Thursday, March 13, 2003

Getting Justice Wrong DPP make full admissions

Back in May 2001 Nicholas Cowdery QC made an error at law by giving a speech called Getting Justice Wrong at the University of New England, Armidale Thursday, 31 May 2001. Sir Frank Kitto, Lecture now published at the DPP website. At page six, paragraph 3 under the heading:


One area in which we are most certainly getting justice grievously wrong is in mandatory sentencing, in whatever form it may exist (be it called mandatory sentencing, mandatory minimum sentencing, grid sentencing, guideline sentencing or whatever). In all its forms, parliament presumes to fix or severely circumscribe the penalty that will be imposed by the court.

But the imposition of punishment is the task of the judiciary in our system of government and the doctrine of the separation of powers should ensure that the actions of one branch of government do not improperly impinge on the functions of another.

That is especially so when justice in the individual case may be denied by the inability of the court to give appropriate weight to the individual circumstances of both the offence and the offender.

The courts do not tell parliament what to do (unless it gets it wrong); parliament should not tell the courts what to do, beyond setting the legal limits within which they may do it.

We have mandatory minimum sentencing in limited circumstances in New South Wales. In 1996 an Act was passed providing for mandatory life imprisonment for what were intended to be extreme cases of murder and drug trafficking. It has never been invoked. We already had provisions enabling "life, meaning life" sentences to be imposed at the discretion of the courts in murder and drug trafficking and under those provisions, which are not mandatory, about 15 prisoners are presently serving such terms in New South Wales. The 1996 legislation was just political grandstanding.

Another piece of political posturing had occurred in 1994 when parliament purported to pass the Community Protection Act providing for one man, Gregory Wayne Kable, to be imprisoned beyond the expiration of the sentence he was serving for the manslaughter of his estranged wife. He had killed her during an argument over access to their children in 1989.

Mr Kable had been corresponding from prison about the welfare of his children in ways that gave the authorities concern about how he might act on his release.

[Because Mr Kable had not 'seen or heard' of his children's 'status' since his initial incarceration. Whereby at all material times he had that responsibility to his children and not to the authorities, to ensure that his children were safe from harm! He had not been corresponding with his children from prison but with authorities who denied him such access and contact with his children.]

The Community Protection Act which applied only to Mr Kable provided for further detention for periods of up to six months at a time, upon proof of his likelihood to commit violence and the appropriateness of such an order for the protection of the community.

There was a sorry course of litigation until in 1996 the High Court held that the legislation was invalid as being unconstitutional and an improper interference with the judicial function.

It was an extreme example of parliament attempting to act as accuser and judge by prescribing a civil penalty against a citizen who was otherwise entitled to freedom.

Mr Kable has been compensated by the taxpayer, [for the litigation] after more litigation, for his unlawful detention under this invalid Act. [But not compensated for the damage caused.]

In other jurisdictions, notably the Northern Territory and Western Australia, mandatory penalties are prescribed more precisely as part of the criminal penalties to be imposed and, unfortunately, quite validly. Not only do they arrogate to parliament a function of the judiciary, but they apply to offences in such a way that they unfairly discriminate against Aborigines, the young and women (largely because of the types of offences to which they apply).

They are inhuman in their operation and not a cost-effective treatment of criminal offending. Parliament has the power to make laws of that kind, but they are offensive to the constitutional doctrine of the separation of powers, unreasonably fetter the discretion of the courts and impact indirectly upon the independence of the judiciary.

They also contribute to an undesirable tension between the courts and the other arms of government.

Our politicians at state and territory and Commonwealth levels have chosen to ignore appropriate pressure from the international community to bring these laws into line with commonly accepted international standards.

If there are problems with inadequate sentences being imposed by the courts, then the answer lies in the ability of the Crown to appeal against those sentences and also in the ability of the appeal court to provide guideline sentencing judgments if there are clear inconsistencies or deficiencies in sentencing for particular offences. Both avenues are available and used in New South Wales. We must resist any attempt to extend mandatory sentencing in this state.

Where Nicholas Cowdery got it wrong?

Kable's claim against the State of New South Wales and the DPP with respect to the false imprisonment, malicious prosecution, abuse of process and assault following his detention under the invalid Community Protection Act of 1994.

Whilst it is a long time since we have published the status of the case we have not been idle. We have issued Notices to Produce against both Defendants. Nevertheless having gone through extensive exercise to obtain documents, which include all documents under the heading "Taskforce Harm", we came to the conclusion there were other documents which we needed in order to prosecute this claim.

