R v O’Toole (No. 2) [2020] NSWDC 432

District Court New South Wales

Medium Neutral Citation: R v O'Toole (No. 2) [2020] NSWDC 432 Hearing dates: 19 June 2020 Decision date: 22 June 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application granted Catchwords: Application by accused to cross-examine complainant on statement made by complainant to the Royal Commission into Institutional Responses to Child Sex Abuse Legislation Cited: Evidence Act 1995 Cases Cited: R v Lipton [2011] NSWCCA 247 Category: Procedural 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 (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 application to cross-examine on statement made to the royal commission into institutional responses to child sexual abuse

Introduction 1. During cross-examination of the complainant, CW, counsel for the accused informed the court that he wished to cross-examine CW in respect of a statement she had made to the Royal Commission into the Institutional Responses to Child Sexual Abuse ("the Royal Commission"). The statement, which was prepared in 2013, was marked for identification as MFI 7. 2. The court was informed that the statement had formed part of the Crown brief served on the accused in accordance with the Crown's duty of disclosure. 3. The Crown informed the court that the statement had been prepared by CW after she had contacted the Royal Commission in accordance with Practice Guideline 3 issued by the Royal Commission (MFI 10). The Crown further informed the court that the statement was prepared before CW gave evidence in private session to the Royal Commission, and the Crown was not aware of any order made by the Royal Commission in respect of the statement. The Crown further advised that the Royal Commission had not provided the statement to the officer in charge; the statement had been provided by CW. 4. The Crown also provided Practice Guideline 1 issued by the Royal Commission which became MFI 9. It included the following: "38 Statements or disclosures made or documents handed over by you in a private session cannot be used in evidence against you in civil or criminal proceedings. This protection is also available to any support persons the Commissioner agrees can attend a private session with you and who make a statement or provide documents in a private session." 1. Practice Guideline 1 also included the following: "40 The information you provide will be kept confidential unless (a) you agree to it being made public through a later hearing, or (b) The Royal Commission provides it to a law enforcement body …"