Sexual assault communications privilege

Acknowledgement: The Judicial Commission gratefully acknowledges the assistance of her Honour Judge Christine Mendes and Robyn Gilbert, Senior Solicitor, Sexual Assault Communications Privilege Service, Legal Aid NSW

[9-000] Legislative reform

Last reviewed: August 2025

The sexual assault communications privilege (SACP) was created in 19971 to protect counselling communications of victims and complainants. In 1999 Parliament amended the law in response to a narrow interpretation of the SACP by the NSW Court of Criminal Appeal (NSWCCA).2 The amendments expanded the scope of records caught by the privilege and incorporated the SACP provisions into the Criminal Procedure Act 1986 (NSW) (CPA). In 2002 the SACP provisions were further amended3 as a result of the decision in R v Lee.4 In 2010 further reforms were made5 following a pro-bono pilot program.6 These amendments strengthened the privilege by enhancing victims’ participation in decisions affecting the confidentiality of their counselling and therapeutic records.

Presently, the provisions are in Ch 6, Pt 5, Div 2 of the CPA and require leave to:

(1) 

issue a subpoena requiring the production of documents recording protected confidences,

(2) 

produce such documents to the court, and

(3) 

adduce evidence that would disclose a protected confidence: s 298.

Section 298A prohibits a person from compelling a victim or alleged victim from identifying their counsellor.

The protected confider (usually, the complainant) has standing if a document is sought to be produced or evidence is sought to be adduced that would disclose a protected confidence: s 299A. An applicant for leave must give notice of such an application (s 299C), and a court must ensure that the protected confider has had a reasonable opportunity for legal advice: s 299. Since 2011, public funding has been available for legal representation for protected confiders: see [9-600] Sexual Assault Communications Privilege Service, below.

A court can, in certain circumstances, consider and disclose documents: s 299B.

Section 299D is “a critical provision”7 which sets out the statutory test for the granting of leave under the Division.

There is an absolute prohibition on adducing evidence of, or seeking to compel, the production of material containing a protected confidence in preliminary criminal proceedings: s 297.

The privilege is available in all criminal proceedings (not only proceedings regarding sexual assault), proceedings for apprehended violence orders (AVO) and limited civil proceedings: s 126H Evidence Act 1995 (NSW).

[9-100] Defining a protected confidence

Last reviewed: August 2025

The SACP applies to a “protected confidence” broadly defined in s 296(1) CPA as “a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence”. A “counselling communication” is defined in s 296(4) as a communication:

(a) 

made in confidence by a person (the “counselled person”) to another person (the “counsellor”) who is counselling the person in relation to any harm the person may have suffered, or

(b) 

made in confidence to or about the counselled person by the counsellor in the course of that counselling, or

(c) 

made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or

(d) 

made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person.

In assessing a claim of privilege, it is necessary to determine whether there existed a “counselling communication” within one of the four categories established by s 296(4).8 The party claiming that the documents in question are privileged carries the onus or burden of establishing that proposition.9

In Decision Restricted,10 the Court observed that while the definition in s 296 is broad, it relates to the communications themselves.11 It does not catch the mere fact or existence of counselling or the nature or kind of therapy. However, it is possible that information disclosing the nature of the therapy is communicated only through a “protected confidence”.

The term “harm” is defined in s 295(1) to include “actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)”. It has been suggested that “harm” in s 296(4) implies that the harm in question is that suffered by the person as a consequence of the alleged offence12 but courts have generally adopted the broader interpretation of harm.13

A person who “counsels” for the purposes of s 296 has “undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and listens to and gives verbal or other support or encouragement to the other person, or advises, gives therapy to or treats the other person, whether or not for fee or reward.”: s 296(4).

Some examples of protected communications are:

  • counselling notes

  • medical/clinical notes

  • mental health records, including hospital and GP records

  • drug and alcohol records

  • financial counsellor records

  • letters and referrals between health professionals

  • emails from a school counsellor to a parent or teacher

  • social worker reports held by Centrelink or the Department of Housing.14

It is important in the individual case to consider whether the person was acting as “a counsellor”. In ER v Khan,15 communications were found not to be protected because Joint Investigation Response Team and Department of Family and Community Services officers, although holding counselling qualifications, were performing investigative functions and were not acting as “counsellors” to the complainant when the relevant communications were made.

