• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

A preliminary examination of the records

7. Before deciding whether leave should be given, s 79G of the EMP Act requires that I undertake a preliminary examination of the documents. A record of the preliminary examination must be made but is not to be made available for public access. The legislation does not provide guidance as to the scope of the examination required, although the examiner is empowered to take various steps in the course of an examination including seeking written answers to questions directed to the counsellor, requiring the counsellor to attend court for oral examination and receiving a written statement from the counselled person about the harm they are likely to suffer if leave is given.

8. I have undertaken an examination, and I am satisfied the documents produced contain protected confidence evidence. For the purposes of completing the preliminary examination and determining whether leave should be given, I do not consider it necessary to take any of the actions available to me under s 79G(2) and (3) of the EMP Act.

9. The question then is whether a grant of leave pursuant to s 79H of the EMP Act should be made.

What are the requirements for leave to disclose protected confidence evidence?

10. Section 79H(1) of the EMP Act provides, leave may be given for the disclosure of the protected confidence evidence only where I am satisfied the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence. Section 79H(3) of the EMP Act sets out a number of factors to which regard must be had in determining where the public interest lies. They are mandatory considerations, but s 79H(4) of the EMP Act makes clear they are not intended to limit the matters a court may consider relevant to its determination of public interest considerations: 79H Giving of leave to disclose protected confidence ... (3) In making a decision under subsection (1), the court must have regard to— (a) for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and (b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and (c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and (d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and (e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and (f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and (g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and (h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made. (4) Subsection (3) does not limit the matters to which the court may have regard …

11. Other factors that may be of relevance are: (a) the particular circumstances in which the disclosure was made; (b) the conduct of any party to the proceedings bearing on public interest considerations; (c) the importance of protection of an individual’s right to privacy; and (d) the prospect of information relevant to the outcome of the proceedings being secured from sources other than the protected confidence evidence.

The CCTV Footage and the affidavits of Mr Lalor

12. Mr Baker seeks to rely upon a portion of CCTV footage from the ACT Police Watchhouse depicting his interaction with the police officers that is the primary basis for his claim. He also seeks to rely upon a number of affidavits prepared by his solicitor, Mr Lalor. The affidavits annex documents Mr Baker says are relevant to the exercise of balancing competing public interest considerations. In short, he asserts the contumelious disregard for their lawful obligations by some of the police officers revealed in the documents annexed to Mr Lalor’s affidavit should be relevant in assessing the public interest considerations underpinning a grant of leave. He also argues the extent of the assault revealed in the CCTV footage is so great as to effectively nullify the impact of any pre-existing psychological condition in assessing Mr Baker’s claim. That is a view which can only be reached after an examination of the footage has occurred. The defendants argue the CCTV footage and the “Lalor” material is not relevant.

13. At the hearing, there was some argument about whether the written submissions of the defendants on the application contained concessions about the effect of the CCTV footage. Pursuant to the directions I made, the defendants filed a document clarifying the concession. To the extent a concession is made, it is for the purposes of this application only, and it is a concession that the medical records to which access is sought are not probative about what occurred when Mr Baker was arrested on 16 March 2024.

14. The defendants accept other evidence about what occurred following Mr Baker’s arrest is available. They argue the reason for seeking leave is the likelihood of the medical records “having substantial probative value as to the cause and extent of the plaintiff’s claimed psychiatric injury”. Given the narrow scope of that enquiry the defendants contend the CCTV footage and the records relating to police conduct after Mr Baker’s arrest cannot be relevant to the determination of the probative value of the medical records.

15. Ultimately, accepting the list of matters set out in s 79H(3) of the AMP Act, to which regard must be had in weighing the public interest considerations is not an exhaustive list, it is at least arguable that reprehensible conduct by a party to litigation may be a factor of significance in assessing public interest considerations. For that reason, I have viewed the CCTV footage and received the affidavits of Mr Lalor affirmed on 24 February 2026 and 19 March 2026 as evidence on the application.

Is a grant of leave appropriate in this case?

16. It is necessary to first address the mandatory criteria.

Objection by interested people

17. One of the matters to which I must have regard is the attitude of the counselled person. Mr Baker objects to the disclosure of the protected confidence evidence. He does so without having been afforded an opportunity to inspect the documents produced. Section 79H(3)(g) of the EMP Act requires regard to be had not just to any objection raised by the person who is the subject of the confidential communication, but also a person to whom the protected confidence was made. The subpoena issued to Katungul made clear its entitlement to object to a counselling communication being inspected. Katungul has not raised any objection, and the records were produced by them without comment.

18. With due regard to the objects of the legislative scheme the attitude of the counselled person to disclosure is a matter of real significance in the analysis, and in this case weighs against a grant of leave.

