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-admissibleLegislation 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 121Category: Procedural and other rulings Parties: Regina (Crown)
Brendon Toohey (accused)Representation: Counsel:
Solicitors:
Mr Trevor Bailey (Crown)
Mr James Trevallion (accused)
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…
Continue reading R v Toohey (No 1)
Sign in free to access the full text
- AGLC
- R v Toohey (No 1) [2017] NSWSC 846
- Case
- [2017] NSWSC 846
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
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.