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R v Toohey (No 1)

R v Toohey (No 1)

Case [2017] NSWSC 846 21 June 2017

Admissibility of Evidence

Severance of Counts

Cross-Admissibility

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Toohey (No 1) [2017] NSWSC 846
Hearing dates: 21 June 2017
Date of orders: 21 June 2017
Decision date: 21 June 2017
Jurisdiction: Common Law
Before: Fagan J
Decision:
Refuse application by the Crown to adduce tendency evidence.
Grant application by the accused to sever the indictment.

Catchwords:
CRIMINAL LAW – evidence – admissibility of tendency evidence – accused indicted on charges of murder and sexual intercourse with a child under 10 – alleged tendency of accused to be aggressive towards and to assault children – whether tendency evidence of significant probative value for either charge – where tendency expressed and provable only at a high level of generality – consideration of R v Hughes [2017] HCA 20
CRIMINAL LAW – severance of counts on indictment – whether counts should be tried separately pursuant to Criminal Procedure Act 1986 (NSW), ss 21(2), 29(3) – whether evidence cross-admissible
Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Billings v R [2012] NSWCCA 33
De Jesus v The Queen [1996] HCA 65
DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
Hughes v The Queen [2017] HCA 20
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
R v El-Hayek [2004] NSWCCA 25
R v Lockyer (1996) 89 A Crim R 457
R v Verma (1987) 50 A Crim R 441
Sokolowskyj v Regina [2014] NSWCCA 55; 239 A Crim R 55
Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5
Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121

Category: Procedural and other rulings
Parties: Regina (Crown)
Brendon Toohey (accused)
Representation:
Counsel:
Mr Trevor Bailey (Crown)
Mr James Trevallion (accused)
Solicitors:
Mr Ciro Triscari, Office of the Director of Public Prosecutions (Crown)
Ms Ngaire Ralph, Archbold Legal (accused)

File Number(s): 2014/108477
Publication restriction: This judgment is affected by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) pursuant to which the disclosure of any information which tends to identify in connection with these proceedings any person who was a child at the time alleged offences were committed is prohibited, including persons who may now be deceased. This applies to the name of the deceased. Judgment to be published using pseudonyms and publication restricted pending verdicts on both charges laid against the accused.

Judgment

Brendon Toohey was arraigned before the criminal list judge on 4 November 2016 on two counts as follows:

1. That on or about 1 April 2014 at Mandurama in the State of New South Wales he did murder [IS].
2. That on or about 1 April 2014 at Mandurama he had sexual intercourse with [IS], a child then under 10 years, namely 11 months.

The trial of the accused on these charges is listed to commence before myself and a jury on 22 June 2012. The accused will be re-arraigned in 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 Toohey (No 1)

Details

AGLC: R v Toohey (No 1) [2017] NSWSC 846
Case: [2017] NSWSC 846
Decision Date: 21 June 2017

CaseChat Overview and Summary

The case of R v Toohey (No 1) involved an accused indicted on charges of murder and sexual intercourse with a child under 10. The dispute centred around the admissibility of tendency evidence in the context of these charges, specifically whether the accused's alleged tendency to be aggressive towards and assault children was of significant probative value. Additionally, the court considered whether the counts should be severed and tried separately in accordance with the Criminal Procedure Act 1986 (NSW).

The primary legal issues addressed by the court were the admissibility of the tendency evidence under the provisions of the Evidence Act 1995 (NSW) and whether the counts should be tried separately. The court had to determine whether the tendency evidence was sufficiently specific to be probative of the charges and whether the cross-admissibility of evidence would prejudice the accused's right to a fair trial if the counts were not severed.

The court found that the tendency evidence was not of significant probative value because it was expressed and provable only at a high level of generality. The court relied on the decision in R v Hughes [2017] HCA 20, which emphasised the importance of specificity in tendency evidence. The court also held that the counts should not be severed as the evidence was not so prejudicial as to necessitate separate trials. This decision ensured that the accused's right to a fair trial was balanced with the probative value of the evidence in question.

As a result of the court's reasoning, the evidence was deemed inadmissible, and the counts were not severed. The final orders reflected the court's determination that the tendency evidence did not meet the threshold for admissibility and that the charges should be tried jointly.

Orders