Whilst the First Defendant, the State of New South Wales, are undoubtedly responsible for the administration for the Community Protection Act it was not the action of the First Defendant which resulted in the Judge's order for imprisonment. Therefore the First Defendant has the defence that they were acting under the orders of the Supreme Court properly made at the time. Judges, of course, are immune from civil litigation when exercising their judicial powers and therefore do not fall within the definition of the State of New South Wales for that purpose.

As you can see, the prosecution of this litigation is not without its problems and we did not think it was a good idea to go to a hearing. But Nicholas Cowdery QC in his speech not only told us his thoughts about the case but also published his views.

Nicholas Cowdery made full admissions in the Kable Case. Gregory Kable Vs The State of New South Wales. NSW being the first defendant and the Department of Public Prosecutions as the 2nd defendant in a case currently before the Supreme Court of New South Wales that has not been to a full hearing yet? Cowdery not only made full admissions he went on to acknowledge the damages and then to publish his findings onto the Internet website at the DPP.

How can Nicholas Cowdery QC as head of the DPP the 2nd defendant in Kable V's the State of New South Wales continue to defend matters he himself has published as Getting Justice Wrong?

Does this statement diminish any public support to have this matter resolved so Mr Kable can get on with his life in peace? Or did Cowdery feel sorry for Kable knowing the State was wrong and spoke out in defence of Civil Rights and in defiance of the New South Wales Government?

Related Audio:

Kable1 Alan Jones CPAct

Kable2 Alan Jones CPAct

Kable3 Alan Jones CPAct

When is Michael Richardson going to remove the offending Family Court affidavit from the NSW Parliament website?
Criminal: Hills district MP Michael Richardson. When is he going to remove these uncorroborated lies and family court pleadings on the confidential Family Court affidavit from the NSW Parliament website?

Updated 2010:

Criminal: Hills district MP Michael Richardson. When is he going to remove these uncorroborated lies and family court pleadings on the confidential Family Court affidavit from the NSW Parliament website?

How can politicians commit criminal acts and not be subject to the law like everyone else? When are the police going to charge him for this crime?


After the Community Protection Act 1994 was struck down by the High Court of Australia Getting Justice Wrong DPP make full admissions then NSW parliament reacted again as follows:

Community Protection (Dangerous Offenders) Bill

Mr RICHARDSON (The Hills) [2.48 p.m.]: I move: That general business order of the day (for bills) No. 14 have precedence on Thursday, 10 April.

It is urgent that the Community Protection (Dangerous Offenders) Bill be reordered and debated by this House because at this very moment Gregory Wayne Kable is in the Parramatta Family Court seeking to gain access to his children, Brooke and Clarke Kable, aged nine and 11.

[After the High Court of Australia struck down the Community Protection Act 1994.]

Mr Kable wants to see them for two hours four times a year, at the end of school terms, with a view to building up a long-term relationship with them. He also wants to know their new names.

He has completed a 12-week parent training course and has approached the St Vincent de Paul Society and the Salvation Army to ask whether they could supervise the visits.

He says that the children want to see him but that their minds have been poisoned by their guardians. He claims that, far from punishing him,denying access to his children is punishing them.

(Please Note: The rest of Michael Richardson's parliamentary debate is published on the NSW Parliamentary website and not reproduced here for the following reasons...)

Concerning publication of my children’s names by the Member for The Hills in parliamentary debate and now published on the NSW Parliamentary website.

I have asked the NSW Parliament to remove, not only my children’s names but the wrong, uncorroborated, and plagiarised information, and the Family Court Application.

Young adults like my two children, ought not be haunted or offended when or if they might decide to search their names on the Internet, and that if they did, that they would not be provided with such offensive and wrong material, for all their friends, relatives, and the general public to search for and see as well.

Complaint to the NSW Parliament  House About it Updated 8/3/2010:

Letter to NSW Parliament House

* Member of the Legislative Council
* Member of The Greens
Parliament House,
Macquarie Street,
Sydney NSW 2000
Phone (02) 9230 3551
Fax (02) 9230 3550
Website :

Dear Ms Rhiannon,

How are you going? I sent this to your email address above and have not received any response to date, so I am forwarding this again to you in the mail.

As I am suing State Parliament for damages, on foot, for false imprisonment and assault, (the case coming up to court on 9 November this year), and as well, I have a conflict of interest with my local member Ms Clover Moore, if you don’t know.

So I was wondering if you could assist me and pass this material to the person who runs the parliament website to have the wrong information removed.

