R v Ian Wayne O’Toole [2020] NSWDC 431

District Court New South Wales

Medium Neutral Citation: R v Ian Wayne O'Toole [2020] NSWDC 431 Hearing dates: 16 June 2020 – 9 July 2020 Decision date: 17 July 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Multiple verdicts of guilty. For orders see [428] Catchwords: Historical child sex offending; tendency evidence Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Government Information Access Act 2009 Cases Cited: Browne v Dunn (1893) 6 R 67 (HL) Jackson v R [2020] NSWCCA 5 R v Bauer [2018] HCA 40 R v Markuleski (2001) 52 NSWLR 82 S v The Queen (1989) 168 CLR 266 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) IO (Offender) Representation: Counsel: Ms J Smith (Crown) Mr R Webb (Accused)

Solicitors: R Endacott (Crown) 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, until further order.

Judgment on verdict 1. Ian Wayne O'Toole is charged that: 1. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900. 2. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault did commit an act of indecency pursuant to s 76 of the Crimes Act 1900. 3. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900. 4. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did carnally know CW, a girl then under the age of 10 years, namely, of the age of 6 or 7 years, pursuant to s 67 of the Crimes Act 1900. 5. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 6. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did maintain an unlawful sexual relationship with KW then a child under the age of 16, namely 8, 9 or 10 years of age, in which the accused engaged in the following two or more unlawful sexual acts: 1. Ian Wayne OToole caused KW's hand to masturbate his penis. 2. Ian Wayne OToole put his penis between the legs of KW and moved it back and forth. 3. Ian Wayne OToole had KW perform fellatio on him. 4. Ian Wayne OToole digitally penetrated the vagina of KW. 5. Ian Wayne OToole rubbed the outside of the vagina of KW, pursuant to s 66EA(1) of the Crimes Act 1900. 7. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 8. And in the Alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 9. And in the Alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 10. And in the Alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 11. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 12. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 13. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales.did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 14. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 15. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 16. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 17. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 18. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 19. And in the alternative to Count 6, between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, KW, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 20. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, LW, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900. 21. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CF, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900. 22. Between 23 May 1966 and 31 December 1967, in BUP in the State of New South Wales, did carnally know CF a girl then under the age of 10 years, namely, of the age of 7 and 8 years, pursuant to s 67 of the Crimes Act 1900. 23. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault a female, namely, CF, a female then under the age of 16, and at the time of that assault did commit an act of indecency, pursuant to s 76 of the Crimes Act 1900. 24. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault WW a male person and did commit an act of indecency on him, pursuant to s 81 of the Crimes Act 1900. 25. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault WW a male person and did commit an act of indecency on him, pursuant to s 81 of the Crimes Act 1900. 26. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did assault WW a male person and did commit an act of indecency on him, pursuant to s 81 of the Crimes Act 1900. 27. Between 23 May 1966 and 31 December 1967, at BUP in the State of New South Wales, did procure the commission of an act of indecency with WW also a male person, pursuant to s 81A of the Crimes Act 1900. 28. Between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did maintain an unlawful sexual relationship with AA then a child under the age of 16, namely 10, 11 or 12 years, in which the accused engaged in the following two or more unlawful sexual acts: 1. Ian Wayne O'Toole touched AA's buttocks. 2. Ian Wayne O'Toole kissed AA on the mouth. 3. Ian Wayne OToole kissed and sucked AA's breasts. 4. Ian Wayne OToole massaged AA's breasts. 5. Ian Wayne O'Toole masturbated himself near AA. 6. Ian Wayne O'Toole touched the anus of AA. 7. Ian Wayne O'Toole had penile/vaginal intercourse with AA. 8. Ian Wayne O'Toole put his penis inside the mouth of AA. 9. Ian Wayne O'Toole touched the outside of AA's vagina with his penis. 10. Ian Wayne O'Toole digitally penetrated the vagina of AA, pursuant to s 66EA(1) of the Crimes Act 1900. 29. In the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 30. In the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 31. And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 32. And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 33. And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 34. And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 35. And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely, 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900. 36. And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did carnally know AA, a girl then of or above the age of 10 years and under the age of 16 years, namely, 10, 11 or 12 years, pursuant to s 71 of the Crimes Act 1900. 37. And in the alternative to Count 28, between 1 January 1968 and 29 October 1970, at PH in the State of New South Wales, did assault a female, namely, AA, a female then under the age of 16, and at the time of that assault committed an act of indecency, pursuant to s 76 of the Crimes Act 1900. 1. By consent, the trial proceeded to be heard by Judge alone commencing on 16 June 2020. Upon arraignment, the accused pleaded not guilty to each of the counts on the Indictment. This judgment records my verdicts and my reasons for reaching those verdicts. 2. The elements of each of the offences pursuant to s 76 of the Crimes Act 1900 (Counts 1-3, 5, 7-21, 23, 29-34, and 37) are as follows: 1. Assault by accused upon complainant, 2. The complainant being a female then under the age of 16, 3. Accompanied by an act of indecency before, after or at the time of the assault. 1. The elements of each of the offences pursuant to s 67 of the Crimes Act 1900 (Counts 4 and 22) are as follows: 1. Sexual intercourse with a girl, 2. Under the age of 10. "Carnal knowledge" shall, in every case under this Act, be deemed complete upon proof of penetration only. The common law meaning of sexual intercourse was penetration of the male organ into the female genitalia and the degree of penetration required is "very small indeed" and does not require proof that the hymen was ruptured or that emission could or did take place. 1. The elements of each of the offences pursuant to s 66EA(1) of the Crimes Act 1900 (Counts 6 and 28) are as follows: 1. That the accused being an adult, 2. Maintained an unlawful sexual relationship with the complainant 3. Who was a child. An adult is a person of or above the age of 18 and a child is a person under the age of 16. "A relationship" is a way of describing the nature of the connection between two or more people. Here, it is whether there was a relationship between the accused and the complainant, in each case. In determining whether the relationship was an unlawful sexual relationship, the Court must also be satisfied beyond reasonable doubt that the accused committed two or more unlawful sexual acts with or toward the complainant during the period identified in the Indictment. S 66EA(4) and (5) should be noted. "Maintained" has its ordinary everyday meaning. That is, carried on, kept up or continued. 1. The elements of each of the offences pursuant to s 81 of the Crimes Act 1900 (Counts 24, 25 and 26) are as follows: 1. An act of indecency upon a male person by the accused; 2. Irrespective of whether such act was consented to by such male person. 1. The elements of the offence pursuant to s 81A of the Crimes Act 1900 (Count 27) are as follows: 1. The male accused committed or participated in an act of indecency 2. With another male person. 1. The elements of each of the offences pursuant to s 71 of the Crimes Act 1900 (Counts 35 and 36) are as follows: 1. Sexual intercourse with a girl; 2. Under the age of sixteen years but above the age of ten years. 1. The Crown bears the onus of proving each charge beyond reasonable doubt. That involved proving each of the elements listed above, beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of each of the charges beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference. 2. Whether the Crown has established the elements of each of the alternative counts in Counts 7-19, and Counts 29-37, arises only in the event that I am not satisfied that the Crown has established each of the elements of the charges in Counts 6 and 28 respectively.