Queensland Consolidated Acts

EVIDENCE ACT 1977 - SECT 14H

14H Deciding whether to grant leave

(1) The court can not grant an application for leave under this subdivision unless the court is satisfied that—

(a) the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and

(b) other documents or evidence concerning the matters to which the communication relates are not available; and

(c) the public interest in admitting the communication into evidence substantially outweighs the public interest in—

(i) preserving the confidentiality of the communication; and

(ii) protecting the counselled person from harm.

(2) In deciding the matter mentioned in subsection (1) (c) , the court must have regard to the following matters—

(a) the need to encourage victims of sexual assault offences to seek counselling;

(b) that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;

(c) the public interest in ensuring victims of sexual assault offences receive effective counselling;

(d) that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;

(e) whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;

(f) that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;

(g) the extent to which the communication is necessary to enable the accused person to make a full defence;

(h) any other matter the court considers relevant.

(2A) For deciding the application, the court may do any of the following—

(a) order a person to produce the protected counselling communication to the court;

(b) consider the protected counselling communication;

(c) make any other order it considers appropriate to facilitate its consideration of the protected counselling communication.

(2B) If the protected counselling communication is produced to the court under subsection (2A) , the court must not disclose it, or make it available to a party to the proceeding, before deciding the application.

(3) Also, for deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted.

(4) If an oral statement is made by the counselled person under subsection (3) , while the statement is being made the court must exclude from the room in which the court is sitting—

(a) anyone who is not an essential person; and

(b) an essential person, if—

(i) the counselled person asks that the essential person be excluded; and

(ii) the court considers excluding the essential person would serve a proper interest of the counselled person.

(5) The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3) .

(6) The court must state its reasons for granting or refusing to grant the application.

(7) If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.

(8) In this section—

"harm" includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation.