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New amendments to the Criminal Procedure Act

6 Dec 2019

New amendments to the Criminal Procedure Act allow child complainants to consent to production of privileged material.

S300 of the Criminal Procedure Act allows consent to production of counselling communications protected by the Sexual Assault Communications Privilege (SACP).

The amendment allows the Court to “determine a suitable person” who can consent for a complainant under 14 years of age.

Before this amendment, if, for example, young children made first complaint to a counsellor or psychologist, formal leave was required to serve the counsellor’s statement and any supporting notes. The leave process is in-depth and time intensive, and these applications cannot be made at all in preliminary criminal proceedings such as bail applications or committal.

The new provisions (amended s300 and the new s300(1A)) will allow applications to the Court to determine a suitable person.

Legal Aid NSW's SACP service is available to act for the complainant in these applications. Where Legal Aid’s Criminal Law Division solicitors appear, the SACP service refers matters to experienced private practitioners.

Defence solicitors should also be aware that while matters are usually referred to the SACP service by the ODPP when they arise, we proactively seek referrals from the ODPP if we are notified of issues by defence or third parties.

We also provide general procedural advice and assistance about SACP issues.