R v O’Toole (No. 4) [2020] NSWDC 434

District Court New South Wales

Medium Neutral Citation: R v O'Toole (No. 4) [2020] NSWDC 434 Hearing dates: 1 July 2020 Decision date: 03 July 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Crown application to adduce evidence as coincidence evidence refused. For orders see [22]. Catchwords: Coincidence evidence; reasonable notice; Crown's duty of fairness. Legislation Cited: Evidence Act 1995 Cases Cited: Nguyen v R [2020] HCA 23 R v AC [2018] NSWCCA 130 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 leave to abridge time for service of COINCIDENCE EVIDENCE notice and to adduce evidence as coincidence evidence 1. This trial commenced on 16 June 2020. The accused was arraigned and pleaded not guilty to 15 charges and 22 alternative counts on the Indictment involving six separate complainants. The offences are alleged to have taken place between 1966 and 1971. 2. On 24 June 2020, after four of the complainants had given evidence and been cross-examined, the Crown served a Coincidence Evidence Notice on the accused. The notice contained the following: "3. Further, the Crown also seeks to rely upon the evidence of EH (additional witness who is not a complainant named on the indictment) as coincidence evidence in respect of each of the complainants on the indictment. 4. The two or more events which are the subject of the proposed evidence are: (a) the alleged indecent and sexual acts performed by the accused Ian O'Toole upon the complainant CW; (b) the alleged indecent and sexual acts performed by the accused Ian O'Toole upon the complainant KW; (c) the alleged indecent and sexual acts performed by the accused Ian O'Toole upon the complainant LW; (d) the alleged indecent and sexual acts performed by the accused Ian O'Toole upon the complainant CF; (e) the alleged indecent and sexual acts performed by the accused Ian O'Toole upon the complainant WW; and (f) the alleged indecent and sexual acts performed by the accused Ian O'Toole upon the complainant AA. 5. The Crown contend that the evidence of the indecent and sexual assaults alleged by each complainant and the further witness EH are admissible as part of the evidence available in proof of each complainant's allegations because of the high degree of similarity between the allegations and the improbability of those witnesses giving such similar accounts unless the events occurred as alleged. 6. The relevant similarities for the complainants CW, KW, LW, CF and EH are as follows: (i) each child was a student at the BPS in 1966 and 1967 when Ian O'Toole was the sole teacher at the school and the school had a small number of students namely between ten and fifteen students. (ii) The alleged acts all occurred within the period from 23 May 1966 to 31 December 1967. (iii) In relation to each of the complainants some of the alleged acts occurred at the school. 7. The relevant similarities for the complainants CW, LW, CF and EH are as follows: (i) Each child was a student at the BPS in 1966 and 1967 when Ian O'Toole was the sole teacher at the school and the school had a small number of students namely between ten and fifteen students. (ii) The alleged acts all occurred within the period from 23 May 1966 to 31 December 1967. (iii) In relation to each of the complainants some of the alleged acts occurred at the school. (iv) Some of the alleged acts occurred in the school toilets either when the complainant was selected to assist Ian O'Toole to clean the toilets or when they went to use the toilet. (v) Each child was aged between five and ten years old. 8. The relevant similarities for the complainants CW, KW, WW and AA are as follows: (i) Ian O'Toole was a boarder in the home of the complainants when the alleged offences occurred. (ii) Ian O'Toole was a teacher at the time he was boarding in the complainants' home. (iii) The complainants trusted Ian O'Toole in his position as a boarder and teacher. (iv) The complainants received treats and special treatment from Ian O'Toole. 9. The evidence is to be tendered to prove that Ian O'Toole did a particular act, namely indecently and sexually assaulted the six complainants in the manner alleged on each occasion on the indictment." 1. The notice attached an annexure which set out the statements of the six complainants as the evidence said to constitute coincidence evidence.