R v FT

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987, there is to be no publication of material that identifies or is likely to lead to the identification of the complainant.

JUDGMENT

The application

1. By application dated 29 June 2026, the accused seeks the leave of the Court to adduce evidence of a protected confidence and/or the contents of a document recording a protected confidence pursuant to s 298 of the Criminal Procedure Act 1986 (T**he CP Act).

2. The accused stands trial with respect to five counts alleging sexual misconduct perpetrated on the complainant (the protected confider) at various times between 31 October 2018 and 30 October 2021. The accused denies any of the acts constituting the various counts on the indictment occurred.

3. At the time the offences are alleged to have been committed, the accused was in a relationship with the protected confider’s mother.

Background to the application

4. On 2 June 2025 the accused stood trial with respect to five offences on the indictment. The trial proceeded for six days. On 5 June 2025, during defence closing, the Crown was served with a report of Dr Brown dated 5 June 2025 relating to an examination of the protected confider on 21 June 2023. The officer in charge had been unaware of the examination by Dr Brown, and the medical practitioner had not been called in the Crown case.

5. On 6 June 2025 Dr Brown gave evidence on the voir dire arising from an application by the accused for a discharge of the jury. During that evidence a document was produced by Dr Brown titled “JCPRP Additional Information Form”. Contained within that document was a ‘Progress Note’ relating to a Health Clinician ‘chat’ with the protected confider which occurred on 25 May 2023. This coincided with the first recorded interview between the officer in charge, former Detective Kareena Good, and the protected confider (the JIRT). The protected confider was referred to the Health Clinician following concerns of the officer in charge following the JIRT. The Health Clinician was requested to check-in with the protected confider.

6. The entry thereafter records the content of a counselling session between the protected confider and the Health Clinician. There is no issue that the relevant entry constitutes a protected confidence as defined in s 296 of the CP A**ct. As a result of the late disclosure of this material the jury was discharged.

7. The trial Judge noted that the material produced on the voir dire contained the protected confidence and received undertakings from the parties that the document would be deleted. On 12 September 2025, Judge Mendes granted the accused leave pursuant to s 298 of the CP A**ct to compel production of the relevant document by way of subpoena.

8. Whilst the entire document comprises eight pages, the relevant protected confidence is the progress note dated 25 May 2023 contained at pages 7 and 8. It records the contents of the interaction between the protected confider and the Health Clinician. The note also contains the context in which the consultation occurred, being the referral by the officer in charge to the Health Clinician.

The evidence on the application

9. The following evidence was admitted on the application;

10. Exhibit 1: JCPRP Form.

11. Exhibit 2: Transcript of Dr Catherine Brown June 2025.

12. Exhibit 3: Trial transcript of jury discharge application on 10 June 2025.

13. Exhibit 4: Affidavit of James Howell, Solicitor dated 29 June 2026.

14. Exhibit 5: Statement of DSC Kareena Good dated 22 June 2023.

15. Exhibit 6: Statement of DSC Tara Quinn dated 4 June 2025.

16. Exhibit 7: Statement of DSC Tara Quinn dated 6 June 2025.

17. Exhibit A: Transcript of child interview between the complainant and Detective Kareena Good dated 25 May 2023.

18. Exhibit B: Further transcript of child interview between the complainant and Detective Kareena Good dated 30 November 2023.

19. The confidential affidavit of the protected confider was read on the application.

20. The Crown opposes the application for leave. Notice of the application was given to the protected confider in accordance with s 299C of the CP Act. Ms Hampel appears on behalf of the protected confider, opposing the application.

The legislative regime

12. Section 298 of the CP Act provides that, except with the leave of the Court, evidence cannot be adduced in any criminal proceeding if it would disclose a protected confidence or the contents of a document recording a protected confidence.

13. A protected confidence is defined in s 296 as meaning a counselling communication that is made by, to or about a victim or alleged victim of a sexual offence.

14. Section 296(4) defines a counselling communication: –

“In this section—

counselling communication means a communication—

(a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or

(b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or

(c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or

(d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person.”

15. Section 299D of the CP Act provides: -

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.

