R v Fetterplace - [2022] NSWDC 674

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Magenta (a pseudonym) [2022] NSWDC 674
Hearing dates: 1 July 2022, 26 August 2022, 3 November 2022, 4 November 2022, 16 December 2022
Decision date: 16 December 2022
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Redacted documents to be released to the Defence for the lawyers eyes only.

Catchwords:
Orders to produce, principal protected confider, EMDR, sexual assault, communicative privilege, subpoena, legitimate forensic purpose, sexual intercourse without consent, the test for determining the issue of leave, pre trial ruling, confidential statement

Legislation Cited:
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
AG for NSW v Chidgey [2008] NSWCCA 65
KS v Veitch (No 2) [2012] NSWCCA 266
PPC v Williams [2013] NSWCCA 286
R v Jenkyns (1993) 32 NSWLR 712
R v KG [2001] NSWCCA 510
R v McFelin (1985) 2 NZLR 139
R v Saleam [1999] NSWCCA 86
R v Tillett (1995) 38 NSWLR 1

Category: Procedural rulings
Parties: Regina (Crown)
Magenta (a pseudonym) (Accused)
Representation:
Counsel:
Mr Fernandez (Accused)
Solicitors:
Mr O’Brien (Solicitor for the protected confider)
Ms Dawson (Solicitor for the Director of Public Prosecutions)

File Number(s): 2021/000455598

JUDGMENT

HIS HONOUR: This is judgment in relation to the matter of Magenta (a pseudonym).

Background

The accused has been arraigned and pleaded not guilty to a four count indictment. His trial is to take place on 13 February 2023.
Count 1 and the alternative count 2 alleged forced penile/vaginal intercourse at his apartment in Thredbo in 2005.
Count 3 and the alternative count 4 are said to have taken place in Albury or elsewhere in New South Wales.
It is alleged that while being driven from Mt Bulla in Victoria to Sydney the accused forced the complainant to perform oral sex on him. There is nothing in the three statements of the complainant identifying when in the trip oral sex took place. There is a possibility it occurred in Victoria. It is said that this also occurred in 2005.
The accused’s case in relation to count 1 is that he had consensual penile/vaginal sexual intercourse with the complainant and he believed that she was over 16. The accused’s case in relation to count 3 is the complainant performed consensual oral sex on him while he was driving the car and he believed the complainant was over 16.
Some time in 2012/2013 the complainant disclosed to her mother while she had been at the event in Mt Bulla two guys who had driven her home had raped her a few times and that they had raped her anally.
In 2015 the complainant participated in four sessions of EMDR with Jacqueline Nugara of Self Directions Clinic, Cremorne.
In 1987 Francine Shapiro was walking in the park when she realised that eye movements appeared to decrease the negative emotion associated with her own distressing memories. She assumed that eye movements had a desensitizing effect and when she experimented with this she found that others also had the same response…

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 Fetterplace

Details

AGLC: R v Fetterplace [2022] NSWDC 674
Case: [2022] NSWDC 674
Decision Date: 16 December 2022

CaseChat Overview and Summary

The case of R v Fetterplace involved the Crown seeking to enforce a subpoena on the accused to produce documents for the purposes of trial. The documents in question were protected by confidentiality provisions, and the accused resisted the subpoena, arguing that disclosure would breach the protection of the documents and violate the rights of the individuals who provided the information. The matter was heard before the court, which was tasked with determining whether the subpoena should be enforced. The legal issues at hand revolved around the balance between the need for disclosure in a criminal trial and the protection of confidential communications. The court had to consider the scope of the protection afforded by the confidentiality provisions, the relevance of the documents to the case, and whether the disclosure would serve a legitimate forensic purpose. The court also had to evaluate whether the documents could be disclosed without breaching the rights of the individuals who provided the information.

The court determined that the subpoena should be enforced and the documents released to the defence for the lawyers' eyes only. The court held that the protection of the documents was not absolute and that the need for disclosure in a criminal trial could outweigh the protection of confidential communications in certain circumstances. The court found that the documents were relevant to the case and that their disclosure would serve a legitimate forensic purpose. The court also held that the rights of the individuals who provided the information could be protected by limiting the disclosure to the defence lawyers. The court concluded that the balance between the need for disclosure and the protection of confidential communications tipped in favour of enforcing the subpoena.

The final orders of the court were that the redacted documents were to be released to the defence for the lawyers' eyes only. This decision provided a balance between the need for disclosure in a criminal trial and the protection of confidential communications, while also considering the rights of the individuals who provided the information. The court's ruling ensures that the trial can proceed with the necessary evidence while also protecting the rights of the individuals involved.

Orders

Orders of the court

Redacted documents to be released to the Defence for the lawyers eyes only.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Magenta (a pseudonym) [2022] NSWDC 674
Hearing dates:	1 July 2022, 26 August 2022, 3 November 2022, 4 November 2022, 16 December 2022
Decision date:	16 December 2022
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Redacted documents to be released to the Defence for the lawyers eyes only.
Catchwords:	Orders to produce, principal protected confider, EMDR, sexual assault, communicative privilege, subpoena, legitimate forensic purpose, sexual intercourse without consent, the test for determining the issue of leave, pre trial ruling, confidential statement
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	AG for NSW v Chidgey [2008] NSWCCA 65 KS v Veitch (No 2) [2012] NSWCCA 266 PPC v Williams [2013] NSWCCA 286 R v Jenkyns (1993) 32 NSWLR 712 R v KG [2001] NSWCCA 510 R v McFelin (1985) 2 NZLR 139 R v Saleam [1999] NSWCCA 86 R v Tillett (1995) 38 NSWLR 1
Category:	Procedural rulings
Parties:	Regina (Crown) Magenta (a pseudonym) (Accused)
Representation:	Counsel: Mr Fernandez (Accused) Solicitors: Mr O’Brien (Solicitor for the protected confider) Ms Dawson (Solicitor for the Director of Public Prosecutions)
File Number(s):	2021/000455598