Criminal Procedure Act 1986 No 209
299D Determining whether to grant leave
(1) The court cannot grant an application for leave under this Division unless the court is satisfied that:
(a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and
(b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and
(c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.
(2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following:
(a) the need to encourage victims of sexual offences to seek counselling,
(b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship,
(c) the public interest in ensuring that victims of sexual offences receive effective counselling,
(d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person,
(e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias,
(f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy.
(3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted.
(4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider.
(5) The court must state its reasons for granting or refusing to grant an application for leave under this Division.
(6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury.