Victorian alleged sexual assault victims will have the right to defend their confidential communications being aired in court under new amendments to be introduced to state parliament by Justice Party MP Stuart Grimley.
The amendments to the Justice Legislation Amendment Bill 2022, to be debated in the upper house on Thursday, were recommended in two separate inquiries by the Victorian Law Reform Commission in 2016 e 2021.
Grimley, a former police officer, said confidential communications – such as discussions with a medical practitioner or counsellor – are often obtained by defence lawyers to undermine a victim’s credibility, including by showing a history of mental health issues as a basis as to why they have made a complaint.
He said victims can often feel embarrassed, re-traumatised and betrayed by the legal system when their personal information, including disclosures that may not be relevant to the case, are heard before a courtroom or are used in cross-examination.
“These amendments will make it non-negotiable for a victim to be notified for applications to access or use their confidential communications,” Grimley said.
“They will further allow for the victim to tell the court about why that access or use would be harmful to them.
“It is a disgrace that this was recommended six years ago by the VLRC and victims are still waiting. It shouldn’t be delayed any further and that is why I have introduced the changes as an amendment to a government bill.”
Under the Evidence (Miscellaneous Provisions) Act, police are required to notify a victim of an application to access their confidential communications.
But the VLRC’s 2016 inquiry into the role of victims of crime in the criminal trial process, e il 2021 inquiry into improving the way the justice system responds to sexual offences, were told by victims, support groups and Victoria Police that this was not occurring regularly.
In its submission to the 2016 inchiesta, Victoria Police said “there is no obligation to serve the notice on the victim or for the victim to be informed that the application is being made”.
No victim consulted by the commission was aware of their entitlement.
A woman named Tabitha, told the 2021 inquiry her mental health history was subpoenaed and “used against [sua]".
“I had disclosed a previous sexual assault to my psychologist for the first time just two days before the assault which was the subject of the trial,” Tabitha told the inquiry.
“The defence lawyer kept questioning me about this as if it was no coincidence but rather, an attempt to get more attention/sympathy. It felt like I was going through the assault all over again, but this time I was being mocked.
“There was no one standing up for me and asking about the relevance of my mental health history. Surely, given the prevalence of mental health issues in our society, many people with these issues are assaulted … I felt like I was the criminal and I was the one on trial.”