R v Firebrace (No 3) - [2014] NSWDC 276

District Court

New South Wales

Medium Neutral Citation: R v Firebrace (No 3) [2014] NSWDC 276
Decision date: 12 August 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
(1) Documents comprising MFI 17 held to contain protected confidences.
(2) Balance of disputed documents held not to contain protected confidences.
(4) Retrospective leave granted to issue subpoenas.

Catchwords: CRIMINAL LAW - sexual assault - evidence - subpoenas - communications privilege - access to documents - purpose of the legislation - substantial probative value - leave; WORDS AND PHRASES - “protected confidences” - “counsels” - “treats” - “therapy”
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 296, 299D
Mental Health Act 2007 (NSW)
Cases Cited: KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46
NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535
R v Markarian [2012] NSWDC 197
R v Russell [2013] NSWDC 129
Texts Cited: Macquarie Dictionary (6th ed 2013, Macquarie Dictionary Publishers)
New South Wales, Parliamentary Debates, Legislative Assembly, 21 March 2002, 976 (Robert Debus, Attorney General)
Category: Procedural and other rulings
Parties: Regina (Crown)
Wesley Firebrace (accused)
Representation: Counsel: K Stares (accused)
Solicitors: M Knowles (Director of Public Prosecutions)
A Harris (complainant)

File Number(s): 2013/00074102

Judgment

I presided over the trial of Wesley Firebrace at Parramatta recently. Wesley Firebrace’s legal representatives issued subpoenas to Campbelltown Hospital and to the Campbelltown Mental Health Unit. The subpoenas required production of documents connected with the complainant in the proceedings.
Mr Firebrace had been accused of raping the complainant. I should immediately add that yesterday the jury found him not guilty of that charge and I acquitted Mr Firebrace.
Because the proceedings were sexual assault proceedings, the issue of the subpoenas and the production of documents raised issues of sexual assault communications privilege which is dealt with in the Criminal Procedure Act1986 (NSW).
During the course of the proceedings, specifically on 31 July, 1 August and 4 August 2014, I made rulings concerning the production of some of the documents which had been delivered to the Court in compliance with the subpoenas. In fact the subpoenas, according to the Criminal Procedure Act, ought not to have been issued by this Court without leave. I do not think leave was granted. It seems to be common ground that I can, and should in this case, grant that leave retrospectively and I do so.
The real question concerned whether the documents should be made available to defence counsel who was representing Mr Firebrace. This was a controversial issue.
The complainant was represented in this aspect of the proceedings by Mr A Harris who assisted me in determining the matters and relied upon submissions prepared by Mr George Breton. Counsel for Mr Firebrace was Ms K Stares who also filed written submissions and relied upon those.
At this point it is relevant to observe that defence counsel in these kinds of applications do not yet have access to the documents. They…

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 Firebrace (No 3)

Details

AGLC: R v Firebrace (No 3) [2014] NSWDC 276
Case: [2014] NSWDC 276
Decision Date: 12 August 2014

CaseChat Overview and Summary

The case of R v Firebrace (No 3) involved the accused, Firebrace, who was on trial for sexual assault. The primary issue before the court was whether certain documents, which were subject to a communications privilege, could be disclosed to the prosecution. These documents were related to therapy sessions that Firebrace had attended. The case was heard in a higher court, which had jurisdiction over the matter.

The legal issues before the court were multifaceted. Firstly, the court needed to determine whether the documents in question were protected by the communications privilege. This required an analysis of the purpose of the legislation surrounding such privileges and whether the documents contained protected confidences. Secondly, the court had to consider whether the probative value of the documents outweighed any prejudice to the accused if they were disclosed. Lastly, the court had to decide whether leave should be granted to retrospectively issue subpoenas for the disputed documents.

In its reasoning, the court concluded that certain documents, referred to as MFI 17, contained protected confidences and could not be disclosed. The court found that these documents pertained to communications between Firebrace and his counsellors, which were protected by the privilege. However, the court determined that the remaining documents did not contain protected confidences and could be disclosed. The court held that these documents were not communications with counsellors for the purpose of therapy and did not meet the threshold for protection. Furthermore, the court granted retrospective leave to issue subpoenas, allowing the prosecution to obtain the documents that were not protected by privilege.

The final orders of the court were that documents comprising MFI 17 were held to contain protected confidences and could not be disclosed. The remaining disputed documents were held not to contain protected confidences and were subject to disclosure. The court also granted retrospective leave to issue subpoenas for the non-privileged documents. This decision clarifies the scope of communications privilege in the context of therapy and sets out a framework for assessing the disclosure of such documents in criminal proceedings.

Orders

Orders of the court

(1) Documents comprising MFI 17 held to contain protected confidences.

(2) Balance of disputed documents held not to contain protected confidences.

(4) Retrospective leave granted to issue subpoenas.

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 Firebrace (No 3) [2014] NSWDC 276
Decision date:	12 August 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	(1) Documents comprising MFI 17 held to contain protected confidences. (2) Balance of disputed documents held not to contain protected confidences. (4) Retrospective leave granted to issue subpoenas.
Catchwords:	CRIMINAL LAW - sexual assault - evidence - subpoenas - communications privilege - access to documents - purpose of the legislation - substantial probative value - leave; WORDS AND PHRASES - “protected confidences” - “counsels” - “treats” - “therapy”
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 296, 299D Mental Health Act 2007 (NSW)
Cases Cited:	KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46 NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535 R v Markarian [2012] NSWDC 197 R v Russell [2013] NSWDC 129
Texts Cited:	Macquarie Dictionary (6th ed 2013, Macquarie Dictionary Publishers) New South Wales, Parliamentary Debates, Legislative Assembly, 21 March 2002, 976 (Robert Debus, Attorney General)
Category:	Procedural and other rulings
Parties:	Regina (Crown) Wesley Firebrace (accused)
Representation:	Counsel: K Stares (accused) Solicitors: M Knowles (Director of Public Prosecutions) A Harris (complainant)
File Number(s):	2013/00074102