When my daughter Brooke or son Clark type their names in google they get Mr Richardson a Liberal members, wrong information. See link below:

It would appear to the writer that the NSW Parliament website is in breach of S121 of the family Law Act 1975, because at the time the children were minors and certain rules applied, and I would ask if you could assist me with asking that the parliament remove it.

Thanks Regards
Gregory Kable
29 August 2009

Letter From NSW Parliament House
Mr G. Kable
October 2009

Dear Mr Kable.

I refer to your letter dated 8 October 2009, concerning publication of your children's names by the Member for The Hills in debate. The Hon Lee Rhiannon has also emailed me in relation to this matter.

I acknowledge your concern that the Member named your children in the course of parliamentary debate, and note your advice that the information made public by the Member was probably derived from a Family Court application.

While publication of such information outside of parliamentary proceedings may breach the Federal Family Law Act, speaking in a parliamentary debate Members are able to exercise a freedom of speech which is not constrained by statutory prohibitions.

The basis of this principal is that the law of parliamentary privilege provides absolute immunity to the giving of evidence before the House Committee. As noted in Odgers, it is “a fundamental principle that the law of parliamentary privilege is not affected by a statutory provision unless the provision alters that law by expressed words” [51].

The New South Wales Legislative Assembly Hansard record of debate held in 1997 has been long published, and the circumstances you refer to in your letter unfortunately do not fall within the House procedures which would enable you to make a citizens right of reply.

Yours sincerely
Richard Torbay

Letter To NSW Parliament House
Mr Richard Torbay
Suit Parliament House
Macquarie Street

Re: My Family Court Application on Parliament Website

Dear Mr Torbay,

Thank you for responding to my complaint. I refer to your letter dated October 2009, received on 19 October, concerning the publication of my children's names on the Parliament website, alongside wrong information, by the Member for the Hills in parliamentary debate.

There is no absolute immunity to the giving of evidence that has been provided by two or more parties on a confidential application to the Family Court of Australia, then plagiarized and given before a House or a committee. That material is confidential.

The basis for this principle in a parliamentary debate about the ‘contents of an application’ to the Family Court of Australia is constrained by statutory provisions. As noted in Odgers, preparation and publication of documents p55, “ the contents of a document which has come into existence independently of proceedings in Parliament, for example, a report or letter which is exchanged between two or more parties and is subsequently submitted to a House or a committee, is not protected by parliamentary privilege. (For an application of this principle, see Szwarcbord v Gallop 2002 167 FLR 262.)”

I once again ask that that wrong confidential material and my children's  names be removed from the parliament website.

This is my final notice, you are hereby given 14 more days to notify the writer that the confidential, offending and unlawful material has been removed, otherwise this material will be forwarded to my lawyer for a further damages claim against NSW.

Gregory Kable
19 October 2009

Letter To NSW Parliament House
Mr Richard Torbay
Suit Parliament House
Macquarie Street

Re: My Family Court Application on Parliament Website

Dear Mr Torbay,

As I have received no response to the final notice I sent to you dated 19 October 2009, to remove from the NSW Parliament Website in 14 days, (my children’s names, the confidential, wrong, uncorroborated, and plagiarised information, from the Family Court Application).

Well since then I spoke to Lucy your secretary by phone on 6 November 2009. She told me that you were seeking legal advice about the complaint by us and that my letter was received in your office on 21 October 2009.

I would have thought that common sense would have prevailed when I pleaded to Parliament to remove the material.

Young adults like my two children, ought not be haunted or offended when or if they might decide to search their names on the Internet, and that if they did, that they would not be provided with such offensive and wrong material, for all their friends, relatives, and the general public to search for and see as well.

It is with regret that I must inform you that the matter has now been filed in the Supreme Court of NSW at Sydney. Please see Notice of Status Conference attached for your perusal.

I will be seeking a writ that commands the performance of an act required by law. In this instance the removal of the offensive material as above stated.  We will also be seeking costs and damages.

My instructions are not to serve the filed documents until February 2010 at the latest on the basis that Lucy said that you were seeking legal advice and that you would get back to me about it.

So thanks for that and I guess I will either hear from you or not by the time the matter is due for service late February. We would be pleased if you would just have Parliament remove the material and that the matter including costs could be resolved.

Gregory Kable
12 December 2009

Note:  Subsequently no further communication was sent by the NSW Parliamentary Speaker Mr Richard Torbay in relation to his alleged legal advice and the litigation was discontinued by myself on the 4th of  March 2010 because I was unable to get legal assistance.


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