The Sofronoff Board of Inquiry into the Criminal Justice System was established in the wake of the abandoned prosecution of Bruce Lehrmann.  Lehrmann is alleged to have raped Brittany Higgins one evening in Parliament House, Canberra in 2019.  The case has become an extraordinary public saga, with intense media reporting since the allegations first became known.

One issue that has gained focus because of this case is disclosure of the complainant’s counselling and medical records to the defence.

Like the Australian Capital Territory, Queensland now has a statutory regime in place governing the extent to which a complainant’s medical records may be used in a criminal trial.  The relevant statutory provisions are contained in Division 2A, sections 14A to 14P of the Evidence Act (Qld).

In a criminal trial, it is not unusual for a complainant’s medical and/or counselling records to be used in some way during the proceedings.  If the complainant has described the facts of the offence to a doctor or counsellor, the degree to which this version is similar to their police statement may be important evidence going to credit, reliability, or both.  For instance, where a complainant gives similar or consistent versions to various other parties (such as the police and counsellor) the jury may take into account this fact in considering whether they are a credible and reliable witness.  Conversely, a jury may have more trouble believing a witness who gives dramatically different accounts of the event.  From the perspective of the police, the prosecution and the defence, proper investigation of sexual offences means that all persons with  knowledge of the alleged offence, whether directly or indirectly, should be questioned.  Using the terminology of the law of evidence, counselling records may be relevant because they are (a) prior inconsistent statements; (b) evidence of statements of fact by the complainant inconsistent with the Crown case; or (c) evidence of a medical condition affecting reliability.

Division 2A of the Evidence Act is an attempt to strike a balance between rights of individuals to privacy of their medical and counselling records, against the accused person’s right to a fair trial.  A fair trial includes having access to all information that goes to the facts of the allegations and a witness’ reliability and credibility.

Section 14F of the Act states that a person cannot obtain, produce, inspect, disclose or copy a “protected counselling communication” without the Court’s permission.

A “protected counselling communication” is broadly defined in section 14A of the Act as any “oral or written communication made in confidence” to a counsellor whether before or after the commencement of any police proceedings.  A “counselled person” is a person who has been the victim of a “sexual assault offence” who has sought counselling.

Sections 14G and 14H are the operative provisions in terms of whether the Court should grant leave to the parties to access the counselling records.  In practice, it is a two stage process.  The person applying for leave (usually, but not restricted to an accused person’s legal representatives) must outline what records are sought and why.  If the records have not previously been produced, the Court will first consider whether this should occur.  Once the records have been produced to the Court, the Court must consider whether the records should be disclosed to the parties, having regard to:

• Whether the documents have substantive probative value;
• The availability of other evidence; and
• Public interest considerations.

Public interest considerations include balancing the fairness of the trial with preserving the confidentiality of the communications and protecting the counselled person from harm.

Where the Court releases the records (whether in full or redacted) the defendant is not entitled to view them or receive a copy.  It is a serious breach of professional ethics if a legal practitioner provides a copy to their client without the prior and explicit leave of the Court. A counselled person has a right to obtain legal advice and representation about the privilege and may appear on an application.

The common law about sexual assault counselling privilege is still in a state of development, and the provision have not yet been subject to consideration by the Court of Appeal.  The Queensland Courts have issued a Practice Direction outlining procedures for practitioners to follow in criminal matters.

You can read a copy of report by the ACT Board of Inquiry into the Criminal Justice System here.