Western Australian Consolidated Acts Western Australian Consolidated Acts (1) On the hearing of
an application for leave, leave is to be refused by the court if the applicant
does not satisfy the court —
(a) that
the applicant has a legitimate forensic purpose for having leave to disclose
or require disclosure of the protected communication; and
(b) that
other evidence to the same effect as —
(i)
the protected communication; or
(ii)
the contents of the document recording the protected
communication,
as the case may be, is
not available.
(2) In order to
establish that the applicant has a legitimate forensic purpose under
subsection (1)(a) it is not sufficient for the applicant —
(a) to
assert, without proving, one or more of the following —
(i)
that the protected communication discloses a prior
inconsistent statement of the complainant;
(ii)
that the protected communication relates to the
credibility of the complainant or another witness in the criminal proceedings;
(iii)
that the protected communication relates to the
reliability of the testimony of the complainant merely because the complainant
has received or is receiving counselling;
or
(b) to
prove one or more of the following —
(i)
that the protected communication exists;
(ii)
that the protected communication relates to activity that
is the subject of the criminal proceedings;
(iii)
that the protected communication was made close in time
to the activity that is the subject of the criminal proceedings;
(iv)
that the protected communication reveals allegations of
the commission of sexual assault against the complainant by a person other
than the applicant.
(3)
Subsection (2) does not limit —
(a) the
matters which the court can consider in deciding whether the applicant has a
legitimate forensic purpose under subsection (1)(a); or
(b) the
grounds on which the court can decide that the applicant does not have a
legitimate forensic purpose under subsection (1)(a).
[Section 19E inserted by No. 46 of 2004
s. 10.]