jurisdiction in Australia to protect the confidentiality of sexual assault victims’ counselling records in the criminal trial process with the passing of the Evidence Amendment (Confidential Communications) Act 1997 (NSW). The protection is referred to as the Sexual Assault Communications Privilege (SACP).

There were several reasons for the introduction of this law:

  • increase in the number of sexual assault services in Australia in the 1980s and early 1990s;
  • increasing activism and law reform around the impact of sexual assault trials on victims;
  • increase in defence lawyers obtaining and using counselling records in criminal proceedings;
  • international law reform in this area.

The primary aim of the SACP was to protect sexual assault victims from further harm that may be caused if their records were revealed, safeguarding the broader public interest in maintaining the integrity of counselling and to promote the reporting of sexual assault.9

Parliament changed the law in 1999 and 2002 in response to narrow interpretations of SACP by the courts. The amendments expanded the scope of records ‘caught’ by the privilege.

In December 2010, further reforms strengthened the privilege. The 2010 amendments enhance victims’ participation in decisions affecting the confidentiality of their counselling and therapeutic records by:

  • establishing a new right for victims (or their lawyer) to assert the privilege in court;
  • requiring parties to ask permission (leave) from the court before issuing a subpoena;
  • expanding the factors a court must consider before granting leave to disclose records;
  • allowing the court to consider a ‘confidential harm statement’; and
  • expanding the range of sexual assault victims who can claim the privilege.

Today, the SACP protections are contained in the Criminal Procedure Act 1986 (NSW).

9 NSW, Parliamentary Debates, Legislative Council, 22 October 1997, 1129 – 1121 (Jeffrey Shaw, Attorney General)

Story iconCase study: Di Lucas

In December 1995, the Coordinator of the Canberra Rape Crisis Centre, Di Lucas was imprisoned for refusing to comply with a subpoena to provide a client’s confidential counselling notes. The case received national media attention and after a hard fought campaign by sexual assault survivors, lawyers, academics, sexual assault counsellors and parliamentarians, the NSW Government announced it would introduce laws to restrict access to counsellors’ notes in criminal cases. In 1997, landmark legislation was passed that created the Sexual Assault Communications Privilege. The law has been changed over time to strengthen these protections, most recently in 2010.

Sexual Assault Communications Privilege Pilot Project

The 2010 reforms were in response to the work of Women’s Legal Services NSW and a group of pro bono lawyers at the firms Ashurst,10 Clayton Utz, and Freehills, the NSW Bar Association and the Office of the Director of Public Prosecutions (ODPP). The lawyers provided free legal advice and representation to sexual assault victims in privilege matters. For the first time in Australia, victims were directly represented in court arguments about subpoenas.

The pilot project showed several things:

  • subpoenaed parties rarely raised objections based on the privilege;
  • the legal profession and judiciary had limited knowledge of the privilege legislation; and
  • sexual assault victims were unaware of the privilege and generally had no access to legal representation to assert their right to confidentiality.

It also uncovered technical gaps in the law.

10 Then known as Blake Dawson.

Legal service for sexual assault victims

In addition to enhancing protections under the Act, the NSW Government funded a new legal service for sexual assault victims claiming the privilege. The Sexual Assault Communications Privilege Service (SACPS) was established at Legal Aid NSW in late 2011. It provides free legal representation for sexual assault victims in privilege matters in NSW. All sexual assault victims, whether child or adult, who need legal help about the privilege can now access a free lawyer.

SACPS lawyers have been specially trained and can go to any criminal court in NSW. SACPS also provides education, legal and policy advice to the health, community and welfare sectors, as well as police and the legal profession, to promote awareness of the privilege.11

11 Van de Zandt, Pia, ‘The Sexual Assault Communications Privilege’, The Judicial Officers Bulletin, November 2011

Policy reasons for the Sexual Assault Communications Privilege (SACP)

A ‘privilege’ is like a shield that is used to protect certain types of information from disclosure in legal proceedings where it is in the public interest for that information to remain confidential.

Protections for sexual assault victims’ privacy are much debated. Some lawyers, particularly those working in the field of criminal defence, argue that the privilege could exclude relevant evidence and interfere with a defendant’s right to a fair trial and their ability to fully defend an accusation made against them by a well-resourced state.

On the other hand, some sexual assault counsellors and lawyers argue that there is never a good reason to disclose a sexual assault victim’s case notes, as their purpose is therapeutic, not investigative or forensic.

The privilege seeks to strike a middle ground so that a sexual assault victim’s confidential counselling or therapeutic records (referred to as ‘counselling communications’) may only be disclosed in criminal proceedings if the information has significant value as evidence in the case and the public interest in disclosure substantially outweighs the public interest in non-disclosure.

At the time the privilege was introduced in 1997, the Attorney General, the Hon. Jeff Shaw, said in Parliament (NSW):12

“The primary purpose of counselling is not investigative, it is therapeutic. The Government recognises the importance of counselling for a victim of sexual assault, and complainants are referred to a sexual assault counsellor when they complain to the police. As part of the counselling process, the complainant is encouraged to release emotions and talk unhindered, and yet the complainant has no legal right to review the notes to see if they are an accurate reflection of his/her version of the events.”

