Western Australian Numbered Acts Western Australian Numbered Acts (1) After
section 19 the following heading and sections are inserted —
“
Sexual assault communications privilege
19A. Terms used in these provisions
(1) In this section
and sections 19B to 19M —
“application for leave” means an
application for leave to disclose or require disclosure of a protected
communication in, or in connection with, any criminal proceedings;
“counselling communication” means a
communication —
(a) made
in confidence by a person upon or in respect of whom sexual assault was
committed or is alleged to have been committed (the
"complainant") to another person (the
"counsellor") who is counselling the complainant in relation to any harm the
complainant may have suffered;
(b) made
in confidence to or about the complainant by the counsellor in the course of
the counselling process;
(c) made
in confidence about the complainant by a support person in the course of the
counselling process; or
(d) made
in confidence by or to the counsellor to or by another person who is
counselling, or has at any time counselled, the complainant,
and includes a
communication made through an interpreter;
“counsels” has the meaning given to
that term in subsection (2);
“disclose” a protected communication
means to disclose, or adduce or produce anything that would
disclose —
(a) the
protected communication; or
(b) the
contents of a document recording the protected communication;
“harm” includes actual physical bodily
harm, financial loss, stress or shock, damage to reputation or emotional or
psychological harm (such as shame, humiliation and fear);
“protected communication” means a
counselling communication made by, to or about a complainant and
includes —
(a) a
counselling communication made before the commission, or alleged commission,
of sexual assault;
(b) a
counselling communication not made in connection with sexual assault or
alleged sexual assault or any condition arising from sexual assault or alleged
sexual assault; and
(c) a
counselling communication made before the protection provisions were inserted
into this Act;
“protected person” , in relation to a
protected communication, means —
(a) the
complainant;
(b) any
person who made the protected communication; or
(c) an
interpreter through whom the protected communication was made;
“require disclosure” of a protected
communication includes —
(a) to
require (whether by the issue of a subpoena or any other process or procedure)
the production of a document recording the protected communication; and
(b) to
seek an order of the court that will, if made, result in the disclosure of the
protected communication or the production of a document recording the
protected communication;
“support person” means a parent, carer
or other supportive person who is present when a person counsels the
complainant to facilitate communication between the complainant and the
counsellor or to further the counselling process in some other way;
“supporting affidavit” means the
affidavit accompanying an application for leave;
“the protection provisions” means this
section and sections 19B to 19M.
(2) A person "counsels
"another person if —
(a) the
person has undertaken training or study or has experience that is relevant to
the process of counselling persons who have suffered harm; and
(b) the
person —
(i)
listens to and gives verbal or other support or
encouragement to the other person; or
(ii)
advises, gives therapy to or treats the other person,
whether or not for fee
or reward.
(3) In the protection
provisions, a reference to a document recording a protected
communication —
(a) is a
reference to any part of the document that records a protected communication
or any report, observation, opinion, advice, recommendation or other matter
that relates to the protected communication made by a protected person; and
(b)
includes a reference to any copy, reproduction or duplicate of that part of
the document.
(4) For the purposes
of the definition of “counselling communication” in
subsection (1), a communication can be regarded as being made in
confidence even if it is made in the presence of a support person or through
or in the presence of an interpreter.
19B. Protected communications recorded
electronically
For the purposes of
the protection provisions, if —
(a) a
document recording a protected communication is stored electronically; and
(b) a
written document recording the protected communication could be created by use
of equipment that is usually available for retrieving or collating such stored
information,
the document stored
electronically is to be dealt with as if it were a written document so
created.
19C. Protected communications not to be disclosed
in criminal proceedings except with leave of court
(1) A person cannot
disclose or require disclosure of a protected communication in, or in
connection with, any criminal proceedings except with, and in accordance with,
the leave of the court.
(2) If a subpoena that
purports to require the disclosure of a protected communication is issued
without the leave of the court required by subsection (1), the subpoena
is of no effect.
(3) An application for
leave must be made to the court in writing and must be accompanied by an
affidavit stating why the applicant has a legitimate forensic purpose for
having leave to disclose or require disclosure of the protected communication.
(4) If the court
considers that the supporting affidavit establishes a prima facie case that
the applicant has a legitimate forensic purpose for having the leave, the
court is to —
(a) fix
a day and time for hearing the application; or
(b)
determine that the application will be heard during the criminal proceedings
referred to in subsection (1),
and send notification
of when the application will be heard, together with copies of the application
and the supporting affidavit, to —
(c) the
applicant and each other party;
(d) each
protected person identified in the application or the supporting affidavit;
and
(e) any
other person identified in the application or the supporting affidavit as a
person to whom the protected communication was made.
(5) If the court does
not consider that the supporting affidavit establishes a prima facie case that
the applicant has a legitimate forensic purpose for having the leave, the
court is to notify the applicant accordingly and the application for leave is
taken to have been refused.
(6)
Section 19E(2) and (3) apply in relation to the court’s
consideration of whether the supporting affidavit establishes a prima facie
case that the applicant has a legitimate forensic purpose for having the
leave.
(7) In this
section —
“party” means a party to the criminal
proceedings referred to in subsection (1).
