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

1. 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:

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

2. 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.”

2. 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.”

3. 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 sexual acts committed upon that particular complainant not identified as counts on the Indictment (“uncharged acts”). The Tendency Notice then set out the tendency in relation to each of the five complainants where multiple counts were alleged on the Indictment, namely, CW, KW, CF, WW and AA.

4. The Crown application identified the evidence relied on being the statements of each of the complainants attached to the Tendency Evidence Notice. However, the application was dealt with at the conclusion of the evidence, and therefore relied on the evidence as adduced by the six complainants, as a result of counsel for the accused reserving his position at the commencement of the trial to “waylay” issues going to “admissibility, uses, and weight” until the end of the evidence, it being a judge alone trial. For that reason, the Crown, in its written outline of submissions, identified in some detail the evidence at trial of the tendency. There was no dispute by the accused on this application about that summary, nor did the accused, by his counsel, dispute that the tendency evidence sought to be adduced had significant probative value. Thus, for the purpose of this judgment, it is unnecessary for me to set out that evidence in respect of each of the complainants, the summary of which is contained in [32] to [91] of the Crown submissions (MFI#22).

5. In addition to that evidence, the Crown identified the evidence from other students at BPS, including that of EH and NS, which it submitted supports the evidence of the complainants CW, LW, CF, WW and KW regarding the appearance and interests of the accused at the time, his conduct as a teacher, and the layout of the school and grounds. Further evidence involved Department of Education records relating to the periods of time the accused taught at both BPS and PHPS, together with evidence of the recorded conversations between CW and the accused, and the accused’s ERISP interview.

6. The Crown submitted that the proposed tendency evidence was not of a kind radically different in content to other evidence led in the case and that the tribunal of fact would be given directions about the use to be made of the tendency evidence. The Crown submitted that the probative value of the tendency evidence of each complainant substantially outweighs any prejudicial effect it may have on the accused and therefore s 101 of the Evidence Act 1995 was satisfied.

7. In her oral submissions, the Crown rehearsed the written submissions as to the evidence having significant probative value. The Crown emphasised the common links referred to above, the close proximity in time of the events, the “strike-rate”, having regard to the small number of pupils at BPS, the evidence concerning use of rewards and bribes, together with evidence concerning threats.

8. The Crown relied on R v Bauer [2018] HCA 40 to submit that the evidence relating to the accused having a sexual interest in children was of high probative value. The evidence established that the alleged offences were not separated in time, and were not different in nature or gravity. There was therefore no need for any special feature to be identified to make the acts cross-admissible against each complainant. Further, the significant probative value of the evidence has to be determined in the context of the facts in issue at the trial. Here, the accused’s case was that the acts of sexual misconduct did not occur in relation to each complainant.

9. The Crown submitted that if the court did not have regard to the evidence as tendency evidence, the court may query whether the accused would have engaged in such acts, given that in respect of some or all of them, there were other children or adults nearby, some occurred in the homes of the complainants or at the river where others were swimming, or in the school building or grounds. Even those acts alleged by KW and WW to occur at school after school hours were included, because whilst the evidence established no one was around, it was a public place. Further, acts alleged to have taken place in a boys’ toilet at the school with a young female would also attract such attention.

10. The Crown rehearsed its written submissions that the evidence was also relevant as to whether each complainant correctly identified the accused as the person who committed the sexual and indecent acts upon them, given the passage of time since the alleged conduct.

11. In her oral submissions, the Crown submitted that in respect of s 101, it was relevant that the accused had not applied for separate trials, that there was strong consistency and similarity in the tendency evidence, and that the court would give itself a tendency evidence direction.

12. The Crown also rehearsed her submission that, at the time of the alleged offending, it was necessary, in respect of female complainants, to establish that there was an assault by the accused, as there was no offence of committing an act of indecency at that time. Thus, where the conduct (i.e. uncharged act) was not an offence but was indecent or sexual in nature, it was relevant and admissible as tendency evidence.