The probative value of the evidence, the availability of other probative evidence sources, and the likelihood disclosure will affect the outcome in the case

19. I address ss 79H(3)(d) and (e) of the EMP Act together because of the significant overlap between the matters relevant to a consideration of those factors. The category of matters likely to affect the outcome of the case may in some circumstances go beyond matters likely to have substantial probative value to a fact in issue. However, it remains convenient to address the two categories together and to deal with any additional matters arising under s 79H(3)(e) of the EMP Act thereafter.

20. There is broad agreement the prospective value of the treatment records containing the protected confidence evidence is in the quantification of any damages to which Mr Baker establishes an entitlement. There is a disagreement as to the likelihood of the evidence being of significant value, albeit a disagreement arising in circumstances where neither of the parties has a knowledge of the precise contents of the medical records produced. The defendants’ psychiatrist, Dr Jungfer, also expresses a view about the likely relevance of the treatment records to an analysis of issues of causation and I will return to her opinion later.

21. The defendants say the probative value of the medical records is their likely impact on assessing the initial cause and original extent of Mr Baker’s psychological injury resulting from his childhood abuse. That applies whether the records advance the defendants’ case, or advance the case of Mr Baker and thus assist the defendants to make decisions about the future conduct of the proceedings. The argument proceeds in part in reliance upon the medical opinion already expressed by Mr Baker’s psychiatrist Dr Klug. That opinion is to the effect Mr Baker’s current psychiatric condition, although substantially caused by the circumstances of his arrest, relates also to his experiences of childhood sexual abuse likely causing a chronic post-traumatic stress disorder and possibly a persistent depressive disorder. The value of the medical records lies in their capacity to assist the medical experts, and in turn the court, to assess the degree to which any current and future psychological difficulties suffered by Mr Baker may be related to the circumstances of his arrest as opposed to his earlier life events.

22. Mr Baker seeks to minimise the likely impact of the medical records in a number of ways. Primarily he says a consideration of the video footage and the causes of action advanced in the statement of claim (as it is proposed to be amended) make it unlikely the protected confidences will affect the outcome of the case. The premise is advanced on two bases: (a) the actions of the police officers are so extreme as to render it unlikely that any antecedent psychological condition will be seen to have any significant impact; and (b) the damages claim insofar as it relates to allegations of intentional tort will not lead to the same disentangling exercise required in a personal injury damages claim because of the way damages for an intentional tort are assessed.

23. I do not accept the first of those propositions. After viewing the CCTV footage, I accept on its face it displays conduct by some of the police officers reasonably described as extreme and unnecessary. It is not so extreme as to rule out the prospect of some pre-existing vulnerability or disorder suffered by Mr Baker constituting a factor of relevance in the assessment of the consequences of the interaction depicted in the CCTV footage. For the second proposition, reliance is placed on the decision of the New South Wales Court of Appeal in State of New South Wales v Spedding [2023] NSWCA 180; 309 A Crim R 519. The argument may proceed on a misunderstanding of the process for assessing damages in the case of intentional tort. Spedding was an action for malicious prosecution, misfeasance in public office and collateral abuse of process. The case was concerned with the legitimacy of the police prosecution of Mr Spedding, at one time a person of interest in the disappearance of 3 year old William Tyrrell from Kendall in New South Wales. Mr Spedding was arrested and charged in relation to alleged historical sexual assaults. His arrest took place before a media pack in high-profile circumstances. Mr Spedding was found not guilty of the offences for which he was charged. When the matter came to trial, it was the prosecution in relation to those charges that he alleged was malicious and also amounted to misfeasance in public office by the police officers who charged him. He said the improper purpose for the prosecution was to further the investigation into the disappearance of William Tyrrell. Mr Spedding was successful at first instance and on appeal.

24. The Court of Appeal in Spedding commenced their analysis of the principles applying to the assessment of damages for intentional torts at [291], observing the injured party is required to prove first, the tortious act caused the harm and secondly, the tortfeasor had an actual or presumed intention to cause the harm. As to causation the Court of Appeal went on at [292] to observe: Causation is a question of fact. While most of the authorities on causation in tort derive from the tort of negligence, the basic principles still apply to intentional torts: 1. a tortious act need not be the sole or principal cause of harm to be compensable; it is sufficient if it is a material or contributing cause of harm; 2. the wrongdoer must take the injured party as he or she finds him or her. Thus a wrongdoer who causes a pre-existing medical condition in the injured party to become symptomatic is liable for such harm as the wrongdoer (who bears the onus) cannot establish would have eventuated but for the tortious harm: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; and 3. a wrongdoer is not relieved of the consequences of the wrongdoing because the injured party would not have suffered as he or she did unless other contributing factors had existed: Purkess v Crittenden (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ) and 170-171 (Windeyer J); [1965] HCA 34.