19D. Procedure on hearing of application for leave
(1) A protected person
or a person referred to in section 19C(4)(e) may appear, or be
represented by counsel or solicitor, at the hearing of an application for
leave and is to be informed of that right when a notification is sent under
section 19C(4)(d) or (e).
(2) If there is a
jury, the court is to hear and determine an application for leave in the
absence of the jury.
19E. Application for leave to be dismissed if
there is no legitimate forensic purpose for it
(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).
19F. Determination of application
(1) If the court is
satisfied as to the matters set out in section 19E(1)(a) and (b), the
court is to determine the application for leave.
(2) The court may, if
it thinks it necessary in order to enable it to determine the application,
conduct a preliminary examination of the evidence that is the subject of the
application.
(3) For the purpose of
a preliminary examination the court may require a protected
person —
(a) to
provide written answers to questions; or
(b) to
appear for oral examination.
(4) A preliminary
examination is to be conducted in the absence of the parties.
(1) In determining the
application for leave, the court may grant leave to disclose, or require the
disclosure of, the protected communication if, and only if, the court
determines that it is in the public interest to do so.
(2) For the purposes
of subsection (1) the court is to have regard to the
following —
(a) the
extent to which disclosing, or requiring the disclosure of, the protected
communication is necessary to allow the applicant for leave to make a full
defence;
(b)
whether the evidence of the protected communication or the contents of the
document recording the protected communication will have substantial probative
value;
(c) the
likelihood that disclosing, or requiring the disclosure of, the protected
communication will affect the outcome of the proceedings;
(d) the
public interest in ensuring that complainants receive effective counselling,
and the extent to which failure to preserve the confidentiality of protected
communications may dissuade complainants from seeking counselling or diminish
the effectiveness of counselling;
(e) the
public interest in ensuring that adequate records are kept of counselling
communications;
(f) the
likelihood that disclosing, or requiring the disclosure of, the protected
communication will cause harm to the complainant, and the nature and extent of
that harm;
(g) any
other matter that the court considers relevant.
(1) The protection
provisions do not prevent a protected communication from being disclosed or
being required to be disclosed in, or in connection with, any criminal
proceedings if the complainant has consented to the disclosure.
(2) Consent is not
effective for the purposes of this section unless —
(a) it
is given in writing; and
(b) it
is given expressly for the purposes of the protection provisions.
(3) This section does
not apply if the complainant is a child.
19I. Loss of sexual assault communications
privilege: misconduct
(1) The protection
provisions do not prevent the production or adducing of evidence of a
communication made, or the production of a document prepared, in the
furtherance of the commission of a fraud or an offence or the commission of an
act that renders a person liable to a civil penalty.
(2) For the purposes
of this section, if the commission of the fraud, offence or act is a fact in
issue and there are reasonable grounds for finding that —
(a) the
fraud, offence or act was committed; and
(b) a
communication was made or document prepared in furtherance of the commission
of the fraud, offence or act,
the court may find
that the communication was so made or document so prepared.
Without limiting any
action the court may take to limit the possible harm, or extent of the harm,
likely to be caused by the disclosure of evidence of, or the contents of a
document recording, a protected communication, the court may —
(a)
order that all or part of the evidence be heard or document produced in
camera;
(b) make
any orders relating to the production, inspection, copying or reproduction of
the document that, in the opinion of the court, are necessary to protect the
safety and welfare of any protected person;
(c) make
any orders relating to the suppression of publication of all or part of the
evidence given before the court that, in its opinion, are necessary to protect
the safety and welfare of any protected person; and
(d) make
any orders relating to disclosure of identity information that would tend to
identify any protected person that, in the opinion of the court, are necessary
to protect the safety and welfare of any protected person.
19K. Inadmissibility of evidence that must not be
adduced or given
Evidence that, because
of the protection provisions, cannot be disclosed or required to be disclosed
in proceedings is not admissible in the proceedings.
19L. Application of other laws
(1) The protection
provisions do not affect the operation of any rule of law in relation to
evidence in criminal proceedings except to the extent that they expressly or
necessarily have that effect.
(2) Without limiting
subsection (1), the protection provisions do not affect the operation of
a rule of law so far as it relates to the inspection of a document required to
be produced in, or in connection with, criminal proceedings.
(3) Subject to
subsection (4), sections 238 and 239 of the
Children and Community Services Act 2004 do not apply to the production
or disclosure of a protected communication in criminal proceedings.
(4) If in criminal
proceedings leave is given under the protection provisions to require
disclosure of a departmental record as defined in subsection (1) of
section 238 of the Children and Community Services Act 2004 ,
subsections (5) to (8) of that section apply as if the departmental
record had been produced in response to a requirement referred to in
subsection (2) of that section.
(5) The protection
provisions do not affect the operation of section 240 of the
Children and Community Services Act 2004 .
19M. Regulations as to disclosure of protected
communications
The Governor may make
regulations as to —
(a) the
forms to be used for an application for leave and the supporting affidavit;
(b) the
manner in which a protected communication is to be described in an application
for leave or the supporting affidavit;
(c)
other matters to be included in an application for leave or the supporting
affidavit;
(d) the
procedure relating to an application for leave; and
(e) any
other matter that is necessary or convenient to be prescribed for the purposes
of the protection provisions.
”.