32DRestriction on granting leave

32D Restriction on granting leave

S. 32D(1) amended by No. 2/2006 s. 30(1)(a).

(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—

S. 32D(1)(a) substituted by No. 2/2006 s. 30(1)(b).

(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

S. 32D(1)(c) amended by No. 38/2022 s. 86(1).

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

S. 32D(1A) inserted by No. 38/2022 s. 86(2).

(1A) Additionally, in a criminal proceeding, a court must not grant leave described in subsection (1) unless it is satisfied that—

(a) the protected person—

(i) is aware of the application for leave; and

(ii) has had a reasonable opportunity to consider obtaining legal advice about the application; or

(b) the prosecuting party has ensured that all reasonable steps to locate the protected person were taken, but the protected person has not been located; or

(c) the protected person has consented in writing to not being notified about an application for leave under section 32C(1); or

(d) the protected person has already been given notice under section 32CD—

(i) in respect of the same confidential communication or protected health information as that to which the application relates; and

(ii) in the same proceeding as that in which the application is made.

S. 32D(2) substituted by No. 2/2006 s. 30(2).

(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—

S. 32D(2)(a) amended by No. 38/2022 s. 86(3).

(a) the likelihood, and the nature or extent, of harm that would be caused to the protected person 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;