The sexual assault communications privilege provisions in ss 298 and 299D of the Criminal Procedure Act 1986 (NSW) are constitutionally valid. When applying the s 299D balancing test, courts must separately assess substantial probative value as a precondition (not a determinative factor), give weight to the public interest in protecting all counselling communications including those pre-dating the alleged offences, and be satisfied that the public interest in protecting confidences is substantially outweighed by the public interest in admitting the evidence. The antiquity of counselling records relative to the alleged offences is relevant to assessing substantial probative value. The court's power to stay unfair proceedings is not limited by the privilege provisions.
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