R v O'Toole (No. 2)

[2020] NSWDC 432

District Court

New South Wales

Medium Neutral Citation:	R v O’Toole (No. 2) [2020] NSWDC 432
Hearing dates:	19 June 2020
Decision date:	22 June 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application granted
Catchwords:	Application by accused to cross-examine complainant on statement made by complainant to the Royal Commission into Institutional Responses to Child Sex Abuse
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Lipton [2011] NSWCCA 247
Category:	Procedural rulings
Parties:	Director of Public Prosecutions (Crown) Ian Wayne O’Toole (Accused)
Representation:	Counsel: Ms J Smith (Crown) Dr R Webb (Accused) Solicitors: R Endacott (Crown) R Storie (Accused)
File Number(s):	17/229023
Publication restriction:	Pursuant to s 8 of the Court Suppression and Non‑Publication Orders Act 2010, non-publication of all complainants names or information tending to reveal their identity, including the place of any alleged offence, until further order.

Judgment on application to cross-examine on statement made to the royal commission into institutional responses to child sexual abuse

Introduction

1. During cross-examination of the complainant, CW, counsel for the accused informed the court that he wished to cross-examine CW in respect of a statement she had made to the Royal Commission into the Institutional Responses to Child Sexual Abuse (“the Royal Commission”). The statement, which was prepared in 2013, was marked for identification as MFI 7.

2. The court was informed that the statement had formed part of the Crown brief served on the accused in accordance with the Crown’s duty of disclosure.

3. The Crown informed the court that the statement had been prepared by CW after she had contacted the Royal Commission in accordance with Practice Guideline 3 issued by the Royal Commission (MFI 10). The Crown further informed the court that the statement was prepared before CW gave evidence in private session to the Royal Commission, and the Crown was not aware of any order made by the Royal Commission in respect of the statement. The Crown further advised that the Royal Commission had not provided the statement to the officer in charge; the statement had been provided by CW.

4. The Crown also provided Practice Guideline 1 issued by the Royal Commission which became MFI 9. It included the following:

“38 Statements or disclosures made or documents handed over by you in a private session cannot be used in evidence against you in civil or criminal proceedings. This protection is also available to any support persons the Commissioner agrees can attend a private session with you and who make a statement or provide documents in a private session.”

5. Practice Guideline 1 also included the following:

“40 The information you provide will be kept confidential unless

(a) you agree to it being made public through a later hearing, or

(b) The Royal Commission provides it to a law enforcement body …”

The accused’s submissions

6. The accused submitted that the statement was not privileged and having been released to the New South Wales Police Service, it had become a public document. It was therefore not a document within the purview of public interest immunity.

7. It was further submitted that even if the document was privileged, that privilege had been waived as it had been provided to the accused in the brief of evidence. This gave rise to a legitimate expectation that it could be used in the proceedings.

8. The accused advocated that a narrow construction should be placed on [38] as set out above, to restrict the meaning of the words “cannot be used in evidence against you in … criminal proceedings”, as being confined to use against a person charged with a criminal offence.

9. Finally, it was submitted that document could not be rendered to be privileged under any of the statutory schemes relating to privilege.

The Crown’s submissions

10. The Crown submitted that [38] of Practice Guideline 1 should not be given the narrow meaning advocated by the accused. It clearly related to, or extended to, the complainant in these proceedings.

11. The Crown conceded that if the document was privileged, that privilege had been waived by CW giving it to the police officer. It had been served as part of the Crown’s duty of disclosure. At issue here was the effect of [38] of Practice Guideline 1.

12. In a further submission in reply, the accused, by his Counsel, submitted that the Practice Guideline was not a statute. Whilst principles of public interest immunity may apply to documents produced for the purpose of use by the Royal Commission, any alteration of the rights of an accused would require express words of Parliament by way of statutory regulation rather than a policy document such as the Practice guideline.

Determination

13. But for the fact that CW gave the statement to the OIC as part of the investigation, in my view, [38] as set out above, must be construed to mean that the statement handed over by CW in a private session, cannot be used in evidence against her in these criminal proceedings. The policy behind the guideline is clear, namely, that witness statements subject to private session before the Royal Commission were to remain confidential so as to encourage people to come forward. It should not be given the narrow construction advocated by the accused here.

14. Notwithstanding that, the document could have been excluded from evidence by application of s 130 of the Evidence Act 1995, which provides relevantly as follows:

“130 Exclusion of evidence of matters of State

(1) If the public interest in admitting into evidence information or a document that relates to matters of State is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

…

(5) Without limiting the matters that the court may take into account for the purposes of ss (1), it is to take into account the following matters:

(a) the importance of the information or the document in the proceeding;

(b) If the proceeding is a criminal proceeding – whether the parties seeking to adduce the evidence of the information or document is a defendant or the prosecutor;

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

(e) whether the substance of the information or document has already been published;

(f) if the proceeding is a criminal proceeding and the parties seeking to adduce evidence of the information or document is a defendant – whether the direction is to be made subject to the condition that the prosecution be stayed.”

15. I note further that no application was made by the Crown pursuant to s 131A of the Evidence Act 1995 to permit the Crown not to disclose the statement.

16. The real question here is whether, by service of the statement as part of the Crown brief, the confidentiality of the document, or public interest immunity, if so attracted, has been waived.

17. Neither the Crown nor the accused has provided any authority.

18. I have read the statement prepared by CW in 2013 and it traverses the same matters of which she has given evidence in the trial and has been cross‑examined upon. Counsel for the accused seeks to further cross‑examine CW on the basis that it contains inconsistent statements to the evidence she has already given.

