R v O’Toole (No. 3) [2020] NSWDC 433

District Court New South Wales

Medium Neutral Citation: R v O'Toole (No. 3) [2020] NSWDC 433 Hearing dates: 1 July 2020 Decision date: 03 July 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Crown permitted to rely on evidence adduced as tendency evidence. For orders see [35]. Catchwords: Tendency evidence; multiple counts and multiple complainants Legislation Cited: Evidence Act 1995 Cases Cited: Jackson v R [2020] NSWCCA 5 McPhillamy v R [2018] HCA 52 R v Bauer [2018] HCA 40 R v Blick (2000) 111 A Crim R 326 R v Markuleski (2001) 52 NSWLR 82 Shepherd v R (1990) 170 CLR 573 Category: Procedural and other 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 (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 TENDENCY EVIDENCE 1. By a Tendency Evidence Notice dated 22 May 2020, amended on 29 June 2020, the Crown gave notice of its intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995. The tendency sought to be proved in the accused was set out in [3] of the notice as follows: "(3) The tendency in relation to all six complainants is: 1. To have a sexual interest in young, school age children who are between six and 13 years old, and 2. To act on this sexual interest between May 1966 and January 1971 by engaging in sexual and indecent acts with young school age children whom he knew as pupils or as children of families in whose homes he boarded and in circumstances where he used his authority and standing as a teacher or boarder to create opportunities or exploit his circumstances to engage in such acts with those children." 1. The Notice set out the following common links relied upon to support the finding of the tendencies: "(4) The common links include: (a) In relation to the complainants CW, KW, WW, LW and CF that the accused was the sole teacher at their one teacher school. (b) In relation to the complainants CW, KW, WW and AA, the accused was a teacher at their school and a boarder in their family home. (c) Temporal proximity of acts (occurring between May 1966 and January 1971). (d) The use of rewards or bribes including: * Treats of lollies, chocolate and ice cream, * Extra attention, * Activities * Being chosen to assist and * Alteration of school results (e) In relation to the complainants CW, KW, CF and AA, the use of threats, ostracising or secrets to obtain compliance and silence." 1. Paragraph [5] of the notice stated that the Crown relies upon the tendency evidence in respect of each particular complainant (except LW) in relation to the counts on the Indictment and any other indecent or sexual acts committed upon that particular complainant not identified as counts on the Indictment ("uncharged acts"). The Tendency Notice then set out the tendency in relation to each of the five complainants where multiple counts were alleged on the Indictment, namely, CW, KW, CF, WW and AA. 2. The Crown application identified the evidence relied on being the statements of each of the complainants attached to the Tendency Evidence Notice. However, the application was dealt with at the conclusion of the evidence, and therefore relied on the evidence as adduced by the six complainants, as a result of counsel for the accused reserving his position at the commencement of the trial to "waylay" issues going to "admissibility, uses, and weight" until the end of the evidence, it being a judge alone trial. For that reason, the Crown, in its written outline of submissions, identified in some detail the evidence at trial of the tendency. There was no dispute by the accused on this application about that summary, nor did the accused, by his counsel, dispute that the tendency evidence sought to be adduced had significant probative value. Thus, for the purpose of this judgment, it is unnecessary for me to set out that evidence in respect of each of the complainants, the summary of which is contained in [32] to [91] of the Crown submissions (MFI#22). 3. In addition to that evidence, the Crown identified the evidence from other students at BPS, including that of EH and NS, which it submitted supports the evidence of the complainants CW, LW, CF, WW and KW regarding the appearance and interests of the accused at the time, his conduct as a teacher, and the layout of the school and grounds. Further evidence involved Department of Education records relating to the periods of time the accused taught at both BPS and PHPS, together with evidence of the recorded conversations between CW and the accused, and the accused's ERISP interview. 4. The Crown submitted that the proposed tendency evidence was not of a kind radically different in content to other evidence led in the case and that the tribunal of fact would be given directions about the use to be made of the tendency evidence. The Crown submitted that the probative value of the tendency evidence of each complainant substantially outweighs any prejudicial effect it may have on the accused and therefore s 101 of the Evidence Act 1995 was satisfied. 5. In her oral submissions, the Crown rehearsed the written submissions as to the evidence having significant probative value. The Crown emphasised the common links referred to above, the close proximity in time of the events, the "strike-rate", having regard to the small number of pupils at BPS, the evidence concerning use of rewards and bribes, together with evidence concerning threats. 6. The Crown relied on R v Bauer [2018] HCA 40 to submit that the evidence relating to the accused having a sexual interest in children was of high probative value. The evidence established that the alleged offences were not separated in time, and were not different in nature or gravity. There was therefore no need for any special feature to be identified to make the acts cross-admissible against each complainant. Further, the significant probative value of the evidence has to be determined in the context of the facts in issue at the trial. Here, the accused's case was that the acts of sexual misconduct did not occur in relation to each complainant. 7. The Crown submitted that if the court did not have regard to the evidence as tendency evidence, the court may query whether the accused would have engaged in such acts, given that in respect of some or all of them, there were other children or adults nearby, some occurred in the homes of the complainants or at the river where others were swimming, or in the school building or grounds. Even those acts alleged by KW and WW to occur at school after school hours were included, because whilst the evidence established no one was around, it was a public place. Further, acts alleged to have taken place in a boys' toilet at the school with a young female would also attract such attention. 8. The Crown rehearsed its written submissions that the evidence was also relevant as to whether each complainant correctly identified the accused as the person who committed the sexual and indecent acts upon them, given the passage of time since the alleged conduct. 9. In her oral submissions, the Crown submitted that in respect of s 101, it was relevant that the accused had not applied for separate trials, that there was strong consistency and similarity in the tendency evidence, and that the court would give itself a tendency evidence direction. 10. The Crown also rehearsed her submission that, at the time of the alleged offending, it was necessary, in respect of female complainants, to establish that there was an assault by the accused, as there was no offence of committing an act of indecency at that time. Thus, where the conduct (i.e. uncharged act) was not an offence but was indecent or sexual in nature, it was relevant and admissible as tendency evidence. 11. Finally, the Crown submitted that the issue of contamination was not relevant on this application, consistent with the High Court's decision in R v Bauer, supra.