Victorian Consolidated Legislation

Evidence Act 1958 - SECT 32D

Restriction on granting leave

32D. Restriction on granting leave





(1) A court must not grant leave to compel the production of, to produce or to
adduce protected evidence unless it is satisfied, on the balance of
probabilities, that-

   (a)  the evidence will, either by itself or having regard to other evidence
        produced or adduced or to be produced or adduced by the party seeking
        leave, have substantial probative value to a fact in issue; and

   (b)  other evidence of similar or greater probative value concerning the
        matters to which the protected evidence relates is not available; and

   (c)  the public interest in preserving the confidentiality of confidential
        communications and protecting a protected confider from harm is
        substantially outweighed by the public interest in admitting, into
        evidence, evidence of substantial probative value.

(2) Without limiting the matters that the court may take into account for the
purposes of subsection (1)(c), the court must take into account-

   (a)  the likelihood, and the nature or extent, of harm that would be caused
        to the protected confider if the protected evidence is produced or
        adduced;

   (b)  the extent to which the protected evidence is necessary to allow the
        accused to make a full defence;

   (c)  the need to encourage victims of sexual offences to seek counselling
        and the extent to which victims may be discouraged to do so, or the
        extent to which the effectiveness of counselling may be diminished, if
        the protected evidence were produced or adduced;

   (d)  whether the party seeking to compel the production of or to produce or
        adduce the protected evidence is doing so on the basis of a
        discriminatory belief or bias;

   (e)  whether the protected confider objects to the disclosure of the
        protected evidence;

   (f)  the nature and extent of the reasonable expectation of confidentiality
        and the potential prejudice to the privacy of any person.

(3) A court may grant leave to compel the production of, or to produce or
adduce, part of-

   (a)  a confidential communication; or



   (b)  the contents of a document recording a confidential communication-

and, if so, that part of the document may be made available, or that part of
its contents disclosed, in any manner that the court thinks fit to the party
seeking to compel its production or to produce or adduce it in evidence.

(4) The court must state its reasons for giving or refusing to give leave
under this section.

(5) If leave is refused under this section, that fact must not be referred to
in the presence of the jury, if any.