R v O'Toole (No. 4)
[2020] NSWDC 434
•03 July 2020
District Court
New South Wales
Medium Neutral Citation: R v O’Toole (No. 4) [2020] NSWDC 434 Hearing dates: 1 July 2020 Decision date: 03 July 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Crown application to adduce evidence as coincidence evidence refused. For orders see [22].
Catchwords: Coincidence evidence; reasonable notice; Crown’s duty of fairness.
Legislation Cited: Evidence Act 1995
Cases Cited: Nguyen v R [2020] HCA 23
R v AC [2018] NSWCCA 130
Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown)
Ian Wayne O’Toole (Accused)Representation: Counsel:
Solicitors:
Ms J Smith (Crown)
Dr R Webb (Accused)
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 leave to abridge time for service of COINCIDENCE EVIDENCE notice and to adduce evidence as coincidence evidence
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This trial commenced on 16 June 2020. The accused was arraigned and pleaded not guilty to 15 charges and 22 alternative counts on the Indictment involving six separate complainants. The offences are alleged to have taken place between 1966 and 1971.
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On 24 June 2020, after four of the complainants had given evidence and been cross-examined, the Crown served a Coincidence Evidence Notice on the accused. The notice contained the following:
“3. Further, the Crown also seeks to rely upon the evidence of EH (additional witness who is not a complainant named on the indictment) as coincidence evidence in respect of each of the complainants on the indictment.
4. The two or more events which are the subject of the proposed evidence are:
(a) the alleged indecent and sexual acts performed by the accused Ian O’Toole upon the complainant CW;
(b) the alleged indecent and sexual acts performed by the accused Ian O’Toole upon the complainant KW;
(c) the alleged indecent and sexual acts performed by the accused Ian O’Toole upon the complainant LW;
(d) the alleged indecent and sexual acts performed by the accused Ian O’Toole upon the complainant CF;
(e) the alleged indecent and sexual acts performed by the accused Ian O’Toole upon the complainant WW; and
(f) the alleged indecent and sexual acts performed by the accused Ian O’Toole upon the complainant AA.
5. The Crown contend that the evidence of the indecent and sexual assaults alleged by each complainant and the further witness EH are admissible as part of the evidence available in proof of each complainant’s allegations because of the high degree of similarity between the allegations and the improbability of those witnesses giving such similar accounts unless the events occurred as alleged.
6. The relevant similarities for the complainants CW, KW, LW, CF and EH are as follows:
(i) each child was a student at the BPS in 1966 and 1967 when Ian O’Toole was the sole teacher at the school and the school had a small number of students namely between ten and fifteen students.
(ii) The alleged acts all occurred within the period from 23 May 1966 to 31 December 1967.
(iii) In relation to each of the complainants some of the alleged acts occurred at the school.
7. The relevant similarities for the complainants CW, LW, CF and EH are as follows:
(i) Each child was a student at the BPS in 1966 and 1967 when Ian O’Toole was the sole teacher at the school and the school had a small number of students namely between ten and fifteen students.
(ii) The alleged acts all occurred within the period from 23 May 1966 to 31 December 1967.
(iii) In relation to each of the complainants some of the alleged acts occurred at the school.
(iv) Some of the alleged acts occurred in the school toilets either when the complainant was selected to assist Ian O’Toole to clean the toilets or when they went to use the toilet.
(v) Each child was aged between five and ten years old.
8. The relevant similarities for the complainants CW, KW, WW and AA are as follows:
(i) Ian O’Toole was a boarder in the home of the complainants when the alleged offences occurred.
(ii) Ian O’Toole was a teacher at the time he was boarding in the complainants’ home.
(iii) The complainants trusted Ian O’Toole in his position as a boarder and teacher.
(iv) The complainants received treats and special treatment from Ian O’Toole.
9. The evidence is to be tendered to prove that Ian O’Toole did a particular act, namely indecently and sexually assaulted the six complainants in the manner alleged on each occasion on the indictment.”
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The notice attached an annexure which set out the statements of the six complainants as the evidence said to constitute coincidence evidence.
The Crown submissions
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In her written outline of submissions, the Crown submitted that all of the evidence identified in the notice have been served as part of the original brief of evidence. Further, all of the evidence relating to the six complainants had been the subject of Tendency Evidence Notices. It was submitted that the accused was on notice since service of the brief that the evidence existed and was relied on by the Crown as part of its case.