16. In KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266, Basten JA at [30] made several observations in relation to the application of the protected confidence provisions. In addressing the operation of s 299D, his Honour, in the context of an application for leave to access such documents, noted that the use which might be made of the documents by the party seeking access must be the focus of the Court’s determination.

17. Counsel for the accused conceded that the issue of use which might be made of the documents equally applies to an application for leave to adduce evidence of the protected confidence. His Honour further observed that the second limb contained in s 299D(1)(b) is intended *“*to prevent access to counselling communications where relevant material is available from another source”, in that case being the applicant’s statements to police:[33].

18. With respect to the third requirement in s 299D(1)(c) His Honour observed: –

“**[34] The third requirement imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being “substantially outweighed” by the interest in admitting the material into evidence. Significantly, the former public interest has two limbs: the first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma. That public purpose will be undermined if confidentiality is too readily held to be overridden by other public interests, in circumstances where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused.**”

19. In Decision Restricted [2025] NSWCCA 55 the Court (Stern JA, Hamill J and McNaughton J) observed: –

“[31] The requirement in s 299D(1)(a) that the evidence” will*…* have substantial probative value” establishes a high bar, but it ought not to be interpreted as an insurmountable one or an absolute preclusion to access documents containing protected confidences: KS v Veitch (No 2) at [36]. However, as Basten JA held in KS v Veitch (No 2) at [31]-[32], it requires something more than establishing a legitimate forensic purpose for seeking the material.

[32] … The use of the word “will” in s 299D does not present a hurdle as high as “realistic inevitability” particularly in the context of deciding whether leave should be granted to seek production of documents under subpoena. However, the word “will” clearly connotes something more than a possibility or being “more likely than not”. In any event, it is clear that this test does not apply to the power under s 299B “to consider the document or evidence”.

20. The Court cited with approval the observations of Leeming JA in El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [64] that the meaning of the word “substantial” is also “strongly influenced by [its] context”.

21. As the Court observed in D**ecision R**estricted, Part 5 of the CP Act “provides a range of protections which are calculated to reduce the trauma to complainants in criminal proceedings for sexual offences”:[16].

The accused’s submissions

22. Mr Hibbard, on behalf of the accused, submitted that the application had to be considered in the context of the protected confider’s statements to police contained in the two JIRTS on 25 May 2023 and 30 November 2023. Relevantly, the protected confider had spoken to police about a “dream” of being inappropriately touched. That dream is alleged to have occurred, consistent with what the protected confider told police in the first JIRT, in the days prior to the allegations being reported. The protected confider also referred to her mind being “messed up a lot” which she further explained: –

“ I always keep getting these thoughts and most of them are like voices, like, like, telling me, why I listened, like, why it happened and that, but it keeps, replaying back to the past on so many times and that”

23. The protected confider was further asked about the dream in the second JIRT.

24. Mr Hibbard identified the use of the protected confidence in the following ways.

25. First, it related to the central issue at trial being the credibility and reliability of the protected confider. It was contended that the protected confider’s reference to hearing voices and seeing the waiting room walls closing in and moving towards her must be considered in the context of her earlier references to dreams and hearing voices. The evidence in its totality went to the central issue as to the credibility and reliability of the protected confider relating to her allegations of misconduct by the accused.

26. Second, there is no issue that the protected confider presented as visibly distressed, particularly in the first JIRT. There remained a risk, in the absence of the evidence contained in the protected confidence, that the jury may improperly reason that her distress was relevant to her disclosure of the alleged misconduct by the accused. However, at the time of the JIRT, the protected confider was otherwise labouring under other influences including hearing voices telling her that she should die and seeing the waiting room walls closing in and moving towards her. In effect, it was contended that what is contained in the protected confidence may provide an alternative explanation for her demeanour during the JIRT.

27. Third, the fact that the protected confider was hearing voices went directly to her veracity and that her reports of inappropriate conduct by the accused may well be an invention as a result of the hearing of voices either on its own or considered in the context of apparent dreams.

28. It was further contended, by reference to s 299D(1)(b), that other evidence concerning the matters contained in the protected confidence are not otherwise available. Relevantly, the former Detective Good had made no reference to the context or fact of the referral to the Health Clinician on 25 May 2023. Similarly, she gave no such evidence in the previous trial.