In introducing the latest amendments in 2010, the Attorney General, the Hon. John Hatzistergos, affirmed that ‘these reasons are still significant 13 years on’,13 and summarised the purpose of the privilege in these terms:

“The sexual assault communications privilege is designed to limit the disclosure of protected confidences at the earliest point possible: for a complainant who has gone to a counsellor to discuss the sexual assault, it is little comfort to him or her if the documents are not to be adduced [used] in evidence at the trial if they have already unnecessarily been disclosed to the defence by an order of the court. The privilege is not just designed to prevent the unnecessary adduction of evidence of protected confidences before a jury, but is designed to prevent the inappropriate subpoena of such confidences in the first place, and then the inappropriate granting of access to them.”14

12 Second Reading Speech of the Evidence Amendment (Confidential Communications) Bill 1997
13 The Hon. John Hatzistergos, Second Reading Speech, Courts and Crimes Legislation Further Amendment Act 2010, NSW Parliament, 24 November 2011.
14 Ibid.

What is SACP?

The Sexual Assault Communications Privilege (SACP) is a special legal rule that limits the disclosure in court of counselling, health and other therapeutic information about a victim of sexual assault. It is set out in the Criminal Procedure Act 1986 (NSW).15

TIP / It is important to understand that SACP does not apply in all areas of law.

This privilege applies in all criminal and Apprehended Violence Order (AVO) cases in NSW. It also applies in some civil cases (see SACP in civil proceedings), but only where SACP has been upheld in a criminal proceedings and the civil case is about the same or similar acts.

SACP does not apply in family law. It generally does not apply in child protection cases (see Confidentiality and child protection law).

15 See Division 2, Part 5, Chapter 6, ss 295–306.

Type of Case Does SACP apply?
Sexual assault charges Yes
Other criminal charges Yes
AVO Yes
Civil Occasionally
Family No : consider public interest immunity, Evidence Act and Family Law Act arguments
Child protection (care and protection cases) Generally not
Victims Support Scheme No

What triggers SACP?

SACP is activated when a party to a criminal case (defence, prosecution or police) wants to access or use written or oral communications that have been made in confidential, therapeutic settings. For example, the defence wants access to the victim’s mental health records, or the prosecution want to rely on evidence that the victim told their GP about a sexual assault immediately after it happened, many years before it was reported to the police.

In practice, the ODPP usually alerts the victim to their SACP rights so they can get legal advice and representation if they want it. As awareness of the privilege increases, Judges, lawyers and health professionals also identify privilege issues when they arise.

How broad is SACP?

The privilege protects a very broad range of confidential information, not just sexual assault counselling records. Some examples of protected communications are:

  • counselling notes
  • medical notes
  • mental health records
  • drug and alcohol records
  • financial counsellor records
  • letters and referrals between health professionals
  • emails from a school counsellor to a parent or teacher
  • social worker reports held by Centrelink or Department of Housing.

SACP Terminology

SACP law is complex. It can be confusing because it uses everyday terms that have a special technical meaning in the legislation. Some of these terms are defined below:

Protected confidence

The privilege applies to any information that is a ‘protected confidence’.

A ‘protected confidence’ is defined as:

  • a counselling communication
  • by, to, or about
  • a victim (or alleged victim) of a sexual assault.

There are three things to note about this definition. First, a counselling communication is covered by the privilege even if the sexual assault is only alleged (i.e. not yet proved to have occurred).

Second, a counselling communication is protected whether it occurred before or after the sexual assault took place.

Third, a counselling communication is privileged even if it does not mention sexual assault or contain any information about a sexual assault.

This means that the SACP creates a special class of witness: anyone who has even been an alleged victim of a sexual assault. Any therapeutic information that relates to a witness in this class will be privileged in all criminal and AVO proceedings.

TIP / Remember, the privilege relates to records even if they were made before the sexual assault and to records that do not refer to the sexual assault or are not, or do not appear to be, directly related to the assault.

Protected confider

A person who makes a protected confidence is known as a ‘protected confider’. The sexual assault victim (a complainant or tendency witness) is known as the ‘principal protected confider’.

Counselling

The term ‘counselling’ has a very broad meaning, well beyond everyday usage or typical health sector definitions.

In SACP law, to be a person who ‘counsels’ another person, a worker (including volunteers) only needs to satisfy the following criteria:

  1. Knowledge or experience. They have undertaken training or study or have experience relevant to the process of counselling people who have suffered harm (see Harm section for definition of harm).
  2. Action. Their role requires them to:
    • listen to and give verbal or other support or encouragement, or
    • advise, or
    • provide therapy, or
    • provide treatment.

This assistance can be provided in either a paid or an unpaid role.

