Free legal representation to maintain the confidentiality of medical and counseling records of sexual assault complainants is "shockingly overdue", Freehills pro-bono counsel Annette Bain told Lawyers Weekly.
Freehills, along with Blake Dawson and Clayton Utz, has joined with the Office of the Director of Public Prosecutions NSW (ODPP) and the NSW Bar Association to assist in keeping records confidential when sexual assault complainants' private files are subpoenaed for use in trials.
The project was initiated by the Women's Legal Services, where Bain worked as a solicitor before she moved to Freehills eight years ago. She recalls the ad-hoc and urgent requests the service received for advice.
"One day we got a call from the District Court in Penrith because the judge - to his absolute credit - had actually said to the victim, 'Please go and get some legal advice over the luncheon adjournment' and I was on the train to Penrith the next day," she said.
"The point is, that was 10 years ago. The fact is we really haven't got it right yet and there is absolutely no point in having legislation that is so well thought through if it's not working."
Currently, a privilege exists for sexual assault victims' records to be withheld if it may cause potential harm to disclose them. That also aims to safeguard the broader public interest by maintaining the integrity of counselling. However, this relies on support services recognising that the privilege applies and objecting to the production of documents.
Bain said that counsellors, psychologists and other health professionals are currently handing over documentation to defence lawyers, which is deterring victims seeking assistance. She thinks the privilege needs to be enforced to ensure victims know their rights and can reap the benefits.
"I think we need to do what we can to protect victims of crime. Anything that looks like further systemic abuse of anyone who has gone through that ordeal has to be stopped. We've just go to do better than that," she said.
NSW Director of Public Prosecutions Nicholas Cowdery AM QC said that while the law does protect privilege, defendants are entitled to subpoena a victim's counselling documents if they can prove they are important to their case.
"Victims are rarely in a position to argue privilege, and the ODPP, who acts on behalf of the state, cannot give legal advice to the victim," he said.
The ODPP is co-ordinating the service by circulating requests for help when a subpoena has been issued or is due to be returned to the participating law firms.
- Sarah Sharples