While we use the term ‘victim’ throughout, we wish to acknowledge the resilience and agency of people who have experienced sexual assault and their status as ‘survivors’.
2.
Known as Blake Dawson at the time of the project.
3.
In preliminary criminal proceedings such as bail and committal an ‘absolute privilege’ applies, this means that if a document is a protected confidence it cannot be disclosed.
Canada: R v O'Connor [1995] 4 SCR, 411 Supreme Court of Canada (particularly the minority judgment of judgment of L'Heureux Dube) and upheld in R v Mills [1999] 3 SCR 668, 719. Also in the United States Supreme Court in Jaffee v Redmond 518 US 1 (1996) and, later, expanding the scope of protections, in US v Lowe 948 F Supp 97, 99 (D Mass, 1996).
6.
Most notably in the decisions of R v Young (1999) 46 NSWLR 681 and R v Norman Lee [2000] NSWCCA444 (18 October 2000).
7.
The Evidence Act 1995 retains privilege provisions in relation to limited civil proceedings.
8.
Criminal Procedure Act 1986 (NSW) ch 6 pt 5 div 2; Evidence (Miscellaneous Provisions) Act 1958 (Vic) pt 2 div 2A; Evidence Act 1906 (WA) ss 19A-19M; Evidence Act 1929 (SA) pt 7 div 9; Evidence Act 2001 (Tas) s 127B; Evidence (Miscellaneous Provisions) Act 1991 (ACT) pt 4 div 4.5; Evidence Act 1939 (NT) pt VIA. For more information see the discussion of available protections in Australian Law Reform Commission (‘ALRC’), Family Violence – A National Legal Response, Report 114 (2010), para 27.102–27.109.
9.
ALRC, above n 8, para 27.102.
10.
Criminal Procedure Act 1986 (NSW), Ch 6, Pt 5, Div 2. The privilege applies in civil proceedings if ‘[…] substantially the same acts are in issue as the acts that were in issue in relation to a criminal proceeding’: Evidence Act 1995 (NSW), s 126H.
11.
Criminal Procedure Act 1986 (NSW), s 295.
12.
Criminal Procedure Act 1986 (NSW), s 296.
13.
Note: Prosecutors' duties of disclosure and impartiality preclude the ODPP from advising and appearing for victims in relation to the privilege: see ODPP Prosecution Guidelines, NSW, Prosecution Guidelines (20 October 2003) http://www.odpp.nsw.gov.au/guidelines/guidelines.html.
14.
Former ss 297 and 298 of the Criminal Procedure Act 1986 (NSW). These sections were replaced by the Courts and Crimes Legislation Further Amendment Act 2010 (NSW).
15.
Criminal Procedure Act 1986 (NSW), former ss 299 and 303.
16.
Criminal Procedure Act 1986 (NSW), former s 298(1)(b)(iii) and (4)(c).
17.
Criminal Procedure Act 1986 (NSW), former s 298(2) and (5).
18.
Some objections were based on something other than the privilege; eg, a packet of subpoenaed documents accompanied by a note that said ‘directed to the Judge only as it contained sensitive records’.
19.
The Hon John Hatzistergos, ‘New laws and $4.4 million to protect sexual assault victims’ (Media Release, 15 November 2010.)
Member of the ‘Working Party Concerning the Confidentiality of Counsellors Notes’, a lobby group for law reform and an advisory service for counsellors served with subpoenas; publication of three editions of the publication ‘Counsellors and Subpoenas’ (1996; 1998; 2004); ongoing community legal education; free advice and casework for complainants and some services.
22.
ALRC Report, Uniform Evidence Law, Report 102 (2005). The jurisdictions at the Standing Committee of Attorneys General could not achieve consensus on the creation of a model privilege, and instead developed seven baseline principles for jurisdictions legislating to protect sexual assault counselling communications: Standing Committee of Attorneys-General, Summary of Decisions Communiqué, 7 May 2010, 9–10.