Counselling communications may be protected that were made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or were not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence: s 296(2).

[9-200] Purpose

Last reviewed: August 2025

When introducing the privilege in 1997, the then Attorney General indicated that the purpose of the privilege was to ensure that victims of “the grave trauma of sexual assault” can access confidential counselling and thereby be assisted in their recovery. He said:

[T]he knowledge that details of a victim’s conversations with her therapist may be used against her in subsequent criminal proceedings can inhibit the counselling process and undermine its efficacy.16

The 2010 amendments extended the scope of the privilege, and the then Attorney General commented that:

The SACP is designed to limit the disclosure of protected confidences at the earliest point possible: for a complainant who has gone to a counsellor to discuss the sexual assault, it is little comfort to her or him if the documents are not to be adduced [used] in evidence at the trial if they have already unnecessarily been disclosed to the defence by an order of the court. The privilege is not just designed to prevent the unnecessary adduction of evidence of protected confidences before a jury, but is designed to prevent the inappropriate subpoena of such confidences in the first place, and then the inappropriate granting of access to them.17

The SACP recognises the public interest in victims and complainants having access to confidential counselling both as a therapeutic response for the individual and to prevent the disclosure of such records from deterring other complainants from reporting sexual violence: see KS v Veitch (No 2)18 in which the NSWCCA stated while discussing the SACP:

The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance19

…

The deterrent effect on others through a perception that disclosure is readily achieved, may undo the purpose of the statutory privilege.20

[9-300] Applications for grant of leave

Last reviewed: August 2025

A decision concerning whether or not to issue a subpoena cannot be made until the court has considered the matters listed in ss 299C and 299D.21 Non-compliance will result in an error of law and the potential invalidity of the grant of leave to issue a subpoena and the subpoena itself. If left to go unchecked, errors of law can result in a mistrial of the accused and may cause substantial harm to others, including the protected confider. It is important to consider how the specific terms of the legislation apply in the circumstances of an individual case; counsel also have a responsibility to assist in this regard.22

Section 299D(1) provides that a court cannot grant an application to issue a subpoena to compel production of a counselling communication unless it is satisfied that:

(a) 

the document or evidence will have substantial probative value as evidence in the case.23

The assessment of “substantial probative value” must be concerned with material that is ultimately admissible.24

In Decision Restricted25 the Court considered the word “will” in the phrase “will … have” and found that it does not present a hurdle as high as “realistic inevitability”, especially when deciding whether leave should be granted to seek production of documents under subpoena.26 However, “will” it was said “clearly connotes something more than a possibility or being ‘more likely than not’.”27

In BJS v R,28 the NSWCCA dismissed an appeal from a decision of the District Court in applying the SACP, agreeing with the trial judge that the probative value of counselling notes in issue was of a very low order and could not be characterised as having “substantial probative value”.

In conducting an assessment of “substantial probative value”, the Court should examine each document in question and not approach the task by looking at the documents in their “totality”.29 In JK v R,30 the NSWCCA found that the District Court judge did not properly apply the s 299D(1) test by failing to examine documents produced following leave having been earlier granted to issue a subpoena. The Court held that because of the centrality of the complainant’s credibility and reliability to the proceedings, examining the documents with knowledge of the issues in the trial was the only way in which the Court could determine whether the documents had probative value and “substantial probative value”.

In Rohan v R,31 the NSWCCA agreed with the finding of a District Court judge that counselling records did not have “substantial probative value” for the purposes of s 299D(1)(a). The application for leave under s 298(1) was based upon the prospect that the complainant may have failed to take up an opportunity during counselling to complain about sexual abuse by the applicant. Given such evidence would invoke a warning under s 294 to the effect that absence of complaint does not necessarily indicate a false allegation and that good reasons may exist to explain it, the documents would have no “substantial probative value”. However, in Decision Restricted32 the Court observed33 that directions to be given to a jury about delay in complaint (s 294) and differences in complaint (s 293A) are not relevant to a proper assessment of the probative value of the evidence. The Court went on to note that evidence that will have a substantial probative value if accepted may nevertheless attract a strong warning.

