NSW reforms protect sex assault victims’ counselling notes in court

The NSW Government has announced a sweeping suite of reforms to assist sexual assault survivors in court.

The plans include a $4.8 million package to expand ground rules hearings, along with interim legislative reform to better protect sexual assault victim’s counselling notes while the Government awaits comprehensive safeguarding advice, due back in June 2027.

The new measures announced today will act as an interim protection to stop counselling materials being inspected automatically and will require that all parties seek leave to access records that have been produced to the court.

The reforms will not block all sex offenders and their lawyers from accessing victim counselling notes, but will add an additional step and requirement while the NSW Government awaits recommendations from an independent inquiry due to report back mid next year.

That inquiry will consider broader changes including whether counselling notes should be prohibited from use in all criminal proceedings.

The announcement follows advocacy from victim-survivors, counsellors, doctors, academics and lawyers who joined with Unions NSW and the Australian Services Union as part of news.com.au’s Keep Counselling Confidential campaign.

“These commonsense reforms will go a long way towards making it less traumatising for sexual assault complainants to seek justice,” said NSW Attorney-General Michael Daley.

“These reforms are an important part of the wider work we are doing to support victim-survivors, through justice system navigators and in healing and recovery,” said Minister for Women, Jodie Harrison.

As part of the Government’s suite of announcements, the Attorney-General has also announced a $4.8 million ‘ground rules hearing’ pilot program.

The pilot is set to operate at Parramatta, Wollongong and Dubbo District Courts from 2027 until 2030.

A ‘ground rules hearing’ occurs pre-trial, and is an opportunity for the judge or magistrate to set strict limits on how vulnerable witnesses can be questioned during sexual assault trials.

This can include setting clear rules about question style, tone and language that defence can use during cross examination, including banning confusing, aggressive or misleading questions, or ‘double-negative’ tag questions, such as: “You weren’t unhappy, were you?”

A judge can also consider an expert report to determine what supports should be available to the vulnerable witness, rest breaks, any cognitive or age-related communication needs they have, what topics, boundaries or types of evidence can be discussed, and other practical courtroom considerations such as whether the witness would benefit from visual aids, including timelines.

In NSW, ground rules hearings became standard in sexual assault trials involving children in 2023 following news.com.au’s Justice Shouldn’t Hurt campaign, which featured the Milthorpe family.

Daughters Rose and Pippa Milthorpe were just 7 and 11 years old respectively when they were subjected to a horrific court process in 2016, which they said was “as traumatic as the abuse itself”.

Michelle Milthorpe, Rose and Pippa’s mother, said she was delighted that ground rules hearings are now being piloted for adult survivors of sexual abuse in NSW.

“We know from evidence that ground rules hearings ensure traumatised people’s needs are being met which allows them to participate more equitably in the justice process,” she said.

“This gives survivors the opportunity to give their best evidence while still safeguarding the rights of the accused for a fair trial.

“I think its really important that people are now recognising that trauma impacts on victims, whether they be children or adults.”

Experts caution against police recording

As part of today’s announcement, the NSW Government has also revealed plans to have police video record interviews with sexual assault victims, with recordings then used in court as the evidence-in-chief interview.

According to the government, this will help ensure victims “do not need to tell their story multiple times”.

But the suggestion has been slammed by academics and advocates, who are cautioning survivors not to allow police to video record such interviews.

Dr Rachael Burgin, senior lecturer in criminal justice at Swinburne University, said the proposal is “horrific”.

“This is the worst possible outcome, in my opinion,” she said.

Dr Burgin recently analysed 389 police case files related to sexual assault in the ACT, where it is standard practice for police to video record victim interviews.

Her report found that police lack the skill and training to replace the role of the prosecution and that the practice led to a range of perverse outcomes for victim-survivors.

“I would advise victims not to allow police recording and seek legal advice,” said Dr Burgin.

“The theory behind the practice is that if police video record it, it’s one less time the victim will have to tell their story, and that makes sense.

“But when a victim goes to a police station, many are still in complete shock, or may be experiencing self-blame and shame. They often have no idea what is and is not important from an investigative perspective, so they leave things out.

“They are often still piecing together what has happened, and may not be ready to disclose everything all in one go because they don’t feel stable enough or ready yet. They may be trying to build trust and rapport with the officer, and gather information about the process and what it will entail.

“This is not the appropriate time to do an evidence-in-chief interview and the government should not be allowing police, who have no training as a lawyer, to do this. This role must be done by a lawyer.”

Jacinta Masters, campaign lead for Fair Agenda, says that “using a police interview as evidence-in-chief risks conflating the investigation with the giving of evidence, which could result in poor quality evidence”.

“If cross-examination and re-examination still take place at trial, victim-survivors can still be required to wait years before they have completed giving their evidence. That can mean enduring prolonged anxiety and uncertainty about the prospect of having to face the accused and give evidence in court,” she said.

Instead, Fair Agenda is campaigning for survivors to be offered the opportunity to have the prosecution and defence examine and cross-examine them, prior to the trial so that the victim’s role in the process can be completed earlier and healing can commence. A recording would then be played to the jury at the formal trial.

The NSW Government has clarified that victim-survivors will not be forced to have their interviews with police recorded, and the decision will remain optional.

Dr Burgin says that, in the ACT, the practice is also “legally optional in theory, but police have interpreted this as mandatory”.

“It has become standard practice. Our research found that police will not investigate unless and until that recorded interview was conducted.”

Dr Burgin is urging the NSW Government to reconsider and review the evidence of how the practice works elsewhere.

“Evidence shows the highest point of attrition occurs at the hands of police during the police process. So giving more power to police processes, that we know are broken, will only lead to higher attrition rates, more traumatic experiences for victims, poorer case progression, and worse justice outcomes,” she said.

Nina Funnell is a Walkley Award winning freelance journalist.