Story iconCase study: Kari

Kari is about to give evidence in a sexual assault trial. The Defence is trying to get records from her current sexual assault counsellor, as well as her hospital records about recent surgery and case notes from a drug and alcohol counsellor she saw ten years before she was sexually assaulted. All of this material meets the definition of a ‘protected confidence’ and would be covered by the privilege.

Story iconCase study: Tina

Tina volunteers for a telephone support service. Even though her assistance is unpaid, and she has no formal qualifications, communications with Tina in her telephone support role would be protected by the SACP legislation.

In practice, ‘counsellors’ can include all health professionals (psychologists, counsellors, doctors, nurses, allied and complementary health practitioners, for example), most welfare workers (including youth workers, refuge workers and financial counsellors) and many other professionals, such as social workers, teachers, school counsellors and government or NGO case workers (Centrelink or housing, for instance).

TIP / The types of service providers whose records have been considered privileged by courts include:

  • sexual assault counsellors
  • psychologists
  • supported youth accommodation services
  • refuge accommodation
  • general practitioners
  • medical specialists particularly psychiatrists and emergency department doctors
  • nurses
  • physiotherapists
  • alternative health practitioners such as kinesiologists
  • school & financial counsellors
  • ambulance officers.

Some examples of records that Courts have protected under SACP include:

  • diagnostic medical records including blood tests
  • drug and alcohol treatment records
  • ambulance records
  • hospital and other in-patient records including nursing notes, casualty and emergency records
  • letters of referral to specialists (whether or not they treat the client before or after the referral).

Counselling communication

A ‘counselling communication’ is any information that is confidentially shared during the course of counselling someone.

The process of ‘counselling’ only needs to be ‘in relation to’ any harm (see definition of harm below).

This is a broad definition which means that the ‘counselling’ is not limited to direct treatment for harm. It would include all types of consultations such as ongoing checkups and recovery support. For example, anything discussed with a GP during a general check-up would be a ‘counselling communication’.

TIP / ‘Counselling’ has a very broad meaning in SACP law. It includes the ordinary meaning of counselling used in psychology, social work and therapy BUT it also includes treatment for physical harm. This means that all medical treatment information is protected by the privilege.

The law allows for the presence of support people (such as parents) during counselling and the protection extends to cover anything a support person says or anything that is communicated to them. The sharing of confidential information between counsellors (for example, for referrals or handover) is also protected. In summary, a ‘counselling communication’ includes anything discussed during or about counselling by anyone involved.

TIP / Counselling communications include: primary sources such as the original file or the oral evidence of the treating practitioner, as well as secondary sources that could indirectly disclose a protected confidence. For example, a report, referral letter or email which includes or refers to confidential information.

Story iconCase study: Anna

Anna visits her GP for a general checkup because she is planning a big overseas holiday. During the consultation she mentions sleep difficulties and anxiety she had in the past, but says they are no longer a problem. Even though there is no specific discussion of any current ‘harm’, these communications would be classified as ‘counselling communications’ under SACP legislation.

Harm

Harm is defined very broadly to include:

  • actual physical bodily harm
  • financial loss
  • stress or shock
  • damage to reputation, or
  • emotional or psychological harm (such as shame, humiliation and fear).

Over time, the definition of harm has become more expansive to reflect current understanding of the impact of sexual assault and the therapeutic needs of victims.

Sexual assault

The term ‘sexual assault’ is defined very broadly, ranging from an act of indecency to very serious offences such as aggravated sexual assault.

Are your files protected by SACP?

Checklist for services
QuestionYesNo
Do you provide a confidential service?   
Do you (or your staff or volunteers) have training, experience or study relevant to counselling, treating or supporting people?   
Do you assist people who may have suffered any kind of harm?   
Do you or your staff listen to, support, advise or give therapy OR provide treatment?   
Is there ANY indication (from your file, or the type of court case, or any other source) that the client has ever been a victim of any alleged sexual assault (whether before or since the client saw you)?   

If you have answered YES to all of these questions, your files are almost certainly protected by SACP. Do not release any information or documents until you are certain that court has ordered you to do so

Even if you have answered NO to one or more of these questions, your files may still be protected by SACP and you should get further information and advice before you disclose anything.

TIP / If you receive a subpoena and you think SACP may apply contact the Sexual Assault Communications Privilege Service (SACPS) at Legal Aid NSW for advice. SACPS can also provide a free lawyer to represent your client in court. Act early to make sure your client’s privacy is protected.

Consent to release information

A victim of sexual assault can consent to the release of protected confidences (‘waive privilege’) during a court case but there are very strict procedures for doing this. The consent must be in writing and make specific reference to the information being released. It must also state that the victim understands their SACP rights.

TIP / Don’t assume that standard consent forms or a signature in a police notebook are enough to waive privilege. The law sets a very high threshold and consent needs to be provided in a proper form.

A victim should get legal advice to ensure that their consent is fully informed. The SACP Service at Legal Aid NSW can provide a free lawyer to help with this.

