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• ACT Corrective Services, Justice and Community Services Directorate;

• Canberra Health Services;

• NSW Justice Health

• NSW Department of Communities and Justice and

• ACT Education Directorate

4. At the same time, his Honour gave leave to the Defendant to disclose other documents produced on subpoena which are not relevant to this application.

5. In support of the application for leave to issue the subpoenas, the solicitor for the Defendant filed an affidavit on 14 April 2026 setting out the basis on which the information within the documents sought had forensic relevance to the proceedings between the parties. I have considered those matters in the course of determining this application for leave to disclose.

6. The documents to which his Honour’s order relate have been produced and the Defendant seeks leave pursuant to s 79H of the EMP Act to access and for disclosure of the contents of the documents. The Statutory Scheme

7. Section 79D of the EMP Act provides a general immunity in relation to a “protected confidence” and leave is required to access and disclose the contents of documents in which protected confidences are recorded. Division 4.4.3 of the EMP Act for the purposes of that division, defines a “protected confidence” as a “counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been committed…”.

8. Section 79H of the EMP Act provides that leave may be given for disclosure of documents that contain “protected confidences” only if the public interest in ensuring that the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence.

9. In making that determination, a court must have regard to the matters set out in s 79H(3) so far as relevant. These are not criminal proceedings and thus s 79H(3)(a) does not apply, however the following considerations are relevant to the determination: (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.

10. In order to make the necessary determination I have looked at all of the documents produced in response to the subpoenas. ACT Corrective Services, Justice and Community Services Directorate

11. These documents contain records of the Plaintiff’s imprisonment from time to time spanning approximately from 2017 to 2026 although not continuously. The records include discussions between by various persons within the justice system and the Plaintiff about counselling, matters disclosed by the Plaintiff during assessments while in prison and matters discussed by the Plaintiff for the purposes of the preparation of reports. The documents contain counselling communications for the purposes of the EMP Act.

NSW Justice Health

12. These documents contain clinical notes and assessments conducted on the Plaintiff. They record discussions with the Plaintiff about events in his past and there are documents within those produced which could properly be regarded as relating to counselling communications.

NSW Department of Communities and Justice

13. As with the documents produced by ACT Corrective Services, the documents contain records of counselling communications.

Canberra Health Services

14. These documents concern the Plaintiff’s admission to hospital from time to time and the documents contain records of counselling communications.

15. In respect of the documents produced from the above entities, I have given careful consideration to the balance which must be struck and, in particular ensuring that victims of sexual crimes receive effective counselling or treatment.

16. Having considered the matters to which s 79H(3) of the EMP Act refers, I find that the material will have some probative value in the proceedings and the public interest in preserving the confidentiality of the discussions does not outweigh the public interest in ensuring the proceedings between the parties is a fair one.

ACT Education Directorate

17. These documents may be disclosed.

Orders

18. I therefore make the following orders: (1) Pursuant to s79D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and in relation to the documents produced by: • ACT Corrective Services, Justice and Community Services Directorate;

• Canberra Health Services;

• NSW Justice Health and

• NSW Department of Communities and Justice (a) The parties may inspect and disclose the protected confidences in the documents produced for the purposes of the proceedings. (b) The Plaintiff is granted first access to those documents such access to be had within 7 days of the making of these orders or such other reasonable period as the parties may agree and, thereafter access is granted to both parties. (c) The parties may uplift the documents for a period of 24 hours in order to make copies of them on the condition that the party who does so, within 48 hours of copying the documents, serve a scanned copy of the documents on the other party. (2) Costs of the Application to be costs in the cause.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: 26 August 2026