EVIDENCE ACT 1929 - SECT 67F
EVIDENCE ACT 1929 - SECT 67F
67F—Evidence of protected communications
(1) Evidence of a
protected communication—
(a) is
entirely inadmissible in committal proceedings; and
(b)
cannot be admitted in other legal proceedings unless—
(i)
the court gives permission to a party to the proceedings
to adduce the evidence; and
(ii)
the admission of the evidence is consistent with any
limitations or restrictions fixed by the court; and
(c) is
not liable to discovery or any other form of pre-trial disclosure.
(2) 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—
(a) the
applicant has a legitimate forensic purpose for seeking permission to adduce
the evidence; and
(b)
there is an arguable case that the evidence would materially assist the
applicant in the presentation or furtherance of his or her case.
(3) 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:
(a) to
provide written answers to questions;
(b) to
produce written materials relating to the relevant protected communications;
(c) to
appear for oral examination.
Exceptions—
1 If the counsellor or therapist who provided the
counselling or therapy is
an employee, answerable to another (the "principal") in the organisation in
which the counsellor or therapist is employed, an order under this subsection
is to be addressed to the principal unless the court is satisfied that there
are good reasons for not taking that course in the circumstances of the
particular case.
2 An order requiring a person to appear for oral
examination is not to be made unless the court is satisfied that the
examination cannot otherwise be effectively conducted.
(4) The following
provisions govern the conduct of a preliminary examination:
(a) the
preliminary examination is to be conducted—
(i)
in the absence of the jury (if any); and
(ii)
in a room closed to the public; and
(b) 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
(c) no
record of the preliminary examination is to be available for public access.
(5) In deciding
whether to grant permission to adduce evidence of a protected communication,
the court is to weigh—
(a) the
public interest in preserving the confidentiality of protected communications;
against—
(b) the
public interest in preventing a miscarriage of justice that might arise from
suppression of relevant evidence.
(6) In weighing the
above considerations, the court is to have regard to—
(a) 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;
(b) the
probative value of the evidence and whether its exclusion may lead to a
miscarriage of justice;
(c) 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;
(d)
whether admission of the evidence is being sought on the basis of a
discriminatory belief or bias;
(e) 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.
(7) 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.
(8) If the court
decides to grant permission to adduce evidence of a protected communication,
it may make ancillary orders—
(a) to
prevent further publication or dissemination of the evidence; or
(b) for
any other purpose the court considers appropriate.