Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2003 Week 7 Hansard (26 June) . . Page.. 2533 ..

MR STANHOPE

aspects of their lives. Those records could possibly contain thoughts and statements that may never even have been shared with the closest of friends or family. Mostly, those records will contain an exploration of a complainant's fears and feelings arising from the assault. We should not be compounding a traumatic incident by allowing further trauma in the courtroom.

There may also be proceedings where admission of protected confidence evidence would be in the interest of the complainant. The evidence of early conversations, in the wake of an alleged sexual offence, might assist or even bolster the complainant's evidence. The legislation will apply equally to both situations.

For the purposes of the immunity, a protected confidence is a counselling communication made by, to or about a complainant. The immunity applies automatically. A counsellor or victim is not required to object to production of a protected confidence and a counsellor will only be required to produce records where required by a court. Depending on the stage of a criminal proceeding, different degrees of immunity apply.

If the proceeding is a preliminary criminal proceeding, that is, a proceeding concerned with the grant of bail or committal for trial, the immunity is absolute. It will not generally be possible for the court to have enough information about the case presented at preliminary criminal proceedings to determine whether to maintain the immunity. Consequently, counselling notes are not to be sought for production, and they may not be admitted in preliminary criminal proceedings.

A general immunity applies to a trial, sentencing or appeal. To disclose a protected confidence to the proceeding, the leave of the court must be sought.

There are three stages. For the first stage the party seeking leave must identify the legitimate forensic purpose and satisfy the court that the records would materially assist their case. Leave should be refused if the judge is not satisfied on these grounds. A grant of leave would begin the second stage, which is a preliminary examination by the judge of the protected confidence evidence. After conducting the preliminary examination, the third stage is the court granting leave for the disclosure of the protected confidence. This can only occur if the judge believes it to be in the public interest to disclose; in essence, that it will assist an accused person to have a fair trial. Balanced against disclosure is the public interest in preserving the confidentiality of protected confidence evidence.

A number of other provisions confer necessary power on the judge to assist in making the determination and orders needed to ensure this legislation operates effectively. Additionally there are provisions which ensure that evidence may be given by a medical practitioner arising from a physical examination of a complainant to a sexual offence. The immunity also does not apply if a communication is made for the purpose of a criminal proceeding. This is intended to ensure that prosecutors and investigators are not prevented from disclosing the communication that may be in the nature of a protected confidence.

The third provision is to remove the protected confidence immunity in case of misconduct, if it appears there has been corruption, collusion or other behaviour that suggests the protected confidence is untrue.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .