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During court

During the court process there are special arrangements and other allowances, to assist victims of sexual assault to provide evidence.

Special arrangements to give evidence

It can be particularly difficult for victims of sexual assault to provide evidence for the court and, for this reason, special arrangements may be made.

Special arrangements include the possibility of:

  • using closed circuit television (CCTV) in a remote witness room, rather than being in the courtroom itself
  • using a screen in court
  • having a support person with you while you give your evidence
  • having the court closed to the public during your evidence
  • having your evidence recorded so that you only have to give evidence and be cross-examined once.

To enable some of these arrangements the court room has specific technology and support services.

The Witness Assistance Service or NSW Health Sexual Assault Service will usually organise a visit with you before you give evidence.

Subpoenas and counselling records

Counsellors provide a safe place for victims of sexual assault to disclose their concerns in relation to the impact of trauma they have experienced. This can often involve discussing highly sensitive and private information about themselves.

In NSW a law exists that generally keeps information confidential between a counsellor and a person who has been sexually assaulted, particularly in relation to any subpoena of counselling records.

This law creates a limited privilege to keep communications made between a counsellor and a person who has been sexually assaulted confidential. This is called the 'sexual assault communications privilege'.

Under the sexual assault communications privilege in certain courts, material generally is not to be produced if it would disclose what is called a 'protected confidence' or the contents of document recording a protected confidence.

Women's Legal Services NSW publish a booklet called Counsellors and Subpoenas which provides a practical guide for counsellors served with subpoenas. For copies please call: (02) 8745 6900.

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What is a vulnerable witness?    

Extra support is provided to 'vulnerable people', which includes children under 16 years of age and people with a cognitive impairment.

A person has a cognitive impairment if they require supervision or social habitation in connection with daily life activities, as detailed in the Criminal Procedure Amendment (Vulnerable Persons) Act 2007, as a result of one or more of the following:

  • an intellectual disability

  • a developmental disorder (including an autistic spectrum disorder)

  • a neurological disorder

  • dementia

  • a severe mental illness.

  • a brain injury.

Extra support in court for a vulnerable person may include the following:

  • Vulnerable people normally only have to give evidence once.

  • If you are a vulnerable person, you no longer have to appear in the courtroom in person. A vulnerable person can have a pre-recorded statement played to the court as evidence. Further evidence, such as cross-examination, can be given in a private room away from the courtroom, and transmitted to the courtroom via a TV screen.

  • A support person is allowed to be with a vulnerable person during the trial.

  • Arrangements can be made through the court if vulnerable people need help with communication

Recordings of interviews by children can be used as evidence, even after they turn 16 years old, regardless of the child's age at the time of the hearing.

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Consent consideration      

Sexual assault occurs when someone is unable to or does not give consent. Consent occurs when a person freely and voluntarily agrees to sexual intercourse.

Consent may be addressed during the court process.

For example, the 'objective fault test' may be used in court in relation to consent. Under certain circumstances, the court may require the accused to say what steps they took to ensure consent was given. It is not appropriate for the accused to just assume consent.

If you have queries about this subject, speak with a counsellor or lawyer.