Story iconCase study: Bella

Bella is a client of a local community health centre. She has regular appointments with a counsellor, and occasional medical and dental appointments. She has also attended the centre’s baby health clinic with her son for general midwife checkups and for assistance with breastfeeding and sleep routines.

A subpoena from the District Court arrives on the desk of Yianni, the coordinator of the centre. The subpoena requests all records about Bella that are held by the centre. Yianni phones the District Court registry and discovers that the subpoena relates to a charge of sexual assault in which Bella is the alleged victim. This means that all of Bella’s records would be protected by SACP, including notes made by the counsellor, the doctors, nurses, dentists and midwives. Yianni refers Bella to the SACP Service at Legal Aid and does not disclose the documents.

Story iconCase study: Maria

Maria was sexually assaulted by an acquaintance when she was 18 years old. She started counselling about a week later and disclosed the details of the sexual assault to her counsellor. She didn’t feel ready to go ahead with a formal complaint to police at that time. When Maria turned 24 she decided to make a formal complaint to police about the sexual assault which had happened six years earlier. Due to the delay the police asked Maria if she had told anyone about the sexual assault at the time it happened. Maria said that she had told her counsellor.

When the matter was before the District Court, the ODPP solicitor applied for a subpoena to Maria’s counsellor. At court, Maria was represented by a SACP solicitor, who found the paragraph in the counsellor’s notes in which Maria described the sexual assault. Maria signed a formal consent which stated that she was aware that the information would be covered by SACP but consented to it being inspected by the parties in the case. The counsellor’s notes from six years earlier very closely matched Maria’s formal statement to police. As ‘evidence of first complaint’, it helped establish that Maria was a credible witness. No other information from the notes was released and Maria’s privacy was protected.

How does SACP work?

Leave requirements

In most criminal matters, a party to the proceedings can issue a subpoena without asking for the court’s permission (‘leave’). This is usually done through the court’s ‘registry’ or office and does not require a Judge or Magistrate’s consideration.

However, the process is very different for SACP. If a person wants to subpoena a protected confidence they must first ask for, and be granted, the court’s leave to do so.

The law says that anyone who is trying to obtain a ‘protected confidence’ (usually by way of subpoena), or planning to use a ‘protected confidence’ in evidence, must give written notice to each ‘relevant’ protected confider and each party in the case. At least 14 days notice should be given and there are strict rules about what information needs to be in the written notice.

Although the rules for giving notice are strict, the Judge or Magistrate can dispense with them in exceptional circumstances. This practice is currently very common.

Stage of court case

There are different levels of SACP protection for ‘protected confidences’ depending on the stage of court proceedings. In general, there is total protection in the early stages. In later stages, the degree of SACP protection is decided by the court in each case.

SACP in early stages

During the early stages of a criminal case, there is an ‘absolute privilege’. This means there is a total prohibition on protected confidences being subpoenaed or used in evidence. These early stages are called ‘preliminary criminal proceedings’. In most cases, this will be when the matter is still in the Local Court, before it is committed for trial and sent to the District Court.

Story iconCase study: Stewart

Stewart was sexually assaulted and the charges of sexual intercourse without consent are before the Local Court, awaiting committal to the District Court. The defence solicitor has issued a Local Court subpoena to Stewart’s GP asking for all records. The SACP Service at Legal Aid NSW has provided a lawyer to advise and represent Stewart. The lawyer refers the Magistrate to section 297 of the Criminal Procedure Act 1986, which contains a total prohibition on attempting to access privileged documents in preliminary proceedings. The Magistrate disallows the subpoena. When the matter is in the District Court, there may be a further application for the records, and Stewart’s lawyer will represent him again at that stage.

Is a subpoena valid at this early stage?

If a subpoena is incorrectly issued in the ‘preliminary’ stages, it is invalid, and you can object.

TIP / A victim can consent to release or use of ‘protected confidences’ at any stage of court proceedings. But remember, consent in SACP cases must comply with strict rules. See above. A SACP lawyer can advise the victim about their options.

SACP in later court stages

Under SACP law, the later stages in a criminal court case are called ‘criminal proceedings’. At this point (usually when the case has arrived in the District Court), the privilege becomes ‘qualified’. This means that the Judge or Magistrate can override the victim’s confidentiality if there are compelling reasons.

AVO proceedings are in this category, regardless of what stage they are at.

Is a subpoena valid at this later stage?

SACP law says that a subpoena for protected confidences can only be issued at this stage if the court has given permission first (‘granted leave’ under section 298(1) of the Criminal Procedure Act 1986). A subpoena at this stage will be invalid if there is no leave.

Make sure you check whether the court has granted leave for the subpoena before you respond. Look for an attached court order or letter from the lawyer who issued the subpoena stating that leave was granted on a particular date.

If you are uncertain, you can contact the court registry and ask:

“Has the Judge or Magistrate made a formal order granting leave to issue this subpoena?”, or “Has there been a notice of motion seeking leave to issue this subpoena?”.

If it is clear that the subpoena has been issued without the leave of the court, the subpoena will be invalid and you can object.

