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Supreme Court 21 June 2017

R v Toohey (No 1)

[2017] NSWSC 846

Sexual offencesAssault & violenceHomicide
CRIMINAL LAW EVIDENCE ADMISSIBILITY OF TENDENCY EVIDENCE SEVERANCE OF COUNTS ON INDICTMENT WHETHER EVIDENCE CROSS ADMISSIBLE

Citation: R v Toohey (No 1) [2017] NSWSC 846
Court: Supreme Court of New South Wales
Date: 21 June 2017
Judge(s): Fagan J

Background

The accused was charged on a single indictment with two counts arising from events on or around 1 April 2014 at Mandurama, NSW: the murder of an 11-month-old infant, and sexual intercourse with a child under 10 years. The accused was the partner of the child's mother and had been caring for the infant while the mother underwent surgery at Bathurst Hospital. The child was brought to Blayney Hospital the following morning in an unconscious state and could not be revived.

The accused told police the child had fallen from a trampoline onto the concrete top of an in-ground septic tank. Forensic pathology evidence, however, indicated that the child's head injuries were consistent with several separate applications of blunt force trauma, and were not consistent with a simple trampoline fall. The Crown's medical evidence also identified a number of other recent blunt force injuries to the child's body.

Two pre-trial issues arose for determination. The Crown gave notice of its intention to lead tendency evidence under s 97 of the Evidence Act 1995 (NSW), and the accused applied to have the indictment severed so that the murder and sexual intercourse counts would be tried separately.

  • Whether the Crown's proposed tendency evidence, said to establish that the accused had a tendency to be aggressive towards and to assault children, was admissible under s 97 of the Evidence Act 1995 (NSW) as evidence of significant probative value.
  • Whether the indictment should be severed under ss 21 and 29 of the Criminal Procedure Act 1986 (NSW), so that the murder count and the sexual intercourse count were tried separately.
  • Whether evidence relating to the two counts was cross-admissible, a central consideration in the severance application.

Decision

Tendency evidence. Fagan J ruled that the proposed tendency evidence was not admissible. The tendency as formulated, namely a general propensity to be aggressive towards and to assault children, was expressed at too high a level of generality to be of significant probative value in relation to either the murder or the sexual intercourse charge. Drawing on the High Court's recent analysis in Hughes v The Queen [2017] HCA 20, his Honour noted that tendency evidence must have a rational connection to the particular conduct alleged, not merely demonstrate a broad disposition. Where a tendency can only be proved and stated in general terms, it will not satisfy the significant probative value threshold.

Severance. Fagan J ordered that the indictment be severed. The central question was whether the evidence on each count was cross-admissible on the other. His Honour concluded it was not. The evidence relevant to the sexual intercourse charge (principally a rectal injury to the child) could not rationally be used to prove that the accused caused the head injuries underlying the murder charge, and vice versa. The two alleged acts were of a different nature and there was no feature of the sexual intercourse evidence that lent meaningful support to the murder charge, or the reverse.

Risk of prejudice. Fagan J identified a substantial risk of unfair prejudice if both counts were tried together. A jury might use evidence relating to the sexual intercourse count to impermissibly dispel a reasonable doubt otherwise raised by defence medical evidence on the murder charge, or might treat one category of alleged conduct as corroborating the other when it could not logically do so. A direction to the jury was considered unlikely to remove that risk adequately.

The case of Billings v R [2012] NSWCCA 33 was distinguished, as that case involved circumstances where some evidence was genuinely cross-admissible as circumstantial evidence of the murder. No comparable evidential overlap existed here. Convenience to witnesses and the parties was acknowledged but given little weight in the balance.

Orders Made

  • The proposed tendency evidence summarised in the judgment was ruled inadmissible and may not be led by the Crown.
  • The indictment was amended pursuant to ss 21 and 29 of the Criminal Procedure Act 1986 (NSW) to charge only the count of murder.
  • The trial was to proceed on the murder count only.
  • Whether to prosecute the sexual intercourse charge on a separate indictment in the District Court was left to the Director of Public Prosecutions.

Key Takeaways

  • Tendency evidence framed at a high level of generality, such as a broad propensity to be aggressive towards children, will not satisfy the significant probative value requirement under s 97 of the Evidence Act 1995 (NSW), particularly where the tendency cannot be meaningfully linked to the specific conduct charged.
  • The Supreme Court applied the High Court's reasoning in Hughes v The Queen [2017] HCA 20, confirming that a rational and specific connection between the tendency and the acts alleged is required before the evidence can clear the admissibility threshold.
  • Where the evidence on separate counts in a joint indictment is not cross-admissible, the risk of impermissible reasoning by the jury weighs in favour of severance, even if a direction might otherwise be available.
  • Severance under the Criminal Procedure Act 1986 (NSW) does not foreclose later prosecution of the severed count: the judgment expressly preserved the Director of Public Prosecutions' ability to proceed on the sexual intercourse charge by separate indictment.
  • Practical inconvenience of separate trials was recognised as a factor in the severance analysis but was afforded little weight where the overlap in witnesses between the two counts was minimal.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 97 (tendency evidence)
- Criminal Procedure Act 1986 (NSW), ss 21, 29, 130
- Crimes Act 1900 (NSW), s 66A(1)

Cases
- Hughes v The Queen [2017] HCA 20
- Billings v R [2012] NSWCCA 33
- DSJ v R; NS v R (2012) 84 NSWLR 758; [2012] NSWCCA 9
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5
- De Jesus v The Queen [1996] HCA 65
- R v El-Hayek [2004] NSWCCA 25
- R v Lockyer (1996) 89 A Crim R 457
- Sokolowskyj v Regina [2014] NSWCCA 55; 239 A Crim R 55
- Velkoski v The Queen (2014) 45 VR 680; [2014] VSCA 121
- R v Verma (1987) 50 A Crim R 441