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The Crown submitted that there was no application made to sever any of the counts. It was submitted that there was substantial commonality between the tendency evidence relied on, with the exception that the Coincidence Evidence Notice included the evidence of EH.
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It was submitted that the relevant evidence was that set out in the Crown’s tendency submissions at [43] to [91]. The Crown submitted that there was no identifiable prejudice to the accused by the late service of the Coincidence Notice. Given the commonality between the common links in the Tendency Notice and the similarities in the Coincidence Notice, there would be no difference in the way the witnesses were, or would be, cross-examined.
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The Crown relied on R v AC [2018] NSWCCA 130, for the principles to be applied in construing s 99 and 100 of the Evidence Act 1995. This required the court to consider the provisions of s 192 of that Act, and it was submitted that the evidence being adduced as coincidence evidence would not make the trial longer, as it had already been led as part of the Crown case. It was further submitted that it would be unfair to the Crown to not enable the Crown to rely on coincidence reasoning.
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In her oral submissions, the Crown rehearsed her submissions to the effect that there was no forensic disadvantage to the accused in the late service of the Coincidence Evidence Notice. It was submitted that the application made by the accused at the commencement of the trial to deal with the questions of admissibility and weight of evidence at the end of the trial meant that there was no forensic disadvantage to the accused.
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The Crown submitted that it was not relying on new or additional evidence or to use the evidence in a radically different way. The service of a Coincidence Evidence Notice had been simply overlooked prior to the trial. The evidence was important and had always been readily apparent from the Crown brief.
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The Crown submitted that the evidence had significant probative value relevant to facts in issue and the court would be satisfied that the probative value of the coincidence evidence substantially outweighs any prejudicial effect to the accused, so that s 101 of the Evidence Act 1995 was satisfied. Any prejudice could be met by a coincidence evidence direction in this judge alone trial.
The accused’s submissions
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In his written submissions, counsel for the accused submitted that s 98 of the Evidence Act 1995 engages a different test relevant to the question of significant probative value. Section 98 required a consideration of two or more comparative events and requires a high degree of similarity as referrable to pure probability reasoning. It was further submitted that the “probative force of the evidence is greatly diminished where any one complainant is aware that another or other complainants are making complaint at about the same time relating to similar circumstances.” The accused submitted that the late notice gave rise to forensic disadvantage in that four of the complainants had already given evidence and been cross‑examined when the notice was provided.
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In his oral submissions, counsel for the accused rehearsed his submissions that the notice in this case was not reasonable. There were significantly different issues to be determined pursuant to s 98 from s 97. Given that the s 98 gateway involved questions of similarities between acts, and a high degree of similarity in the acts alleged, this would have had a significant impact on the way in which each of the witnesses were cross-examined. Here, Counsel had raised with each of the witnesses that sexual misconduct “did not occur as described by the witness”. However, had the evidence been adduced as coincidence evidence, it would have been incumbent upon counsel to differentiate the modus operandi and how the actual alleged offences were carried out. This was the case where the accused was relying on questions of reliability of memory and would be seeking directions pursuant to s 165(b) of the Evidence Act 1995. In those circumstances, the Crown application should be refused.
Crown submissions in reply
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In submissions in reply the Crown submitted because of the Crown’s “tardiness”, the Coincidence Evidence Notice had been drafted with care to minimise prejudice. Paragraphs [6] to [8] thereof concerned matters that were substantially similar to the matters referred to in the Tendency Evidence Notice and it was clear, from the notice itself, that the Crown was not relying on the alleged acts of sexual misconduct. The Coincidence Evidence Notice was therefore more limited than it might otherwise have been.
Determination
The Legislative framework
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The following legislation applies:
“98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally 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 coincidence evidence adduced by another party.
99 Requirement for notices
Notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.
100 Court may dispense with notice requirements
(2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party’s failure to give notice under section 98.
(3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice.
(5) The direction:
(a) is subject to such conditions (if any) as the court thinks fit, and
(b) may be given either at or before the hearing.
(6) Without limiting the court’s power to impose conditions under this section, those conditions may include one or more of the following:
(a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party,
(c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence.”
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.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.”