At the time of writing, many subpoenas are still being incorrectly issued by court registry offices without the proper authorisation of a Judge or Magistrate.

TIP / As SACP is still a fairly new area of law with its own special rules, court staff may not know that a subpoena for protected confidences can only be issued if a Judge or Magistrate has given permission. A subpoena that has been simply stamped by court registry staff, without leave being granted, will be invalid. If you receive a subpoena and you think the SACP might be relevant, always contact the court and ask: ‘Has a Judge or Magistrate granted leave for this subpoena?’.

TIP / If you release records based on an invalid subpoena you could breach your client’s privacy and their trust.

Story iconCase study: Fiona

Fiona is the health information manager at a rural hospital. She received a subpoena from the District Court for all records relating to Nikki, who has attended the hospital on several occasions. Fiona could not see any sexual assault disclosures in the notes. Fiona rang the District Court and asked these 4 questions:

  • Is this a criminal or AVO proceeding? YES
  • Is there an alleged act of indecency, indecent assault or sexual assault? YES
  • Is Nikki the victim of the allegation? YES
  • Has leave of the court been granted for the subpoena (as required by section 298 of the Criminal Procedure Act 1986)? Fiona makes sure by checking with the registry staff whether there have been any ‘notices of motion’ for leave to issue the subpoena. NO

Fiona is now confident that the subpoena she received contravenes section 298 and is not a valid subpoena. She sends a letter to the solicitor stating that leave has not been granted for the subpoena, and sends a copy to the Court and the ODPP. Fiona also notifies the SACP Service at Legal Aid NSW so they are aware of the case and can make a lawyer available for Nikki about privilege issues.

A few weeks later, Fiona receives a subpoena with an attached official notification that the District Court Judge has granted leave for the subpoena. She sends a copy of relevant documents requested under the subpoena to the District Court in a sealed envelope, marked ‘CONFIDENTIAL PRIVILEGED DOCUMENTS – ONLY TO BE OPENED BY JUDGE’, with a copy of the subpoena attached to the front of it, all inside a larger envelope addressed to the court registry.

TIP / In most sexual assault cases, any subpoena issued by the Local Court is likely to be incorrectly issued because the case is still in ‘preliminary criminal proceedings’ (see below). Subpoenas issued in the District Court are far more likely to be valid because they are issued at the more appropriate, later stage (‘criminal proceedings’), but they are still only valid if leave has been granted by the court.

Summary: Is a subpoena for ‘protected confidences’ valid?

There are two reasons why a subpoena may not be valid under SACP law:

  1. The subpoena was issued too early during the case (that is, during ‘preliminary criminal proceedings’); or
  2. The court did not give permission (‘leave’) for the subpoena to be issued.

If you receive a subpoena that you think is invalid, don’t ignore it. Follow the procedures outlined below.

What to do if a subpoena is invalid

If you receive a subpoena that is invalid because the case is still in preliminary criminal proceedings, you can send a letter to the court like the one below, and a copy to the defence and prosecution lawyers.

Dear Registrar

I acknowledge receipt of the subpoena issued at Taree Local Court, returnable on 24 February 2014. We understand this matter is still in preliminary criminal proceedings stage and therefore the subpoena is invalid pursuant to s297 of the Criminal Procedure Act 1986. I await further notice.

Yours sincerely
Millicent Milligan
Coordinator
Coast Domestic Violence Service

If you are sure that the subpoena is invalid because leave has not been granted, consider sending a letter like this, and send a copy to the defence and prosecution lawyers as well.

Dear Registrar

I acknowledge receipt of the subpoena issued at Gundagai Local Court, returnable on 28 March 2014. We understand that leave has not been granted by the court as required by s298 of the Criminal Procedure Act 1986. I therefore consider this subpoena to be invalid. I await further notice.

Yours sincerely
Henri Lawson
Manager
Counselling Service

What to do if a subpoena is valid

If you receive a subpoena which has been issued with formal leave of the court, you will need to comply.

Sending documents to court when the subpoena is valid

Even if a subpoena is validly issued, SACP law still provides strong protection for a victim’s privacy. To maximize privacy protections and alert the court staff that the subpoenaed information is privileged, follow these simple steps:

  1. Make sure you only send what is requested in the subpoena. Be careful about sending too much. Carefully check any dates and the kinds of records requested.
  2. Put the privileged documents and a copy of the subpoena in a sealed envelope, marked PRIVILEGED: No access without Judge or Magistrate permission.
  3. Attach a second copy of the subpoena to this sealed envelope
  4. Send a cover letter, with the subpoena attached to the outside of the sealed envelope:

Dear Registrar

We enclose documents in response to the attached subpoena. Please note that this material is subject to the Sexual Assault Communications Privilege because it contains protected confidences and we therefore request that no access be granted to anyone without leave of the Judge (for District Court) or Magistrate (for Local or Children’s Court). Kindly return the documents when they are no longer necessary in the court proceedings.