(b) 

other documents or evidence concerning the matters to which the protected confidence relates are not available.

This limb of the test is designed to prevent access to counselling communications where relevant material is already available from another source such as the complainant’s statements to police.34

(c) 

the public interest in disclosure substantially outweighs the public interest in non-disclosure.

In determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the matters listed in s 299D(2).

This balancing exercise has been described as imposing a “significant constraint” requiring consideration of two competing public interests with access being granted only if the interest in admitting the documents “substantially outweighs” the public interest in protecting the confidences.35 If the material casts doubt on the veracity or reliability of the complainant, this will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused.36

[9-400] Discretionary power under s 299B to inspect (“consider”) the documents

Last reviewed: August 2025

There is an available discretion under s 299B for a judge to compel the production of documents in order to determine a question of leave to issue a subpoena under s 298(1).37 Section 299B(1) empowers a court to inspect (“consider”) the documents to identify any protected confidences and to evaluate the probative value of the evidence. Section 299B(4) provides a broad power, including to order production of the document to the Court for the purpose of facilitating its consideration.

The s 299D test does not apply to the power under s 299B “to consider the document or evidence”. Error was recently found in a District Court judge applying the s 299D(1)(a) test to the question that arose under s 299B(1) and (4).38

It has been observed in relation to client legal privilege, that a court may make orders allowing evidence to be given in confidence under such conditions as to preserve the claimed privilege.39 Section 299B(4) would similarly permit such a course to be taken when determining a question of sexual assault communications privilege.40 Without evidence that addresses the facts said to found the privilege, the task of a judge will be essentially an interpretative exercise based wholly upon an examination of each document in question.41 It has been found to be an error to approach the task in a global way.42

The NSWCCA recently stated in JK v R43 that:

It is difficult to envisage how a judge can decide whether a document to which access is sought contains a protected confidence, or has substantial probative value, and to decide the matters required to be determined by s 299D, if the judge does not examine the documents.44

Less than a month later, and with reference to JK v R, the NSWCCA, in a differently constituted bench, clarified that they did not understand the Court in JK v R to suggest that documents must be inspected in every case45 and that to do so would be contrary to what Basten JA said in KS v Veitch (No 2)46 and what R A Hulme J said in Rohan v R.47 However, in Decision Restricted the Court accepted that “there likely will be many cases where inspection of the documents may be important, if not determinative, in considering whether the documents or evidence in question has “substantial probative value”.48

[9-500] Scope of privilege

Last reviewed: August 2025

The privilege is expansive and applies in all criminal cases, including pre-trial and interlocutory proceedings and AVO proceedings in NSW. It also applies in some civil cases,49 but only where the SACP has been upheld in a criminal proceeding and the civil case is about the same or similar acts. The SACP does not apply in family law nor in child protection cases.

For a detailed examination of the scope of the SACP provisions and issues arising from its construction, see “Use of the sexual assault communications privilege in sexual assault trials”50 and “Sexual assault communications privilege — an update”.51

See also “Sexual assault communications privilege” at [5-500]ff in the Criminal Trial Courts Bench Book for further discussion.

[9-600] Sexual Assault Communications Privilege Service

Last reviewed: August 2025

The Sexual Assault Communications Privilege Service (SACPS) was established at Legal Aid NSW in late 2011. It provides free legal representation for sexual assault victims in privilege matters in NSW. All sexual assault victims, whether child or adult, who need legal help about the privilege can access a free lawyer. SACPS lawyers have been specially trained and can go to any criminal court in NSW. SACPS also provides education, legal and policy advice to the health, community and welfare sectors, as well as police and the legal profession, to promote awareness of the privilege.