The Crown’s submissions

29. The Crown contended that the accused’s submission must be considered in the context of the relevant chronology leading to the protected confider’s interaction with police and the Health Clinician on 25 May 2023.

30. The protected confider told police in the JIRT that in the days prior she had experienced a dream of being inappropriately touched. This led to a sequence of events culminating in the report to police and participation in the JIRT on 25 May 2025. The Crown noted that the protected confider’s reference to dreaming related to a single dream in the days prior to the report to police. There was no suggestion on any of the evidence that the protected confider had experienced multiple dreams of this nature.

31. The protected confider in her subsequent JIRT told police that what she previously referred to as a dream of the protected confider acting inappropriately towards her was true. The Crown noted that this was not a charged act.

32. The protected confidence also had to be considered in the context in which the consultation with the Health Clinician occurred, in that during a break in the first JIRT the protected confider had asked about the availability of counselling.

33. It was contended that the contents of the protected confidence did not have substantial probative value in that there was no relevant connection between the protected confider’s reports of hearing voices, the walls closing in or indeed the reference to a dream as supporting a proposition that the protected confider’s evidence of the accused’s improper conduct directed at her was at all untrue. Further, it was contended that the adducing of the protected confidence was sought on the basis of a discriminatory belief or bias in that merely because the protected confider presented as significantly distressed and reported hearing voices that she was consequently psychiatrically unwell and therefore unreliable.

34. In the context of s 299D(1)(b), the Crown advised that Kareena Good would be called in the trial and there would be no objection to counsel for the accused questioning her, consistent with the relevant progress note, that the protected confider had reported to her that she was hearing voices telling her she should die.

Submissions on behalf of the protected confider

35. Ms Hampel, on behalf of the protected confider, supported the Crown’s position including the Crown’s submissions. Further, Ms Hampel relied upon the confidential affidavit in support of a submission that the protected confider was likely to suffer considerable harm in the event leave was granted to adduce the relevant evidence. This was even more so in the context that the protected confider will clearly require ongoing counselling which will be impacted in the event of the protected confider being aware that previous confidential statements made to a counsellor were otherwise disclosed during the trial.

Determination

36. The first issue to be determined is whether the evidence will, either by itself or having regard to other documents or evidence produced or adduced, will have substantial probative value.

37. As previously observed, the meaning of “substantial” is strongly influenced by its context.

38. Whilst the accused seeks to adduce evidence of the entire contents of the progress note as a protected confidence, it is important to identify with precision that part of the progress note which in fact constitutes a protected confidence. The relevant protected confidence commences at the second dot point contained at page 7 of the document. This commences recording the interaction between the Health Clinician and the protected confider, Detective Good having left the room. Importantly, the following part of the progress note is not a protected confidence: -

“Det. Good approached HC (Health Clinician) stating they were worried about [the complainant] after their interview. She said she was hearing voices telling her she should die. Requested HC check in with [the complainant].

Health Clinician was introduced to [the complainant] by Det. Good. HC introduced self, explained role and gained consent for interaction. Detective Good left the room and HC and [the complaint] engaged in drawing activities.”

39. Accordingly, the accused is at liberty to adduce the evidence contained in this part of the progress note in cross examination of Kareena Good. Alternatively, potentially it could be the subject of an agreed fact pursuant to s 191 of the Evidence Act 1995.

40. To the extent that the protected confidence refers to hearing voices, they are voices telling her that she should end her life. This is in similar terms to the evidence not the subject of the protected confidence that the protected confider told investigating police that she heard voices telling her she should die.

41. Consistent with s 299D(1)(a), not only is evidence available to be adduced of the protected confider hearing voices telling her she should die, evidence will also be adduced, consistent with the first JIRT, that the protected confider told investigating police that her mind was “messed up a lot” in that she would get “thoughts” and most of them were “like voices”.

42. I do not accept the protected confidence otherwise has substantial probative value. The fact that the protected confider for the “first time” whilst in the waiting room on the day of the JIRT saw the walls closing in and moving towards her has any substantial probative value in otherwise assessing the credibility and reliability of the protected confider’s evidence that the accused acted in the manner in which she alleged constituting each of the counts on the indictment.

