Evidence Act 1929

Evidence of a protected communication—

is entirely inadmissible in committal proceedings; and

cannot be admitted in other legal proceedings unless—

the court gives permission to a party to the proceedings to adduce the evidence; and

the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and

is not liable to discovery or any other form of pre-trial disclosure.

On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that—

the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and

there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.

For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:

to provide written answers to questions;

to produce written materials relating to the relevant protected communications;

to appear for oral examination.

The following provisions govern the conduct of a preliminary examination:

the preliminary examination is to be conducted—

in the absence of the jury (if any); and

in a room closed to the public; and

the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and

no record of the preliminary examination is to be available for public access.

In deciding whether to grant permission to adduce evidence of a protected communication, the court is to weigh—

the public interest in preserving the confidentiality of protected communications;

the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.

In weighing the above considerations, the court is to have regard to—

the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;

the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;

the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;

whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;

the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.

The court is not to grant permission to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.

If the court decides to grant permission to adduce evidence of a protected communication, it may make ancillary orders—

to prevent further publication or dissemination of the evidence; or

for any other purpose the court considers appropriate.