13. Finally, the Crown submitted that the issue of contamination was not relevant on this application, consistent with the High Court’s decision in R v Bauer, supra.

The accused’s submissions

14. The accused, by his counsel, submitted that with the development of jurisprudence in the area of tendency evidence, there was a diminishing significance with respect to evidence formerly referred to as “similar fact evidence”, pursuant to s 97, and a greater role given to the evaluation required under s 101. Here, counsel conceded that the tendency evidence sought to be adduced by the Crown has significant probative value.

15. It was submitted that the focus therefore was on s 101 and s 137 of the Evidence Act 1995, and that a determination pursuant to s 137 was not discretionary.

16. Counsel for the accused characterised tendency evidence intra‑complainant (i.e. where multiple counts were alleged by a complainant) as “vertical reasoning” and tendency evidence inter complainant as “horizontal pleading”.

17. In his written submissions, counsel submitted that the probative value of the evidence does not substantially outweigh any prejudicial effect it may have on the accused, and therefore s 101 of the Evidence Act is engaged to exclude the tendency evidence, “because its use would fall within s 137 of the Evidence Act in the sense discussed by Sheller JA in R v Blick (2000) 111 A Crim R 326 at [20].” It was submitted that s 101 has work to do and operates in conjunction with s 137 which is, “a busy section of the Evidence Act because it interlocks with discretionary considerations concerning the exclusion of otherwise relevant evidence.”

18. The accused submitted that the content of unfair prejudice must be identified and must be prejudice which is not susceptible of cure by direction. It was submitted that in a judge alone trial the defence must identify “an illogicality or unreasonableness in the approach pleaded by the prosecution which is unworkable or incompatible with existing directions binding upon the court and the statutory regime governing the admissibility and use of the evidence in question. That is, an inconsistency must be identified (that cannot be cured) when viewed in conjunction with other legal principles which are important in a criminal trial.”

19. Further, it was submitted that a direction in accordance with R v Markuleski (2001) 52 NSWLR 82, which would be given in this trial, was incompatible with “the Crown’s pleading”, i.e. the tendency evidence, and therefore it is subject to mandatory exclusion pursuant to s 137 of the Evidence Act.

20. In his oral submissions, counsel for the accused rehearsed his submissions relating to the difficulty concerning vertical tendency evidence uses intra complainants, having regard to the direction the court would give itself pursuant to R v Markuleski, supra. It was submitted that the use sought by the Crown was antithetical to fundamental principles of fairness in a criminal trial. Further, the real danger of unfair prejudice was illogicality in the fact finding process, eg, the way in which the matters are approached which would not be consistent with a R v Markuleski, supra, direction.

21. In respect of inter‑complainant admissibility, it was submitted the court would need to be very mindful of the question of burden of proof, and any uncharged acts were not to be established beyond reasonable doubt, or as intermediate facts, relying on Shepherd v R (1990) 170 CLR 573.

Crown submissions in reply

22. The Crown submitted in reply that there could be significant overlap between tendency evidence and coincidence evidence. Referring to McPhillamy v R [2018] HCA 52, the Crown submitted that temporal activity can be a relevant consideration in determining significant probative value of tendency evidence.

23. Secondly, the Crown submitted that its position with respect to the standard of proof was a “conservative position”, consistent with the High Court’s decision in R v Bauer, supra, which involved multiple counts alleged by a single complainant. The Crown acknowledged there was a continuing debate relating to the standard of proof where there were multiple complainants, but relied on the decision of the Court of Criminal Appeal in Jackson v R [2020] NSWCCA 5, where the court rejected the accused’s argument and determined the issue consistent with R v Bauer.

24. Thirdly, the Crown submitted that a Markuleski direction was not relevant to the determination of admissibility of tendency evidence. The Markuleski direction was a direction which may or may not come into play in the court determining the final issue, however, that reasoning was not a bar to the admission of tendency evidence at this time.

