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Subpoena survival guide

Confidentiality and Victims support scheme

A person injured as a result of an act of violence committed by another person in NSW may be eligible to apply for counselling, financial support and/or a recognition payment through Victims Services.

Types of financial support include financial assistance for immediate needs, financial assistance for economic loss and funeral expenses. A recognition payment is a payment made in recognition of the trauma suffered by a victim of crime.

Applications for victims support are made ‘on the papers’, which means that the victim does not need to appear at Victims Services to give evidence. This does mean that treatment records are extremely important though. For further information including time limits for making applications go to the Victims Services website.

Documentary evidence required

Applications for victims support must be supported by documentary evidence. The evidence required varies depending on the type of victims support claimed but can require medical, dental or counselling reports detailing that the applicant is a victim of an act of violence and any physical or psychological injury sustained as a result.

Claims for financial assistance for economic loss or recognition payments must also be supported by a report from police or a government agency. The offender is not involved in the victim support application process.

However, if the victim receives victims support or a recognition payment and the offender is found guilty of the relevant offence, the offender will usually be required to pay back Victims Services the amount or part of the amount paid to the victim. This is called restitution. A victim is not involved in restitution proceedings, but there may be confidentiality risks.

What if Victims Services requests information?

Victims Services can require a government agency to provide information and can request any other person to provide information.24 Unless you are a government agency, you cannot be compelled to respond to the request, but any information you do provide must not be false or misleading. You may also be asked for your records to support a claim by the applicant directly or by their solicitor or representative, with the client’s authority.

TIP / Remember that victims support is designed to help victims: your records will usually help your client’s claim.

If you are concerned, Victims Services may agree to an alternative: you may be able to provide a report detailing the impact of the crime on your client instead of providing documents such as your case notes. Discuss this option with your client.

Once your report or documents are provided to Victims Services, they will become part of the Victims Services records. There is a risk that Victims Services records may be released (see below).

24 The power to do this comes from section 12 Victims Rights and Support Act 2013.

Can Victims Services records be subpoenaed?

If Victims Services receives a subpoena, it will usually object, because their records are not admissible in any NSW civil or criminal proceedings. An exception is if the accused person in a criminal case was also the applicant for victims support arising out of the same incident.

Victims Services will release records if it is satisfied that they will benefit the person the records are about.25

25 See case R v Kremmer [2000] NSWCCA 529

Confidentiality and restitution proceedings

A word of caution: Although victims support applications are usually confidential, there is a possibility of disclosure if a convicted offender challenges restitution proceedings. In this situation an offender, or their lawyer, may be able to look at documents from the victims support file. Note that restitution proceedings do not affect the amount provided to the victim, and the victim does not participate in restitution proceedings.

It is a good idea to label any documentation you provide to Victims Services as confidential:
“SENSITIVE AND CONFIDENTIAL. DISCLOSURE LIKELY TO CAUSE HARM TO THE VICTIM.”

This will not guarantee that documents will not be made available to the offender, but it is a safeguard, and should alert Victims Services to the sensitivity of the documents. Victims Services do not release the victim’s personal contact details.