Legal Aid NSW has produced a Guide for people working in a health or welfare role in NSW who keep confidential client records, which focusses on protections relevant to subpoenas, including the sexual assault communications privilege.52

On 22 July 2025 the Legal Aid NSW Board approved a new policy to make legal aid available to a complainant in sexual assault proceedings to object (in whole or in part) to a subpoena seeking the production of their personal records. Personal records may include diaries, journals, mobile phone or access to electronic evidence such as emails, social media or chat application history.53


1Evidence Amendment (Confidential Communications) Act 1997 (NSW) which amended the Evidence Act 1995 (NSW) (commenced 1/1/1998).

2See R v Young (1999) 46 NSWLR 681.

4R v Lee (2000) 50 NSWLR 289.

5By the Courts and Crimes Legislation Further Amendment Act 2010 (commenced 7/12/2010) which inserted new ss 297–299D into the CPA.

6The program was run cooperatively by the Women’s Legal Services (NSW), the NSW Bar Association, the NSW Office of the Director of Public Prosecutions, and a number of commercial law firms.

7Decision Restricted [2025] NSWCCA 55 at [21].

8ER v Khan [2015] NSWCCA 230 at [74].

9ibid at [84].

10Decision Restricted [2025] NSWCCA 55.

11ibid at [52].

12See KS v Veitch (No 2) (2012) 84 NSWLR 172 at [16]–[19].

13NAR v PPC1 [2013] NSWCCA 25 at [22]. See also R v Sigadula [2024] NSWDC 664.

14These examples are given in “Subpoena Survival Guide”, p 26, accessed 23/7/2025.

15ER v Khan [2015] NSWCCA 230.

16The Hon Jeff Shaw, Second Reading Speech, Evidence Amendment (Confidential Communications) Bill 1997, NSW, Legislative Council, Debates, 22/10/1997, pp 1120–1121.

17The Hon John Hatzistergos, Second Reading Speech, Courts and Crimes Legislation Further Amendment Bill 2010, NSW, Legislative Council, Debates, 24/11/2011; cited in full in R v Bonanno; Ex p Protected Confider [2020] NSWCCA 156 at [14].

18KS v Veitch (No 2) (2012) 84 NSWLR 172.

19ibid at [34].

20ibid at [77].

21R v Bonanno; Ex p Protected Confider [2020] NSWCCA 156 at [12].

22ibid at [13].

23ibid at [87], [88].

24KS v Veitch (No 2) (2012) 84 NSWLR 172 at [37].

25Decision Restricted [2025] NSWCCA 55.

26ibid at [32].

27ibid.

28BJS v R [2013] NSWCCA 123 at [171].

29PPC v Williams [2013] NSWCCA 286 at [67], [69].

30JK v R [2025] NSWCCA 44.

31Rohan v R [2018] NSWCCA 89.

32Decision Restricted [2025] NSWCCA 55.

33ibid at [79].

34KS v Veitch (No 2) (2012) 84 NSWLR 172 at [33].

35ibid at [34].

36ibid.

37Rohan v R [2018] NSWCCA 89 at [58], [67]; KS v Veitch (No 2) (2012) 84 NSWLR 172 at [28].

38Decision Restricted [2025] NSWCCA 55 at [75].

39ER v Khan [2015] NSWCCA 230 at [108]; Kennedy v Wallace (2004) 142 FCR 185.

40ER v Khan [2015] NSWCCA 230 at [108].

41ibid at [109], [110].

42PPC v Williams [2013] NSWCCA 286 at [67], [69].

43JK v R [2025] NSWCCA 44.

44ibid at [24].

45Decision Restricted [2025] NSWCCA 55 at [26].

46KS v Veitch (No 2) (2012) 84 NSWLR 172 at [23], [28].

47Rohan v R [2018] NSWCCA 89 at [82].

48ibid at [27].

49The privilege applies to communications which were privileged under the SACP in criminal proceedings and the civil proceedings relate to substantially the same issues as the criminal proceedings: Evidence Act 1995 (NSW), s 126H.

50I Nash, “Use of the sexual assault communications privilege in sexual assault trials” (2015) 27(3) JOB 21.

51R Gilbert “Sexual assault communications privilege — an update” (2025) 37(1) JOB 1.

52Legal Aid NSW, Subpoena Survival Guide, accessed 23/7/2025.