Issues in the practice of defending sexual allegations – Previous representations and confidential communications
Written by Dee Giannopoulos. Solicitor, Doogue + George Defence Lawyers.
As defence lawyers, we regularly prepare and appear in trials involving allegations of a sexual nature. A crucial part of our role is the hunt for evidence that will challenge the credibility and reliability of the complaint evidence we are faced with.
Two of the issues that arise in sexual offence trials are previous representations under the Evidence Act 2008 and confidential communications. Our firm recently invited Richard Edney of the Victorian Bar to speak to us about the importance of identifying and dealing with these issues when defending our clients.
It is important for defence lawyers to turn their minds to the issue of admissibility of previous representations at the earliest possible stage in brief analysis so as to avoid matters being admitted into evidence that should otherwise have been excluded.
As the law currently stands, previous representations are admitted in evidence as not only going to the consistency and reliability of an allegation but also as truth of the facts being asserted.
This is a significant change from the previous common law position of recent complaint, in terms of admissibility, in that at common law there was a need for the complaint to be made when it was fresh in the memory of the complainant. Fresh in the memory was understood to be days or weeks after the event. Further, the evidence was only relevant to the credibility of the complainant and not to the truth of the facts.
The reason for the change in the law is that there is now a greater understanding of the psychology of childhood sexual abuse and it is recognised that complainants in these types of matters may take lengthier periods of time to make a complaint.
There are now three considerations when challenging facts being asserted as fresh in the memory of the person making them and in turn the admissibility of those facts into evidence:
- The nature of the event concerned
- Is the representation general? Does it lack any sort of specific detail?
- Are there any intervening events that could explain the retrieval of the memory?
- The age and health of the person
- The period of time between the occurrence of the fact asserted and the making of the representation.
Recent cases on this topic suggest that a definite time limit cannot be set in terms of when a representation must be made for it to be fresh in the memory. However, the greater the passage of time, logically the freshness in the memory is limited.
From a defence perspective, it is important to consider how general the representation is and also how the representation came to light. If the complainant was asked if person X had done something to them for example and the representation was then given as a response to that question, one would think this undermines the freshness in the memory.
Richard Edney provided us with two further important considerations. The first is that not all previous representations are adverse to the accused. If the previous representation shows that there is an inconsistency in the accounts being given then it may be to the accused’s benefit not to challenge the representation.
Secondly, if defence are successful in having a previous representation excluded on the basis that it is not fresh in the memory, consideration ought to be given to re-introducing the representation in cross-examination to demonstrate the inconsistency of the complaint or to discredit the complainant.
Certain previous representations made by complainants in sexual offence matters fall within the category of confidential communications by virtue of the person the complaint is disclosed to and the context in which it is disclosed.
Confidential communications include representations made to CASA workers, medical practitioners, nurses, psychologists, psychiatrists, counsellors and persons employed by the Department of Health and Human Services.
Because these representations are classed as confidential, application must be made to the court by defence for leave to access the documents within which the representations are contained. The considerations that must be given by a Court when such an application is made are set out in the Evidence (Miscellaneous Provisions) Act 1958.
A Court must not grant leave to access confidential communications unless, on the balance of probabilities, the evidence sought to be accessed would have substantial probative value to a fact in issue and the public interest in preserving the confidentiality of that evidence is outweighed by the it’s probative value in the circumstances.
As Richard Edney rightly puts it, defence lawyers operate under somewhat of a veil of ignorance when it comes to confidential communications in that we don’t know in advance what the communications contain. There is always a risk to our clients that, if we are granted leave to access confidential communications, there may be further representations in support of the complainant’s allegations. It is important to remember that if the Court allows access to the documents to defence, the Crown will also be allowed access. Sometimes the risk does outweigh the reward and so careful consideration must be given.
A key point that Richard Edney made while speaking to us on this topic was that we should turn our minds to issuing subpoenas for Department of Health and Human Services (DHHS) case files with a specific exclusion of any confidential communications. This goes for any organisation of course but we find ourselves particularly dealing with DHHS with respect to these types of matters. The benefit in issuing a subpoena with that specific exclusion is that the material obtained can identify the existence of documents which defence may wish to then apply for under section 32C of the Act. Having the other more general documents and knowing what they contain can assist in bolstering the submissions made to the Court in support of the application for leave to access the confidential communications.
The last point to remember, for the purposes of this blog at least, is that representations made to forensic medical officers (FMO’s) are not confidential communications. The notes of the FMO should always be sought with a view to determining if there are any variations between the notes taken at the time of the examination when compared to the statement that the FMO provides for the brief of evidence.
 LMD v The Queen  VSCA 164; Clay v The Queen  VSCA 269; Pate v The Queen  VSCA 110.