43. Further, the fact that the protected confider role-played AI with anime characters that she had made up or spoke to her mother about the thoughts of hurting herself has substantial probative value for the same reasons.

44. I do not accept that the statements attributable to the protected confider contained in the protected confidence, either singularly or in combination, have substantial probative value in that it cannot impact upon the credibility or the reliability of the protected confider relating to the specific allegations the subject of the counts on the indictment.

45. I accept, consistent with the observations in Veitch, that if the material casts doubt on the veracity or reliability of the protected confider, this would militate in favour of disclosure where it could give rise to doubt as to the guilt of the accused. However, I am not satisfied that the relevant evidence reaches the level of casting doubt on the veracity or reliability of the protected confider, relevantly, her evidence as to the alleged conduct of the accused constituting each of the relevant counts on the indictment.

46. To the extent the content of the protected confidence may provide an alternative explanation for the protected confider’s visible distress throughout the interview, I do not accept it has substantial probative value in this context given the evidence is available of the protected confider telling Kareena Good that she was hearing voices telling her she should die.

47. I accept the Crown’s submission that any attempt by the accused to somehow link the protected confider’s reference to a single dream and the hearing of voices or experiencing for the first time the waiting room walls closing in are such that the relevant protected confidence has substantial probative value. The reference to the dream, as noted by the Crown, related to a single dream in the days prior to her disclosure to police, relating to an alleged act of abuse by the accused. The protected confider does not otherwise contend that she had multiple dreams, or for that matter, that any of the acts the subject of the counts on the indictment, occurred in the context or at the time she was experiencing such dreams.

48. To the extent it is contended that other documents or evidence concerning the matters to which the protected confidence relate are not available, I do not accept this to be the case. As previously noted, the accused is at liberty to adduce evidence from Kareena Good as to her concern relating to the protected confider and, relevantly, that she was hearing voices telling her she should die.

49. Whilst it must be acknowledged that there are other aspects of the protected confidence, relevantly, that for the first time in the waiting room she saw the walls closing in and she role-played with AI anime characters is not otherwise available, I am not satisfied that those relevant matters in any event have substantial probative value.

50. In any event, even if satisfied that the relevant protected confidence had substantial probative value, I am not satisfied the public interest in preserving the confidentiality of protected confidences and protecting the protected confider from harm is substantially outweighed by the public interest in admitting the evidence or the contents of the document.

51. In so doing, I have considered the purposes of determining the public interest in preserving the confidentiality of the protected confidences and protecting the protected confider from harm provided in s 299D (2).

52. I have had regard to the contents of the affidavit of the protected confider dated 15 June 2026. In so doing I have considered that the relevant harm is defined in s 295 (1) to include “actual physical bodily harm, financial loss, stress or shock, damaged reputation or emotional or psychological harm”. Given the contents of the affidavit of the protected confider, including the context in which the protected confider engaged with the Health Clinician, and the likely harm to the protected confider referred to in the confidential affidavit, I am not satisfied the relevant precondition contained in s 299D (1)(c) of the CP Act has been satisfied.

53. I note that the consultation with the Health Clinician occurred in the context of the protected confider discussing counselling with the officer in charge. In this context the Court must acknowledge the need to encourage victims of sexual offences to seek counselling: s 299D(2)(a). Further, it must be acknowledged that the effectiveness of counselling in this context is clearly dependent on the maintenance of the confidentiality of the counselling relationship: s 299D(2)(b). There is a clear public interest in ensuring the victims of sexual offences receive effective counselling, including any future counselling needed by the protected confider: s 299D(2)(c). Further, the adducing of the evidence, consistent with the confidential affidavit of the protected confider, is likely to infringe the protected confider’s reasonable expectation of privacy in the information provided by the protected confider to the Health Clinician: s 299D(2)(f).

54. Further, considering the relevant matters referred to in s 299D(2), I am further satisfied that there is significant public interest in preserving the confidentiality of such protected confidences, and even more so in the context of the likely harm in the event the evidence was adduced.

Orders

1. The accused’s application to adduce evidence of the protected confidence contained in the progress note dated 25 May 2023 is refused.
2. The confidential affidavit of the protected confider is to be inserted in a sealed envelope and marked “Not to be opened except by order of a Judge”.

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