Ursula Underwood
Health Information Manager
Community Health Centre

TIP / If you have not contacted the SACP Service at Legal Aid NSW by this stage, now is the time to do so. They can provide a free lawyer for your client / patient at court.

Notice requirements

The law says that anyone who is trying to obtain a ‘protected confidence’ (usually by way of subpoena), or planning to use a ‘protected confidence’ in evidence, must give written notice to each ‘relevant’ protected confider and each party in the case. At least 14 days notice should be given and there are strict rules about what information needs to be in the written notice.

Although the rules for giving notice are strict, the Judge or Magistrate can dispense with them in exceptional circumstances. This practice is currently much more common than it should be.

Unexpected privileged content

Sometimes subpoenas are issued without any expectation that the information will contain ‘protected confidences’. In these cases, no one involved would be aware that SACP might apply. It is only when the subpoena is being processed that potential SACP issues arise.

For example, a lawyer may not expect that a person’s Department of Housing file would contain sensitive information, so leave for that subpoena is not requested. However when the subpoena is being processed, medical and caseworker reports are found on file. These are privileged under SACP law.

In this situation, the ‘protected confidences’ that are unexpectedly ‘caught’ by the subpoena should not be produced to the court. You should notify the Court and lawyers there is privileged material which will not be produced unless leave is formally granted by the Court.

TIP / Remember, if leave has not been granted for the subpoena you should not send any of the documents requested. Only send a letter acknowledging receipt (see above for a sample).

In some cases, the lawyer who sent the subpoena will simply request that only non-privileged documents be produced, so the privileged information remains private and is never given to the Court. In other cases, the Court might grant leave and the privileged material will have to be sent to the Court.

TIP / Your subpoenaed documents should never be sent to, or handed directly to, the other party.

Who gets a lawyer?

Until recently, SACP was argued by the person or service who received the subpoena. Sometimes this was done by a lawyer, but often the person or service represented themselves in court. This has changed since the SACP Service was set up within Legal Aid NSW in late 2011. Free lawyers are now routinely provided to represent the victim directly. This means that there is now far less need for therapeutic services to take up their client’s cause in Court. Some services may still decide to have their own lawyer when the privilege is raised, which can sometimes help, but is less critical.

The new focus for therapeutic services should be to identify and flag potential SACP issues when subpoenas are first received. It is crucial that documents are not incorrectly released to the court or other parties. Once documents are lawfully required to be at Court, the main priority is to ensure the client is given access to a lawyer (which will almost always be through the SACP Service).

Story iconCase study: Max

Max works for a large credit union and is responsible for handling all subpoenas. He receives a District Court subpoena for “all records held about Naomi Baker-Cook DOB 1/7/59”. Max notices that the subpoena is in a criminal case. He also realizes that the credit union’s records include reports from Naomi’s psychiatrist related to a mortgage hardship claim she made ten years earlier. The psychiatrist’s report includes a diagnosis for PTSD from a history of childhood sexual assault.

Max recently attended a legal conference where he heard about the Sexual Assault Communications Privilege. He realises that the psychiatrist’s report is probably covered by SACP and wants to ensure that Naomi’s privacy is protected. Max sends the following letter to the court.

Dear Registrar

I acknowledge receipt of the subpoena issued at Orange District Court, returnable on 14 May 2014. Your subpoena will compel production of ‘protected confidences’. I understand that leave has not been granted as required by s 298 of the Criminal Procedure Act 1986. I will not produce any documents containing ‘protected confidences’ unless leave is granted. I await further notice.

Yours sincerely
Max
Compliance Manager
Sunshine Credit Union

What can SACPS lawyers do?

For the first time in Australia, victims of sexual assault who want to claim the privilege in Court now have publicly funded lawyers to help them do that. These lawyers have two jobs: to advise the person about their SACP options, so that they make informed decisions about their private information, and, if necessary, to advocate for them in court.

The SACP Service at Legal Aid NSW accepts statewide referrals for any victim of sexual assault who is affected by the privilege. At the time of writing, no means or merits test is applied. The service also provides free advice and information to workers and services in the health and welfare sector who have received a subpoena for client records.

Why would a court override a victim’s privacy?

The leave test

The SACP legislation sets a very high bar for the release of private therapeutic information. The court must weigh up the public interest in protecting a victim’s confidentiality against the public interest in an accused person’s right to a fair trial.

We call this balancing exercise ‘the leave test’.16 The court uses this test at each point in the case where it must decide between confidentiality or disclosure.

Before a court will issue a subpoena or allow a protected confidence to be inspected or used in evidence, three questions must be considered:

  1. Does the information have substantial probative value in the case?
  2. Is the information not available from another source? (If the information can come from another source, which doesn’t involve a confidential relationship, then it should come from there); and
  3. Is the public interest in preserving confidentiality substantially outweighed by the public interest in admitting the information into evidence?