Determination

25. The relevant legislative provisions are as follows:

“97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1)(a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

26. The tendency of the accused identified by the Crown in its Tendency Notice and set out above is to have a sexual interest in young, school age children who are aged 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 in the context set out further in the notice. The evidence of each of the complainants has been adduced and cross-examined upon, and there is no issue that that evidence as summarised in the Crown’s written submissions has significant probative value and thus the gateway in s 97(1) of the Evidence Act 1995 is passed.

27. The issue to be determined here is whether the probative value of that evidence substantially outweighs any prejudicial effect it may have on the accused, pursuant to s 101(2) of the Evidence Act. It is axiomatic that tendency evidence is prejudicial to an accused person.

28. A direction pursuant to R vMarkuleski, supra, requires the tribunal of fact giving separate consideration to the individual counts, which means it is entitled to bring verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome. The direction continues that if the tribunal of fact was to find an accused not guilty on any count, particularly if that was because it had doubts about the reliability of the complainant’s evidence, it would have to consider how that conclusion affected its consideration of the remaining counts. The direction therefore is concerned with the effect of the assessment of the credibility of the complainant if the tribunal of fact finds itself unable to accept a complainant’s evidence in respect of any count. It is usually required where the case is one of “word against word”, but should be given in any case where a complainant’s credibility looms large in the trial so as to provide an accused with the chance of acquittal on all counts.

29. I reject the accused’s submission that a Markuleski direction is incompatible with the Crown’s reliance on tendency evidence here, and that it would lead to the mandatory exclusion of such evidence pursuant to s 137 of the Evidence Act1995. The prospect of such a direction is irrelevant to the question of admissibility of tendency evidence pursuant to s 101 of the Evidence Act.

30. I also reject the accused’s submission that in respect of vertical tendency evidence uses intra complainant is antithetical to fundamental principles of fairness in a criminal trial. I reject the submission that it could lead to illogicality in fact finding.

31. I also reject the submission made on behalf of the accused that the tendency evidence should be excluded pursuant to s 137 of the Evidence Act, as a mandatory exclusion. In R v Bauer, supra, at [73] the High Court said:

“Despite textual differences between the expressions ‘prejudicial effect’ in s 101, ‘unfairly prejudicial’ in s 135 and ‘unfair prejudice’ in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.”

32. Here, other than the illogicality of approach outlined above, the accused did not identify any unfair way such evidence might be used by the tribunal of fact. Reliance on a supposed conflict between a Markuleski direction being given, and a generalised submission that the use of the evidence would be antithetical to fundamental principles that apply in the conduct of a criminal trial, have not persuaded me that the probative value of the tendency evidence does not substantially outweigh any prejudicial effect it may have on the accused. I am also mindful that the usual direction regarding tendency evidence will be given in due course.

33. This is not a case where the finder of fact is likely to be overwhelmed by the nature and number of the allegations against the accused, or fail to pay sufficient regard to real questions of credibility and reliability that arise on the evidence so as to render the tendency evidence so unfairly prejudicial so that the evaluative exercise pursuant to s 101(2) of the Evidence Act is weighed in favour of excluding the tendency evidence. Nor is there any risk that the evidence will be misused, or used in any improper way, by the tribunal of fact.

34. I am satisfied that the evidence identified by the Crown in relation to the common links as set out in [4] of the Tendency Notice, has a probative value which substantially outweighs any prejudicial effect it may have on the accused, and therefore I am satisfied, pursuant to s 101(2), that the tendency evidence identified by the Crown in its Tendency Evidence Notice may be adduced.

Orders

35. I therefore order as follows:

1. The evidence in the trial identified and summarised by the Crown in [32] to [91] of its submissions is adduced as tendency evidence to prove the tendency set out in [3] of the Crown’s Tendency Notice, namely:

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

(ii) To act on the 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 a boarder to create opportunities or exploit his circumstances to engage in such acts with those children.”

2. I further order that such tendency evidence may be used in respect of each of the complainants identified in [6] to [10] of the Crown’s Tendency Evidence Notice for the purpose outlined in those paragraphs.

3. I order that the evidence is cross-admissible in respect of all the complainants.

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Decision last updated: 11 August 2020