Last updated 2 February 2026
Persons who are victims of sexual offences often seek counselling or other assistance as part of their recovery process. Counsellors generally keep notes or records of these counselling sessions. In a number of instances, defence lawyers seek to obtain access to a complainant’s counselling records by way of subpoena with a view to using them as a further source of information upon which to base questions to the complainant at the trial (e.g. in an effort to damage the complainant’s credibility by disclosing evidence of drug taking, mental health issues, inconsistent statements or the quality of the complainant’s memory of the offence).
In Queensland, legislation and court Practice Directions have been introduced to protect the confidentiality of counselling records where the material may be irrelevant to the court proceedings.
Admissibility is determined case by case through the Protected Counselling Communications (PCC) procedure, which is a two-stage process. A counselled person (complainant) can waive privilege (i.e. consent) to their sexual assault counselling documents being produced. However, they must seek legal advice before doing so (s 14J Evidence Act).
The Supreme Court of Queensland Practice Direction 16 of 24 outlines the application (pt 2 div 2A Evidence Act 1977 (Qld) (Evidence Act)) and the court process, which essentially requires any party seeking material that could possibly or inadvertently contain counselling records to apply to the court to be given consent to issue subpoenas, or the court can order it themselves to receive material (s 14H(2A) Evidence Act).
A protected counselling communication can be any oral or written communication made in confidence.
The court process involves a law firm and barrister being appointed as lawyers for the counselled person (complainant). They have an important role in the process.
The process is an attempt to balance the rights of individuals to privacy against the accused person’s right to a fair hearing.
Victim impact statements
Under ss 15(1) to 15(9) of the Victims of Crime Assistance Act 2009 (Qld), at the time of sentencing an accused for any sexual offence, the prosecutor may inform the court of the harm that has been caused to a victim of the crime (see also the chapter on Assisting Victims of Crime).
The usual way in which this is done is by the tendering of a Victim Impact Statement (VIS). A VIS is a written statement that is signed and dated, and contains particulars of the harm caused to the victim of the offence. Medical reports, drawings, photographs and other images may be attached to the statement. A VIS may be prepared by the victim or another person (depending on the victim’s age and capacity). It is not mandatory for a victim to prepare a VIS. A lack of a VIS does not lead to the inference that the offence caused little or no harm to the victim.