'Substantial probative value’ is a legal term that means that “something has a greater than significant chance of having a real bearing on an issue in the case.”17 In other words, the information needs to have crucial evidentiary value, not just a mere chance of being important. For example, in sexual assault trials, the complainant’s credibility is often a significant issue, so the question would be: are the documents sought in the subpoena really likely to affect the court or the jury’s assessment of the complainant’s credibility?

In applying the public interest test, the court must consider these factors:

  • the need to encourage victims of sexual offences to seek counselling
  • the effectiveness of counselling is likely to be dependent on maintaining confidentiality
  • the public interest in ensuring that victims of sexual offences receive effective counselling
  • the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person
  • whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias
  • whether disclosure of the evidence is likely to infringe a reasonable expectation of privacy.

16 Criminal Procedure Act 1986 (NSW) s299D.
17 See R v Lockyer (1996) 89 A Crim R 457; AW v The Queen [2009] NSWCCA 1 at [47]; R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [33]; R v Zhang [2005] NSWCCA 437; (2005) A Crim R 504 at [139]; and R v El-Azzi [2004] NSWCCA 455 at [179–183].

Story iconCase study: Asha

Asha was sexually assaulted by a stranger on her way home from the train station one night. She managed to get away from her attacker and ran home. She was terrified of leaving her house, and spent the rest of the night in the shower. In the morning she went straight to her GP, who referred her for specialist sexual assault counselling, and ordered some blood tests. Her GP recorded Asha’s description of her attacker: very tall, thin, fair skin, blond hair. Asha gave a statement to police the next day. In her statement, Asha gave a distinctly different physical description of the attacker: short, stocky, dark-skinned, black hair.

At court, if there is no other convincing evidence, such as DNA or eyewitness evidence, Asha’s disclosure to her GP would probably be held to be of substantial probative value, and if it was not available from any other source (such as a friend Asha had described her attacker to), the court would need to conduct the balancing exercise.

In an extreme example like this where the identification evidence of the accused is so inconsistent, the court would probably allow it into evidence. The rest of Asha’s GP records would probably be protected, though, with only the sexual assault disclosure being considered probative. This could be really important to Asha. Her GP records could include all sorts of sensitive things - not just details of that assault.

Confidential harm statement

A court can also consider a ‘confidential harm statement’ that describes the harm the victim is likely to suffer if the information is released or used. This statement needs to be in the form of an affidavit (see Glossary), and can be written by, or on behalf of, the victim.

Counsellors, service providers and other support people, may sometimes be asked by the victim or their lawyer to prepare a confidential harm statement. It is up to the Judge or Magistrate to decide whether it will accept and consider a statement. But the statement can only be seen by the victim, the victim’s lawyer and the Judge or Magistrate. The prosecution, the defence and the accused cannot see it.

Confidential harm statements are extremely useful. They can alert the Judge to highly sensitive information in the documents or a particular vulnerability of the victim. Examples of information that the victim may not want the accused or anyone else to know about might include: a history of childhood sexual abuse, extra marital affairs, pregnancy termination or infectious diseases, recent episodes of self-harm, suicidal ideation or current relationship difficulties.

The confidential harm statement conveys this information directly to the Judge without it being discussed in an open court room.

Confidential harm statements are not necessary in every case, particularly when the likely harm is already obvious. The victim’s lawyer will decide if a statement is needed depending on the circumstances of the case.

Story iconCase study: Carlos

Carlos is the victim of a sexual assault by a colleague, James. During the prosecution of his colleague, Carlos’s counselling records are subpoenaed. His SACP lawyer prepares an affidavit of Carlos’s concerns:

  1. I don’t want James to know anything about me;
  2. I don’t want James to find out that I was sexually abused when I was a child;
  3. I don’t want James to find out that I have been having problems with bullying by our other colleague, Margaret;
  4. I don’t want James to know anything about how his assault on me has affected my relationship with my partner;
  5. I don’t want James to know that I have nightmares about his assault on me;
  6. I don’t want James to know that I am now taking anti-anxiety medication, which I blame on his behaviour towards me;
  7. I would feel betrayed and devastated if my private counselling records were made available to strangers, particularly James or his lawyer.

Story iconCase study: Stella

Stella’s counsellor, June, is asked to prepare a harm statement on behalf of her client. In her affidavit June states:

  1. I have been counselling Stella for over 3 years;
  2. Stella has attended counselling fortnightly, and sometimes weekly, and we have spent over 130 hours in therapy sessions together;
  3. Stella has very little trust in other people, or authority, and finds it difficult to be candid about her emotions;
  4. Stella and I have spent many hours together gradually building up a trusting relationship within which she feels safe and supported;
  5. Over many sessions, Stella has become more articulate and frank about her emotions;
  6. My therapeutic relationship with Stella is dependent on her trust in the confidentiality of our communications;
  7. Stella has often expressed a strong fear towards the perpetrator, her father;
  8. Stella has expressed a belief that her father would seek revenge if Stella ever reported his abuse to police;
  9. Stella has expressed a sense of isolation within her family because they would not listen to her experiences;
  10. Stella has had episodes of hospitalisation after she has attempted suicide;
  11. Stella has told me that she fears that exposure of her private thoughts may set her back in her recovery, and may trigger suicidal thoughts.

