Women's Legal Services NSW and law firms Blake Dawson,
Clayton Utz and Freehills, welcome the reforms to Sexual Assault
Communication Privilege which have been passed by the NSW
Parliament this week.
These reforms represent the culmination of a two-year Pro Bono
project by these four organisations, in conjunction with the Office
of the Director of Public Prosecutions, to protect the rights of
victims of sexual assaults during the criminal trial process.
Sexual Assault Communications Privilege
("SACP") prevents defendants in criminal
trials from being able to trawl through a victim's confidential
counselling records. The policy behind SACP is to protect the
confidentiality of sexual assault counselling, so as to encourage
sexual assault victims to seek and stay in counselling, and to make
victims feel more confident about being able to report sexual
assaults. The reforms passed by Parliament ensure that the victim
is made aware of her or his right to oppose the production of their
counselling records in Court, and that the Court recognises SACP as
an essential element in the criminal trial process.
Until last year, most victims had no knowledge of their SACP
rights, and no capacity to enforce those rights before the Court.
Since February 2009, Blake Dawson, Clayton Utz and Freehills,
Women's Legal Services NSW and members of the NSW Bar
Association, have represented more than 90 victims of sexual
assault on a pro bono basis under a SACP Project before the
District and Local Courts at the Downing Centre and Parramatta. The
experiences of the Project informed the amendments which have now
been made to the Criminal Procedure Act.
The Project demonstrated that legal representation for victims
makes a significant difference in preventing the disclosure of
privileged documents. In 91% of cases where documents returned
under subpoena contained protected confidences, the complainant was
able to assert the Privilege successfully.
A pro bono model is not a long-term solution to providing a
comprehensive and sustainable service to the hundreds of victims of
sexual assault before NSW Courts each year. Blake Dawson, Clayton
Utz, Freehills and Women's Legal Services therefore also
welcome the announcement by the Attorney-General of $4.4 million of
funding over 4 years for a specialist victims' advocacy
service, which will ensure that victims can receive advice and
representation in asserting SACP.
David Hillard, Pro Bono Partner at Clayton Utz said on behalf of
the Project partners, "these reforms have been secured
through the perfect example of a pro bono project - an identified
legal access problem has been tackled collaboratively, reformed
through legislation, and with the State now picking up
responsibility for future representation of victims. Our
organisations started this project to highlight why SACP was not
working properly, to get those problems fixed, and to ensure that
government-funded services were available for victims to assert
their rights. It is so pleasing to see collaboration between
private lawyers working pro bono, the community legal sector and
the DPP, bring real change to this issue".
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