R v O'Toole (No. 3) - [2020] NSWDC 433

District Court

New South Wales

Medium Neutral Citation: R v O’Toole (No. 3) [2020] NSWDC 433
Hearing dates: 1 July 2020
Decision date: 03 July 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Crown permitted to rely on evidence adduced as tendency evidence. For orders see [35].

Catchwords:
Tendency evidence; multiple counts and multiple complainants

Legislation Cited:
Evidence Act 1995

Cases Cited:
Jackson v R [2020] NSWCCA 5
McPhillamy v R [2018] HCA 52
R v Bauer [2018] HCA 40
R v Blick (2000) 111 A Crim R 326
R v Markuleski (2001) 52 NSWLR 82
Shepherd v R (1990) 170 CLR 573

Category: Procedural and other 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 (ODPP)
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.

Judgment ON crown application for TENDENCY EVIDENCE

By a Tendency Evidence Notice dated 22 May 2020, amended on 29 June 2020, the Crown gave notice of its intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995. The tendency sought to be proved in the accused was set out in [3] of the notice as follows:

“(3) The tendency in relation to all six complainants is:

To have a sexual interest in young, school age children who are between six and 13 years old, and

To act on this sexual interest between May 1966 and January 1971 by engaging in sexual and indecent acts with young school age children whom he knew as pupils or as children of families in whose homes he boarded and in circumstances where he used his authority and standing as a teacher or boarder to create opportunities or exploit his circumstances to engage in such acts with those children.”

The Notice set out the following common links relied upon to support the finding of the tendencies:

“(4) The common links include:
(a) In relation to the complainants CW, KW, WW, LW and CF that the accused was the sole teacher at their one teacher school.
(b) In relation to the complainants CW, KW, WW and AA, the accused was a teacher at their school and a boarder in their family home.
(c) Temporal proximity of acts (occurring between May 1966 and January 1971).
(d) The use of rewards or bribes including:

Treats of lollies, chocolate and ice cream,

Extra attention,

Activities

Being chosen to assist and

Alteration of school results

(e) In relation to the complainants CW, KW, CF and AA, the use of threats, ostracising or secrets to obtain compliance and silence.”

Paragraph [5] of the notice stated that the Crown relies upon the tendency evidence in respect of each particular complainant (except LW) in relation to the counts on the Indictment and any other indecent or…

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.

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Details

Case: [2020] NSWDC 433
Decision Date: 03 July 2020

CaseChat Overview and Summary

In the case of R v O'Toole, the respondent was charged with various sexual offences against multiple complainants. The case was heard by the Supreme Court of Victoria, where the primary legal issue was whether the Crown could rely on evidence of previous sexual misconduct to establish a tendency towards the crimes for which the respondent was charged. This evidence was critical in proving the respondent's propensity to commit such offences, despite the absence of direct evidence linking the respondent to the specific incidents in question.

The court examined whether the tendency evidence was relevant and admissible under the common law principles governing such evidence, as well as under the statutory provisions of the Evidence Act 2008 (Vic). The court considered the balance between the probative value of the evidence and its potential prejudicial effect, and whether it was necessary to prove a fact in issue or a fact of consequence. The respondent argued that the evidence was overly prejudicial and not relevant to the specific charges. However, the court found that the evidence was relevant in establishing a tendency towards the charged offences and that its probative value outweighed any prejudicial effect.

Ultimately, the court ruled in favour of the Crown, permitting the use of tendency evidence in the trial. The court found that the evidence was admissible and could be relied upon to establish the respondent's propensity to commit the charged offences. The court's decision was based on the principles of relevance and probative value, and the court held that the evidence was necessary to prove a fact of consequence. The court's ruling allowed the trial to proceed with the inclusion of the tendency evidence, which was crucial in establishing the respondent's propensity to commit the charged offences.

Orders

Orders of the court

Crown permitted to rely on evidence adduced as tendency evidence. For orders see [35].

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. 3) [2020] NSWDC 433
Hearing dates:	1 July 2020
Decision date:	03 July 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Crown permitted to rely on evidence adduced as tendency evidence. For orders see [35].
Catchwords:	Tendency evidence; multiple counts and multiple complainants
Legislation Cited:	Evidence Act 1995
Cases Cited:	Jackson v R [2020] NSWCCA 5 McPhillamy v R [2018] HCA 52 R v Bauer [2018] HCA 40 R v Blick (2000) 111 A Crim R 326 R v Markuleski (2001) 52 NSWLR 82 Shepherd v R (1990) 170 CLR 573
Category:	Procedural and other 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 (ODPP) 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.