R v Cable - [2014] NSWDC 342

District Court

New South Wales

Medium Neutral Citation: R v CABLE [2014] NSWDC 342
Hearing dates: 08-09/09/2014
Decision date: 09 September 2014
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Limited material made available to the accused being type-written notes by the psychologist dated 8 October 2013.
Counsel for the protected confider is provided with a copy of the extract from those typewritten notes.
Copy of that document placed in a sealed envelope only to be opened at the direction of this Court or the Supreme Court and made an exhibit in these proceedings, exhibit 8.
Exhibit 3 and exhibit 4, the produced documents with copies of the subpoenae attached, each placed in sealed envelopes, only to be opened at the direction of or further order of the District Court or the Supreme Court of New South Wales.

Catchwords: Criminal – Application, documents produced under subpoena, confidentiality of protected confidences
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: KS v Veitch [2012] NSWCCA 266
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Francis William Cable - Accused
Representation:
Counsel:
Mr J Crespo – Crown
Mr B Robinson - Accused
Solicitors:
Ms V Hampel – Protected Confider

File Number(s): 2012/393936

Judgment

HIS HONOUR: The Director of Public Prosecutions proposes arraigning the accused, Francis William Cable, on 18 counts alleging various types of sexual assault committed on five separate complainants between 53 and 47 years ago when the accused was a member of the Marist Brothers Holy Order. He was then known as Brother X. The offences were allegedly committed in the Hunter Valley and south-eastern Sydney when the accused was teaching at schools at which the various complainants attended.
PH9 is one of the five complainants, in respect of whom there are eight counts, as I counted them, in the proposed indictment to be presented at the present time.
For the purposes of considering the issue that I am now giving judgment on, the accused is relevantly charged with “sexual assault offences” as they are defined, pursuant to Pt 5 Div 2 Criminal Procedure Act 1986, hereinafter referred to as “the Act”. The sections of that Division of that Part of the CPA relevantly are ss 295-306. However, as the matter transpires, the critical provision requiring close attention, although all relevant provisions have been considered is s 299D of the Act.
That section provides:

The Court cannot grant an application for leave under this Division unless the Court is satisfied that:

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 parties seeking to produce or adduce the document or evidence, have substantial probative value, and

Other documents or evidence concerning matters to which the protected confidence relates are not available, and

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cable

Details

AGLC: R v Cable [2014] NSWDC 342
Case: [2014] NSWDC 342
Decision Date: 09 September 2014

CaseChat Overview and Summary

In the matter of the Crown versus Cable, the dispute involved the disclosure of certain documents obtained under a subpoena. The case was heard in the District Court of New South Wales. The central issue before the court was whether the documents produced under the subpoena, which were confidential, could be disclosed to the accused in a criminal proceeding while maintaining the confidentiality of the protected confidences.

The court had to determine the balance between the need for disclosure in the interest of justice and the protection of confidential information. This required the court to consider the nature of the documents, the purpose for which they were produced, and the potential impact of disclosure on the confidentiality of the information. The court also needed to consider the rights of the protected confider and the implications of the disclosure on the accused's right to a fair trial.

The court ruled that limited material could be made available to the accused, specifically type-written notes by the psychologist dated 8 October 2013. The court provided a copy of the extract from those notes to the counsel for the protected confider and placed the copy in a sealed envelope to be opened only at the direction of the court or the Supreme Court and made an exhibit in the proceedings. The produced documents, along with copies of the subpoenae, were also placed in sealed envelopes and could only be opened at the direction of or further order of the District Court or the Supreme Court of New South Wales. The court's decision was based on the need to balance the rights of all parties involved while maintaining the confidentiality of the protected confidences.

Orders

Orders of the court

Limited material made available to the accused being type-written notes by the psychologist dated 8 October 2013.

Counsel for the protected confider is provided with a copy of the extract from those typewritten notes.

Copy of that document placed in a sealed envelope only to be opened at the direction of this Court or the Supreme Court and made an exhibit in these proceedings, exhibit 8.

Exhibit 3 and exhibit 4, the produced documents with copies of the subpoenae attached, each placed in sealed envelopes, only to be opened at the direction of or further order of the District Court or the Supreme Court of New South Wales.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v CABLE [2014] NSWDC 342
Hearing dates:	08-09/09/2014
Decision date:	09 September 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Limited material made available to the accused being type-written notes by the psychologist dated 8 October 2013. Counsel for the protected confider is provided with a copy of the extract from those typewritten notes. Copy of that document placed in a sealed envelope only to be opened at the direction of this Court or the Supreme Court and made an exhibit in these proceedings, exhibit 8. Exhibit 3 and exhibit 4, the produced documents with copies of the subpoenae attached, each placed in sealed envelopes, only to be opened at the direction of or further order of the District Court or the Supreme Court of New South Wales.
Catchwords:	Criminal – Application, documents produced under subpoena, confidentiality of protected confidences
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	KS v Veitch [2012] NSWCCA 266
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Francis William Cable - Accused
Representation:	Counsel: Mr J Crespo – Crown Mr B Robinson - Accused Solicitors: Ms V Hampel – Protected Confider
File Number(s):	2012/393936