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District Court 30 June 2026

R v FT

[2026] NSWDC 287

Other

Citation: R v FT [2026] NSWDC 287
Court: District Court of New South Wales
Date: 30 June 2026
Judge(s): Fitzsimmons SC DCJ

Background

The accused faced five counts of sexual misconduct alleged to have been perpetrated against the complainant between October 2018 and October 2021. At the relevant times, the accused was in a relationship with the complainant's mother. The accused denied that any of the alleged acts occurred.

During a first trial in June 2025, the defence served a report from a medical practitioner, Dr Brown, late in proceedings. On the voir dire, a document emerged containing a progress note from a session between the complainant and a Health Clinician on 25 May 2023. That date coincided with the complainant's first recorded police interview. The officer in charge had referred the complainant to the Health Clinician following concerns arising from that interview. The progress note recorded the content of a counselling session and constituted a protected confidence under s 296 of the Criminal Procedure Act 1986 (the CP Act). Its late disclosure led to the jury being discharged.

In the second trial, the accused applied under s 298 of the CP Act for leave to adduce evidence of the protected confidence contained in that progress note. Both the Crown and the complainant, who appeared separately through counsel, opposed the application.

  • Whether the progress note constituted a "protected confidence" within the meaning of s 296 of the CP Act
  • Whether the preconditions for granting leave under s 299D of the CP Act were satisfied, specifically:
  • Whether the evidence had substantial probative value (s 299D(1)(a))
  • Whether other documents or evidence on the same matters were available from another source (s 299D(1)(b))
  • Whether the public interest in admitting the evidence substantially outweighed the public interest in preserving confidentiality and protecting the complainant from harm (s 299D(1)(c))

Decision

Preliminary matter: There was no dispute that the progress note constituted a protected confidence under s 296 of the CP Act. The court proceeded on that agreed basis.

Substantial probative value (s 299D(1)(a)): The judgment does not record a finding against the accused on this limb, suggesting the court proceeded to consider the remaining preconditions.

Availability of other evidence (s 299D(1)(b)): Drawing on the approach in KS v Veitch (No 2), the court considered whether the matters addressed in the protected confidence were available from another source. The court had regard to the transcripts of the complainant's police interviews and the statements of the investigating officers in assessing this question.

Balancing of public interests (s 299D(1)(c)): This precondition proved determinative. The court was not satisfied that the public interest in admitting the evidence substantially outweighed the public interest in preserving confidentiality and protecting the complainant from harm. The court gave weight to the context in which the consultation arose, being a referral by the investigating officer for a welfare check following the complainant's police interview. It took into account the need to encourage victims of sexual offences to seek counselling, the dependence of effective counselling on confidentiality, the public interest in ensuring victims receive effective counselling (including any future counselling), and the complainant's reasonable expectation of privacy in the information disclosed to the Health Clinician. The contents of the complainant's confidential affidavit, describing the likely harm from disclosure, reinforced the court's conclusion that the balance was not satisfied.

Orders Made

  • The accused's application to adduce evidence of the protected confidence contained in the progress note dated 25 May 2023 was refused.
  • The confidential affidavit of the protected confider is to be placed in a sealed envelope marked "Not to be opened except by order of a Judge."

Key Takeaways

  • The District Court confirmed that all three preconditions in s 299D(1) of the CP Act must be satisfied before leave to adduce a protected confidence can be granted, and failure on any one is sufficient to refuse the application.
  • The balancing exercise under s 299D(1)(c) requires courts to weigh two competing public interests: the interest in admitting probative evidence against the interest in preserving counselling confidentiality and protecting the confider from harm. The public interest in admission must substantially outweigh the other side of the ledger.
  • Under s 299D(2), courts must account for a range of specific considerations on the confidentiality side of the balance, including the need to encourage victims to seek counselling, the importance of confidentiality to the effectiveness of counselling, and any reasonable expectation of privacy held by the confider.
  • A confidential affidavit from the protected confider describing anticipated harm is a meaningful procedural tool under s 299D(3), and its contents inform the public interest balancing exercise, while remaining sealed from the other parties.
  • Consistent with KS v Veitch (No 2), the focus of the court's determination is on the use the applying party intends to make of the protected confidence, and the second limb in s 299D(1)(b) operates to prevent access where the relevant material can be obtained from another source.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 ss, 296, 298, 299
- Evidence Act 1995 s 191

Cases
- KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
- Decision Restricted [2025] NSWCCA 55
- El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10