25. Importantly for the purposes of the present case, the Court of Appeal in Spedding confirmed the principles applying to the determination of causation in an intentional torts case are consistent with those applied in the tort of negligence. As a consequence, where a wrongdoer causes a pre-existing medical condition in the injured party to become symptomatic or causes a material worsening of that harm, the onus is placed on the wrongdoer to establish the extent to which the identified harm would have been suffered regardless of the tortious harm.

26. In Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [1975] HCA 23; 132 CLR 323, Barwick CJ (with whom Gibbs, Stephen, and Mason JJ agreed; Murphy J agreed with the majority but analysed the issue differently), described the challenge facing a defendant in relation to two separate and distinct torts in this way at 326: The injury suffered through the later tort may have exacerbated a condition initially induced by the prior tort. It was said that included in the result of the first tort was a physical deterioration which carried the potential of further deterioration of the kind evident as the result of the second tort, particularly if some event of a foreseeable kind supervened, cf. Chapman v. Hearse (1961) 106 CLR 112. But, until such event occurred and the further deterioration resulted, the injury suffered by the first tort and the compensating damages therefor could include no more than that potential; the money compensation could only include a sum to reflect the possibility or the probability of further deterioration. If such a possibility or probability of further deterioration became a reality by virtue of the subsequent tort, the amount of compensation payable for that subsequent injury may be lessened because of the deteriorated condition of the worker already present at the time of the receipt of the further injury. But it would rest upon the subsequent tortfeasor to establish the pre-existing condition for which he was not responsible - see Watts v. Rake (1960) 108 CLR 158 and Purkess v. Crittenden (1965) 114 CLR 164. Performance Cars Ltd. v. Abraham (1962) 1 QB 33 is illustrative of such a situation. The subsequent tortfeasor is not in any sense liable for the injury which the first tortfeasor caused or for its consequences, though if he is unable in point of proof to establish the pre-existing disability of the injured person the damages he may be required to pay will not be diminished by reason of the pre-existing condition of the injured person.

27. Returning to the facts of this case it is a matter of relevance if the defendants are unable, by evidence, to establish the pre-existing disability, if any, of Mr Baker they may be required to pay damages that are not diminished by reason of any pre-existing condition. That is so whether the claim is made in negligence or is in the nature of an intentional tort.

28. Secondly, with due regard to the CCTV footage, the medical records can have no work to do in the task of assessing the reliability of Mr Baker’s account of the arrest circumstances. That much is conceded by the defendants. Mr Baker makes reference to [50] of my judgement in Baker (a pseudonym) v Commonwealth [2025] ACTSC 506, however in that passage I was dealing with the impact of the medical records on the assessment of the reliability of his assertions as to the impact of the childhood sexual assault. It is in addressing that issue the medical records may have some work to do, particularly where those records establish a degree of impact from the pre-existing psychological condition inconsistent with Mr Baker’s more recent recollection of the impact.

The likelihood of disclosure otherwise affecting the outcome in the case

29. Counsel for Mr Baker submits the conduct of the defendant officers in this matter goes well beyond the subject arrest assault. That is, the post arrest conduct of the AFP in this matter is so independently heinous and egregious that whatever information is found in the protected confidence evidence is of little weight and value as compared to the internal investigation finding excessive force used, the malicious prosecution of Mr Baker and the misfeasance in public office alleged against the fifth defendant. Mr Baker submits this case has echoes of Spedding, in that the officers in various contemporaneous emails annexed to Mr Lalor’s affidavits articulate an ulterior motive for the criminal prosecution, namely the defendants wish for Mr Baker not to “get away with an unrelated crime with which he was never charged”. Mr Baker submits the conduct is worse in the present case because it advances a police officer as being a victim in the context of the abuse inflicted upon the plaintiff.

30. Mr Baker submits, the Commonwealth’s failure to admit the subject incident involved a battery of him, in light of the internal AFP investigation finding both excessive force, and corrupt conduct in the performance of the strip search, justifies an additional claim of aggravated damages.

31. He submits the post arrest police conduct warrants “extraordinary concerns” about the behaviour of the defendants bearing directly on the weighing of public interest considerations. Those concerns, he argues, tip the balancing exercise in s 79H(1)(a) of the EMP Act in favour of the protection of confidentiality.

32. I might agree if Mr Baker’s case was limited to a malicious prosecution arising out of the post arrest events only, but it is not. His case extends to the arrest itself and the psychological impact upon him of the physical and emotional treatment he received in the course of his arrest and subsequent detention. When the pleaded case is viewed in the context of the opinion of Dr Klug, there is a likelihood of the protected confidence evidence affecting the outcome of the case in terms of the ultimate finding as to causation and damage.

Is there evidence of discriminatory belief or bias underpinning the defendants’ application?

