Solicitors:
Ms V Hampel - Protected Confider
File Number(s): 2012/393936
[2]
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:
1. The Court cannot grant an application for leave under this Division unless the Court is satisfied that:
1. 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
2. Other documents or evidence concerning matters to which the protected confidence relates are not available, and
3. 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.
1. Without limiting the matters that the court may take into account for the purposes of determining the public interest and preserving the confidentiality of protected confidences and protecting the principal protected confider from harm the court must take into account the following:
1. The need to encourage victims of sexual offences to seek counselling,
2. That the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship,
3. The public interest in ensuring that victims of sexual offences receive effective counselling,
4. That the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person,
5. Where the disclosure of the protected confidence is sought on the basis of a discriminatory relief or bias,
6. That the adducing of the evidence is likely to infringe a reasonable expectation of privacy.
1. 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.
2. 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.
3. The Court must state its reasons for granting or refusing to grant an application for leave under this division.
Section 299D(6) is not relevant to current considerations. I pause for a moment to point out that the Court has received a confidential statement in affidavit form from PH9, the "principal protected confider" in accordance with s 299D(3) of the Act and I have taken that material into account.
Pursuant to s 298 of the Act two subpoenae were issued by leave of the District Court, directing a medical practice and a psychologist to produce documents to the Court. There was one minor difference in the schedules of each subpoena, (more a typing error it would seem rather than anything of substance) but essentially each subpoena requested the production of "clinical notes, referrals and report(s) of consultations and treatment and counselling of PH9 (date of birth provided) in respect of his mental health for the period from 1 January 2010 and 1 April 2014." No issue has been taken with the width of the schedules in the respective subpoena although one might have thought that they were somewhat inelegantly drafted.
The two subpoenaed parties have produced relevant documents. There can be no doubt that to all intents and purposes the material protected is relevantly a protected confidence under the Act. Application is now made by the accused for access to relevant documents. The application is opposed by the principal protected confider, PH9.
In this particular matter no issue of "misconduct" arises pursuant to s 301 of the Act. The circumstances in which the subpoenae have issued, somewhat at the heel of the hunt, arise from two matters involving information volunteered by the principal protected confider. In his statement to police, which is the basis upon which the counts relating to this complainant and the accused rest, made on 1 October 2013 (at para 34) the protected confider said this:
"In the past two to three years I was starting to have problems at night time when I would go outside and I felt that people were attacking me and raping me. During the night I woke up and I was like I am 12 years old again and I have visions of people who abused me and I feel like I am under attack. I have in past armed myself with knives and machetes and gone out into my paddocks. At the time I think I am fighting the people who abused me. When I wake up in the morning I don't remember exactly what has occurred but I have had to go and retrieve machetes and knives from trees on my property. I always deep down knew that I had been sexually abused but I was too embarrassed to remember and thought I would forget about it eventually."
This statement, as I said, sets out the history of the protected confider's education at a particular school in south-east Sydney from year 7, meeting the accused in February 1965 and detailing various sexual assaults that were committed upon him at La Perouse during swimming excursions and at the school during 1965 and up until his last contact with the accused in 1967.
The protected confider gave evidence at the committal proceedings.
The complainant was asked this question at the committal proceedings, "Could I just ask you how you came to give that statement to the police?" This is a reference to the statement signed on 1 October 2013. The complainant outlined matters in that interview that are not for publication but which were detailed in court.
I have extensive written submissions from the accused through his legal counsel largely setting out the statutory provisions including, within it, a number of submissions made justifying access to documents that have been subpoenaed. To summarise what is set out in those written submissions it is submitted, by reference to part of what I have read above from the committal proceedings, that there are "real concerns" about the reliability of the complainant's account, in the context of the disclosure made by the complainant in his statement from which I have already read from that he had been treated by his general practitioner for depression and that he had been diagnosed with post-traumatic stress disorder (PTSD). It is also identified that the protected confider's psychologist, who has been one of the subpoenaed parties was a "support person" for the complainant when he gave evidence at the committal proceedings. It is submitted on behalf of the accused that "granting access...will provide documents" which are "very relevant to the witness' reliability". I have some concerns about the confidence of the prediction made without access to the documents.
Be that as it may, submissions were put about issues relating to the need to address the reliability and honesty of the witness and by reference to the relevant statutory provisions it is submitted that the public interest in admitting the evidence as it is expressed in the written submissions but in fact are permitting access to the material in the subpoena documents outweighs the public interest in preserving the confidentiality of protected confidences and protecting the confider from harm. Primarily this arises, it is submitted, by reason of 'self‑disclosure'.
The applicant cites the decision of the Court of Criminal Appeal of KS v Veitch [2012] NSWCCA 266 particularly the observations of Basten J at [34]. His Honour said inter alia at that paragraph
"...an assessment that the information has substantial probative value, in the usual case no doubt casting doubt on the veracity and reliability of the complainant, will militate in favour of disclosure where it would give rise to a doubt as to the guilt of the accused."
I am very familiar with the judgment, as I mentioned in discussion, because I was the Judge at first instance that was given the unhappy task on the day of the commencement of the trial of dealing with an issue of protected confidences in circumstances where nobody took issue with the improper way in which the subpoenae had been initially issued. As would be clear from the judgment, very little assistance was provided to me in the determination of the application on the day.
Learned counsel for the protected confider here submits that the Court would not be satisfied of the matters required to be established pursuant to s 299D(1)(a)(b)(c) which I have earlier cited. It is submitted in general terms that, bearing in mind counsel for the protected confider has had opportunity to examine the documents, that there is no material of substantive probative value. In any event, there are other sources of information such as evidence and documents, part of which I have read, which concern matters arising potentially in the protected confidences already available to the accused. It is further submitted that the public interest in preserving the confidentiality of the protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the confidence of the document of substantial value.
The protected confider, through his counsel, relies upon the confidential affidavit which I earlier referred to and which I have read. Learned counsel for the protected confider also points to those matters which must be taken into account in considering the terms of s 299D(1)(c), including the need to encourage victims of sexual assaults to seek counselling, that the effectiveness of counselling is likely to be dependent on the maintenance of confidentiality, the public interest in ensuring the victims of sexual offences receive effect counselling and the potential for damage to, or the undermining of, the relationship between the counsellor and the counselled person.
It was submitted by learned counsel that if access was granted this would "send a message to the community" of the vulnerability of people having their private confidential communications exposed to the wider world and certainly it would send a message to the community of the adverse effect upon the welfare of the particular complainant in the context of the information available to the court in the confidential affidavit.
The learned Crown Prosecutor was asked to comment and he remains neutral of course. He has not had access to the material. He simply pointed out that PH9 was a central witness to the particular counts concerning him and the Crown case was dependent upon his reliability and honesty as central to proof of the Crown case.
Having regard to ss 299B and 299C of the Act, the Court has complied with what is required under s 299B(1) - (4) and the accused has complied with the requirements of notice under s 299C, as is self-evident from the presence of the legal representative of the protected confider. I have already noted the terms of s 299D. Having read the material produced under subpoena and also, as I said earlier on two occasions, had regard to the affidavit of the protected confider, I have concluded a number of aspects of the matter on the available evidence in the context of the legislative requirements upon me.
In reaching my decision I have also had particular regard to the judgment in KS v Veitch as it relates to the operation of Pt 5 Div 2, particularly at [14] ‑ [19], [24] - [25] and [30] - [35] in the judgement of Basten J. I have identified for the purposes of these proceedings the subpoenaed material and made it an exhibit on the voir dire. As to the contents of exhibit 4 on the voir dire, that is the relevant clinical notes et cetera produced by the "Florence Street Medical Practice", I have come to the conclusion that much of the material has either no relevance or no probative value. It essentially is irrelevant to consideration of matters concerned with the mental health of the protected confider. Such material that relates to the protected confider's mental health either does not have substantial probative value, or in my view, is of such a character that by operation of s 299D(1)(b) primarily and s 299D(1)(c) cannot be made available to the accused.
As to the material produced by the psychologist, which is exhibit 3 on the voir dire, much of the material produced by the psychologist comprises notes and/or reports, many hand-written, some typed, which should not be provided given that the bulk of their character is truly counselling notes, extensive as they are. They, in my view, cannot be provided to the accused by reason of the operation of s 299D(1)(b) and (c) of the Act, particularly by regard to the latter provision, taking into account the need to encourage victims of sexual assaults or offences to seek counselling, the need to maintain the maintenance of confidentiality of the counselling relationship as provided by subs (2)(b), the public interest in ensuring that victims of sexual offences receive effective counselling and because the disclosure of the protected confidences contained within these counselling notes is likely to damage or undermine the relationship between the counsellor and the counselled person (s 299D(2)(c)). Some of the matters recorded by the psychologist are mundane administrative notes concerning the making of appointments and the like which of course, are of no probative value in any event.
However, there is part of the material that in my view ought be made available to the accused. This relates to type-written notes by the psychologist dated 8 October 2013. I pause for a moment to note that these notes have been recorded as I would understand the chronology of events, seven days after the protected confider had made his statement to the police. The notes that I would make available to the accused are part of five or so pages of typed notes that appear to, on my view of it, relate to a session of counselling with the psychologist. The particular part of the notes that in my view has substantial probative value in the context of s 299(D)(1)(a) of the Act are matters of history concerning the circumstances in the identification of the alleged sexual abuse by the accused on the part of the protected confider.
I have had obvious regard to the terms of s 299D(1)(b), particularly given those passages that I have read from the statement of the complainant and the evidence the complainant gave at the Local Court. My examination of the relevant part of the history that I would be prepared to provide on the call of the subpoena, in accordance with the requirements of Pt 5 Div 2 of the Act, is material that supplements what has already been disclosed by the complainant, it would appear, voluntarily. Particularly in the statement he gave to police which no doubt gave rise to the circumstances of his examination at the committal proceedings and the further information that the protected confider provided to the Court and is in the public domain.
It seems to me with respect that some of the matters that I would be prepared to make available to the accused fall within the rubric of consideration identified by Justice Basten at [34] of the judgment of KS. In permitting access to this material, it may be thought on analysis that some of the matters are matters already identified within the statement of the complainant or alternatively in the evidence of the committal proceeding which I have earlier cited. However, such additional material provided within the history provided by the protected confider or complainant must be seen in a proper context. Thus, it would seem to me with respect that such matters that are disclosed in the material I would allow to be inspected that has already put in the public domain, would not in my view cause any additional embarrassment to the protected confider or any additional harm to the protected confider, than that that has already arisen by the disclosure by the protected confider in his statement to police and in his evidence.
I pause for a moment to acknowledge the fact that when a person brings an allegation of sexual assault against another person, there is implicit or inherent in that process a considerable degree of embarrassment. There is also a considerable degree of trepidation and concern about the disclosure of matters personal that, no doubt on the part of the complainant, would cause considerable distress.
That I acknowledge. I certainly acknowledge the spirit of the legislation to which I have referred to try to minimise such harm or reaction for a protected confider. However, the additional matters that shed light upon what has already been disclosed by the protected confider emerge from the material that I am making available. Those matters need to be seen in the context of the information provided by the protected confider to the psychologist, according to my understanding of the relevant note, on 8 October 2013.
So far as the probative value of the material is concerned, I have concluded it has substantial probative value. As I have already pointed out that substantial probative value, in part, has to be considered in the context of this part of the history being provided almost contemporaneously with the making of the statements that gave rise to the charging of the accused in relation to the allegations made by PH9.
What I propose to do therefore is as follows. I provide to counsel for the protected confider a copy of the extract from those type‑written notes now. I propose to place another copy of that document, subject to any suggestions counsel for the protected confider may have about tidying up the very rough editing task I have undertaken in my chambers this morning, in an envelope which will be sealed and only 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, will be each placed in sealed envelopes, again only opened at the direction of or further order of the District Court or the Supreme Court of New South Wales.
[3]
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Decision last updated: 29 June 2015