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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