33. Discriminatory belief or bias is not relied upon by Mr Baker in this case and none is identified on the evidence before me. It is well accepted there is a proper basis for seeking access to the subject medical records. The question is whether the public interest considerations favour the grant of leave.

Ensuring victims of sexual offending receive effective counselling or other treatment

34. This is one of the broader mandatory considerations. It is directed not to the particular facts of this case but mandates the need to take into consideration as part of the weighing exercise, the reality of disclosure of confidential personal information in the context of counselling communications for sexual abuse or family violence carrying the ever-present risk of discouraging other victims from making disclosures. It is part of the weighing exercise inherent in assessing where the public interest lies in each case.

35. In Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157 the Chief Justice observed at [29]: The considerations in sub-ss 79H(3)(b) and (c), interest in ensuring that victims receive effective treatment and the prospect that disclosure of protected confidences may dissuade victims from seeking counselling or other treatment or diminish the value of counselling or other treatment, are of less weight in the present case where, by commencing the action, the plaintiff has put in issue the causes of her present injuries and disabilities.

36. In this case, the tort which is the subject of this action is separate and distinct from the earlier childhood events. Although Mr Baker has commenced this action and thereby put in issue the cause of his injuries and disabilities, it is difficult to see that as a factor weighing against him in the balancing exercise. Having earlier made disclosures concerning unrelated events of childhood abuse in confidential circumstances, and subsequently having experienced the events which are the subject of this claim at the hands of the police, one may ask rhetorically what else was Mr Baker to do? The nature and extent of the reasonable expectation of confidentiality, and potential prejudice to privacy

37. When Mr Baker made the disclosures attracting the operation of the protected confidences legislation he must have done so in the belief any information he disclosed would remain confidential unless he elected otherwise. His expectation in that regard was an entirely reasonable one and one which weighs against disclosure of the records. Balanced against that however is the evidence served in the proceedings by Mr Baker from Dr Klug. Mr Baker properly disclosed to Dr Klug his prior history of childhood abuse. Dr Klug has considered that history in his analysis of the impact of the arrest circumstances upon Mr Baker and has reached a conclusion providing for some attribution of Mr Baker’s ongoing difficulties to the prior childhood events. It follows that the childhood abuse and its sequelae will need to be traversed in the context of these proceedings whether in the form of further expert medical analysis or in the form of cross examination. In those circumstances the potential prejudice to privacy is lessened by the disclosures already made.

38. Dr Jungfer directs her attention to the issue of causation in her two reports. Somewhat surprisingly, although provided with a copy of the CCTV footage, she did not view it for the purposes of her initial report. She then provided a supplementary report expressing the view the footage did not alter her opinions. The opinion she expresses in her initial report is significantly focused on an exploration of Mr Baker’s childhood history of abuse and of other pre-incident life difficulties. At [10.2] of her first report, she appears to accept the incident with the police caused Mr Baker’s underlying condition to become more severe.

39. Any analysis of the evidence for the purpose of assessment of damages will require the issue of causation to be addressed. That, in turn, will require some analysis of the impacts of Mr Baker’s childhood abuse upon him in the years prior to the police incident, and the likely continuing impacts of the childhood abuse going forward. Whatever conclusions may be reached, the topic will be the subject of some close analysis, likely further evidence, and likely cross examination. In those circumstances the prejudicial effect of the disclosure of the subject records is lessened because the protected confidences in the records under consideration for the purposes of this application are already matters out in the open and under consideration and assessment by expert witnesses.

40. After weighing all of the matters I have identified above, the public interest considerations in this matter are finely balanced. Ultimately, the consideration leading me to conclude the public interest in ensuring the proceedings are conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence is the, “the nature and extent of the reasonable expectation of confidentiality, and potential prejudice to privacy”. That is, in view of the disclosures Mr Baker has made to Dr Klug, relied upon by that expert and by Dr Jungfer for the purpose of formulating opinions in Mr Baker’s case, there is an inevitability about the subject matter of the protected confidences being a matter that is traversed in medical expert opinions and also in the context of evidence at hearing if this matter proceeds. Principally for that reason I have determined the public interest considerations favour leave being granted to inspect and disclose for the purposes of the proceedings the subject medical records.

Orders

41. I therefore make the following orders: (1) The parties have leave pursuant to ss 79D(2) and 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to disclose in and for the purposes of this proceeding the documents containing protected confidences produced by Katungul Aboriginal Corporation Regional Health and Community Services, received by the court on 16 December 2025. (2) The plaintiff has first access to inspect and copy documents produced to the court by Katungul Aboriginal Corporation Regional Health and Community Services for a period of three (3) days from the date of these orders, and the defendants thereafter have access to inspect and copy the documents.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 3 June 2026