19. I am not satisfied here that the document is clothed by public interest immunity. If it were, such immunity could not be waived – see R v Lipton [2011] NSWCCA 247. Here, the immunity provided by [38] of Practice Guideline 1 to the statement was waived by CW when she provided her statement to the police. It was not subject of any claim for public interest immunity by the Crown and was disclosed to the accused pursuant to the Crown’s duty of disclosure.

20. In those circumstances, there is no barrier to the statement being used for the purpose outlined above, namely, to cross-examine CW on any inconsistencies that the statement may contain to the evidence previously given by her unless the provisions of the Royal Commission Act 2006 (Cth) prevented from being so used.

21. The Crown has, after submissions on this question were completed, provided a copy of Pt 4 of that Act. The relevant sections are as follows;

"Section 6OE; Certain statements made and documents produced etc not admissible in evidence

(1). The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the commonwealth, of a state, or of a territory.

(a) A statement or disclosure made by the person at a private session;

(b) The production of a document or other thing by the person at a private session;

(c) A statement or disclosure made by the person to a member or a member of the staff of a Royal Commission for the purposes of a private session (whether or not a private session was, or is to be held for the commission).

(2) Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act."

Also relevant is s 6ON:

"Protection of certain information given to the Child Sexual Abuse Royal Commission

(1). This section applies to information if;

(a) Information was given by or on behalf of a natural person to the Child Sexual Abuse Royal Commission other than for the purposes of a private session, and;

(b) Information contains an account of;

(i) The natural person’s experiences of child sexual abuse in an institutional context, or;

(ii) What happened to other people regarding child sexual abuse in an institutional context; and

c) The information identifies a natural person who gave the information, or on whose behalf the information was given, and

d) The Commission indicated that the information if given, would be treated as confidential, and;

e) The information was treated as confidential by the Commission.

(2) Section 6OE applies in relation to the information as if it were a statement or disclosure made by the natural person at a private session for the Commission."

22. The Crown has submitted that if the preconditions set out in s 6ON are met, then the statement provided by the complainant, CW, is caught by the Act, and therefore she should not be cross-examined on it, or evidence should not be adduced in relation to that statement.

23. Counsel for the accused has submitted that the preconditions set out in s 6ON(1)(c) and (d) have not been made out for the following reasons: First, the Commission has not indicated that the information would have been treated as confidential. The reason for that is that CW did not have an understanding that any such order had been made and the Crown had conceded that no order had been made in relation to the information.

24. Secondly, the section should not be read dysjunctively. Thirdly, that there was no statutory privilege arising as a result of the proper construction of s 6ON subs (1)(c) and (d) as applied here and in those circumstances, no privilege would arise and therefore the Act was not engaged.

25. I accept the accused’s submission in relation to the proper construction of s 6ON and find that the preconditions have not been made out here. The prohibition on the use of the further statement that would otherwise arise through ss 6OE is not made out even if the preconditions set out in s 6ON subs (1)(c) and (d) are made out. There was no order by the Royal Commission that the information must be treated as confidential and no evidence before me to establish that those preconditions have been met. For those reasons, the accused will be allowed to cross-examine further the complainant, CW, on the basis of her statement made to the Royal Commission.

CROWN PROSECUTOR: Your Honour, in the course of your Honour’s judgment I’ve realised I may have inadvertently led your Honour into some error and I just feel obliged to put that on the record. Your Honour, in relation to s 6ON, subs (1)(a) states that this information was given other than for the purposes of a private session. In the Crown’s submission it was given for the purposes of a private session so therefore s 6OE would apply. I just feel obligated to put that on the record and I apologise because I didn’t clarify that with your Honour.

HIS HONOUR: Yes, I didn’t turn my mind to that.

CROWN PROSECUTOR: No, and I should have brought that to the court and to my friend’s attention. Your Honour, so in the Crown’s submission the relevant section is then s 6OE which is much more clear in its terms.

HIS HONOUR: The difficulty I’m having with this is that was a statement provided for the purposes of a private session or is it something that, was determined after the statement was provided. Namely that it would be dealt with in private session.

CROWN PROSECUTOR: Maybe, your Honour, it might be necessary to have a short voir dire for the - Ms W to be asked that question for your Honour to be able to determine the issue. This MFI 7 is headed ‘Statement and Information to the Royal Commission into Child Sex Abuse’ and it clearly follows the format and guideline of Practice Guideline 3.

HIS HONOUR: But my understanding is that did she prepare that on the basis of the guidelines and submitted it to the Commission before that must by way of inference mean before any determination was made as to whether it was in a private session.

CROWN PROSECUTOR: Yes. Those are all the matters I wish to - and I’m not seeking to cavil with your Honour, I just felt that I hadn’t brought that matter at all to your Honour’s attention. Thank you, your Honour.

26. Yes. For more abundant caution, I add the following remarks. After my determination in this matter the Crown has raised with me that s 6ON (1)(a) makes clear that the section applies to information if the information was given by and on behalf of natural person to the Child Sexual Abuse Royal Commission other than for the purposes of a private session.

27. The Crown, at the heel of the hunt has submitted that if the information was given for the purposes of a private session then the relevant section is s 6OE, the engagement of which would mean that the evidence was not admissible. On my understanding that the statement was prepared by CW from information she had garnered from the Royal Commission website and submitted to the Royal Commission prior to any determination being made that the evidence be given in private session, it was not therefore made for the purposes of a private session but rather by way of submission to the Royal Commission and therefore s 6ON (1)(a) is not engaged.

28. For those reasons I will allow the accused to further cross-examine CW on the basis of the statement MFI 7.

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Decision last updated: 16 March 2023