Evidence (Miscellaneous Provisions) Act 1991

After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that—

for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or

for a criminal proceeding—the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.

To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document.

In making a decision under subsection (1), the court must have regard to—

for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and

the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and

the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and

whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and

the likelihood that disclosure of the protected confidence will affect the outcome of the case; and

whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and

whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and

the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.

Subsection (3) does not limit the matters to which the court may have regard.

Leave under this section may be given subject to conditions.

If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 79G, and may make the orders about the disclosure of the evidence (other than a statement taken under section 79G (3)) it considers appropriate.