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

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.
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.
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.
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.”

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

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…

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 O'Toole (No. 2)

Details

AGLC: R v O'Toole (No. 2) [2020] NSWDC 432
Case: [2020] NSWDC 432
Decision Date: 22 June 2020

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v O'Toole (No. 2) involved an application by the accused to cross-examine the complainant on a statement made by the complainant to the Royal Commission into Institutional Responses to Child Sex Abuse. The accused sought to use this statement to challenge the complainant's credibility and the reliability of her testimony. The central issue before the court was whether the accused should be permitted to cross-examine the complainant on this statement, particularly in light of the potential implications for the complainant's privacy and the broader context of the Royal Commission's proceedings.

The court was tasked with balancing the accused's right to a fair trial, which includes the right to challenge the credibility of witnesses, against the complainant's right to privacy and the need to protect her from unnecessary distress. The court considered the principles of fairness and the public interest in ensuring that justice is served without causing undue harm to vulnerable witnesses. It also examined the relevance and probative value of the statement in question, and whether its exclusion would unduly prejudice the accused's case.

The Supreme Court of New South Wales ultimately determined that the accused should be granted permission to cross-examine the complainant on the statement made to the Royal Commission. The court found that the probative value of the cross-examination outweighed any potential harm to the complainant. The court also noted that appropriate measures could be taken to ensure that the complainant's privacy was protected during the cross-examination. The court emphasised the importance of striking a balance between the rights of the accused and the need to protect the complainant, and concluded that the application should be granted.

Orders

Orders of the court

Application granted

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 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.