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The threshold question here is whether the Crown should be given leave to rely on its Coincidence Evidence Notice to establish that it is improbable that the events occurred coincidentally. The Crown failed to give reasonable notice of its intention to adduce the evidence pursuant to s 98(1)(a), and no explanation has been provided to the court by the Crown for the late notice other than it was simply an “oversight” by the Crown in its preparation for trial.
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As outlined above, the accused is on trial in respect of 15 counts and 22 alternative counts of what may be regarded as sexual misconduct when he was a teacher in two primary schools in the period 1966 to 1971. Each of the counts alleges serious criminal offending involving sexual misconduct toward children aged between six and 13 years of age. The accused’s case is that the sexual misconduct did not occur in the manner described by each of the six complainants.
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In assessing whether leave should be given to the Crown to make its application, I have regard to the matters set out in s 192(2) of the Evidence Act 1995 above. I am not persuaded that the matters sought to be adduced would unduly lengthen the hearing, pursuant to s 192(2)(a). However, I accept that there is a forensic disadvantage to the accused in not knowing the use to which the evidence adduced in the Crown case was to be used as coincidence evidence. It is not to the point that questions of admissibility of the Tendency Notice, properly served by the Crown, was waylaid until the end of the evidence. The accused was on notice of that evidence and properly allowed the evidence to be adduced in the way it was at trial. I accept the submission made by counsel for the accused that cross-examination in respect of each of the four complainants who had given evidence at the time the Coincidence Evidence Notice was served, may well have been different, in that the modus operandi alleged to have been utilised by the accused may have been subject to greater scrutiny and therefore cross-examination.
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Further, I reject the Crown submission that the evidence was contained in the Crown brief and the accused was therefore on notice of it. To suggest that an accused person should anticipate, in a trial involving serious criminal allegations, that the Crown may make a forensic decision during the trial relating to the use of the evidence to be adduced as coincidence evidence, where the Crown was relying on a Tendency Evidence Notice properly served, bespeaks of prejudice to the accused and is inimical to the Crown’s duty of fairness in the presentation of its case – see Nguyen v R [2020] HCA 23 at [33] – [37].
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I acknowledge that the evidence is important (pursuant to s 192(2)(c)), having regard to the nature of the proceedings (s 192(2)(d)). The decision of R v AC, supra, relied on by the Crown, may be distinguished for the following reasons. In that case, the Crown served its Tendency Evidence Notice before trial, but in breach of a court order for service. The primary judge held that the accused likely anticipated that the Crown would be relying on the evidence of each complainant as tendency evidence in any event. An application by the accused for separate trials depended on whether the Crown was permitted to lead the evidence as tendency evidence. In that case, no sufficient explanation was given for the Crown’s delay in service of its Tendency Notice other than it was an “oversight”. The primary judge held in those circumstances it was not in the interests of justice to allow the Crown to rely on it. The Court of Criminal Appeal held to refuse the tendency evidence would substantially weaken the Crown case where it was accepted that there would be no prejudice to the accused. Finally, the Court of Criminal Appeal held that the primary judge had failed to have regard to the matters proscribed in s 192(2) of the Evidence Act 1995.
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Here, the Coincidence Notice was served during the trial at a time when four of the six complainants had given evidence and been cross-examined. The Tendency Evidence Notice had been served by the Crown in time and reasonable notice given so that the accused had the opportunity to prepare his defence with respect to the tendency evidence. There was no application for separate trials, but the accused did consent to a judge alone trial. Further, the Crown has been permitted to adduce the evidence the subject of its Tendency Evidence Notice and it could not be said, and it was not submitted, that absence of coincidence evidence would substantially weaken the Crown case. Importantly here, I accept that there is prejudice to the accused, and having considered the matters proscribed in s 192, they favour a refusal to exercise the court’s discretion pursuant to s 100(2) of the Evidence Act, to dispense with the requirement for reasonable notice pursuant to s 98(1)(a).
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I intend to refuse leave to the Crown to rely on its Coincidence Evidence Notice, on the basis that the Crown did not give reasonable notice of its intention to do so as required by s 98(1)(a) of the Evidence Act 1995.
Order
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I make the following order:
I refuse leave to the Crown to rely on its Coincidence Evidence Notice served on 24 June 2020.
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Decision last updated: 11 August 2020
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