When the court orders release

When the court orders the release of a ‘protected confidence’, generally this does not mean that the whole file or document will be released. Only those sections of the notes which are relevant will be released. In practice, this means that only a few pages of a large file may be released. There may be large white spaces within the document where material has been protected by the court, or blacking out of words or passages [‘redaction’].

When the Court has decided that a protected confidence can be used in evidence, strict rules will be imposed about which information can be referred to or not.

TIP / If you have not already done so, contact the SACP Service at Legal Aid NSW now! If ever you are sending privileged material to a Court, ensure you have contacted Legal Aid NSW’s SACP Service so you can get information and advice and your client has an opportunity to be represented by a free lawyer at court.

Appeals

Both subpoenaed parties and protected confiders can appeal a court’s decision about SACP.18 Appeals can be made against:

  • an order to grant leave to issue subpoenas; or
  • a decision about whether or not information is a protected confidence.

Appeals from a District Court decision are usually made to the Court of Criminal Appeal. Appeals from the Local and Children’s Courts are made to the Supreme Court in certain circumstances.

If you are considering making an appeal, get legal advice.

Strategies to minimise harm

Although the court will sometimes override the privacy of a victim’s information (in the interests of a fair trial), there are still steps that can be taken to minimise any unnecessary harm to your client. This is usually managed by the lawyer representing the victim.

Protecting contact information

Generally a witness in a court case does not have to provide their address or telephone number. An exception would be when these details are needed in the case.19

If the court orders information to be released and it will reveal the victim’s contact details, you can ask for permission to black out (‘redact’) these details before you release the documents.

Redaction can only be done with the consent of the parties. If the parties can’t consent to redaction, this will need to be argued in court.

Ancillary orders20

If the court orders release of information, it may also make some ‘ancillary orders’ to control who can read and copy any documents. Disobeying these orders would be in contempt of court. Examples of ‘ancillary orders’ are:

  • only those sections of the notes the Judge or Magistrate considers relevant are to be made available;
  • the parties are only allowed to read the notes, and not allowed to make copies;
  • if the parties are allowed a copy, only one copy of the notes is provided and they are not allowed to make any additional copies;
  • only the lawyer can handle the documents (not the accused person);
  • all copies of notes are to be returned within 7 days after the end of the case; and
  • if a counsellor is to give oral evidence in court, all or some of the evidence is heard ‘in camera’ – in private, with the general public excluded.

18 Criminal Appeal Act 1912 (NSW) ss 5F(3AA) and (3AB).
19 Criminal Procedure Act 1986 (NSW) s 280(1).
20 Criminal Procedure Act 1986 (NSW) s 302.

TIP / Remember, you are the custodian of your client’s sensitive information. Once a confidential record is disclosed it can be hard to undo the harm. SACP is so broad, you should assume your files are protected. Only release information if you are certain the privilege doesn’t apply and speak to a lawyer if you need help.

Other claims for privilege in criminal proceedings

If your records are not covered by SACP you may be able to claim another privilege, such as the Professional Confidential Relationship Privilege or you may be able to rely on a “common law” power. See Information requested is privileged. In most cases, these protections are not as strong as SACP protections. Talk to a lawyer if you are considering doing this.

SACP in civil proceedings

The confidentiality of sexual assault victims’ counselling and therapeutic records in civil proceedings in NSW is protected by SACP in only very limited circumstances.

In civil proceedings, the privilege applies to communications that:

  • were privileged under SACP in criminal proceedings; AND
  • the civil proceedings relate to substantially the same issues as the criminal proceedings.21

This protection is most likely to be available in personal injury law and sexual harassment claims (under NSW law).

These situations are unusual. If you receive a subpoena in a civil case, and you think you may be able to object on the basis of the privilege, talk to a lawyer and notify your client.

Although family law matters are civil proceedings, SACP does not apply in family law cases. There may be general objections you can raise to limit disclosure of sensitive confidential information. These can be extremely powerful (see Confidentiality and family law).

SACP in other states

The confidentiality of sexual assault victims’ counselling records is protected – to varying degrees – by legislation in all Australian jurisdictions except Queensland.22 In 2006 the Australian Law Reform Commission (ALRC) recommended that a NSW-style privilege should be adopted in the Commonwealth Evidence Act, to apply in both civil and criminal proceedings to all disclosure requests (such as subpoenas and search warrants).23 At the time of writing, this has not yet been adopted.

If you receive a subpoena from a Court in another state you will need to find out what the privilege law is in that state.

21 Evidence Act 1995 (NSW) s 126H.
22 There is a comprehensive discussion of the protections for sexual assault victims’ confidentiality in Australia in ALRC, Report No.114, Family Violence – A National Legal Response [2010] Chapter 27.
23 ALRC, Report 102, Uniform Evidence Law, Recommendations 15.4-15.6, 8 February 2006.