Citation: R v O'Toole (No. 2) [2020] NSWDC 432
Court: District Court of New South Wales
Date: 22 June 2020
Judge: Mahony SC DCJ
Background
During a criminal trial, the complainant (referred to throughout as CW) had made a statement to the Royal Commission into Institutional Responses to Child Sexual Abuse in 2013. That statement had been prepared before CW gave evidence in a private session before the Royal Commission, and it was submitted to the Commission by way of submission rather than as part of the private session process. CW herself provided the statement to the police as part of their investigation, and it was subsequently served on the accused by the Crown as part of its disclosure obligations.
Counsel for the accused sought to use the statement to cross-examine CW on alleged inconsistencies between its contents and her evidence at trial. The Crown opposed further cross-examination, raising potential confidentiality protections arising from the Royal Commission's Practice Guidelines and the Royal Commission Act 2006 (Cth).
The court was required to determine whether any of those protections prevented the accused from using the statement for cross-examination purposes.
Legal Issues
- Whether the statement was clothed by public interest immunity or a form of privilege under the Royal Commission's Practice Guideline 1
- Whether any such privilege or confidentiality had been waived when CW provided the statement to police and it was disclosed to the accused
- Whether the preconditions in section 6ON of the Royal Commission Act 2006 (Cth) were satisfied so as to render the statement inadmissible
- Whether section 6OE of that Act applied on the basis that the statement was given for the purposes of a private session
Decision
Issue 1: Public interest immunity and Practice Guideline 1
Practice Guideline 1 issued by the Royal Commission stated that statements given in private sessions could not be used in evidence against a person in criminal proceedings. The court accepted that this protection, properly construed, extended to the complainant in these proceedings and was not confined solely to accused persons (at [13]). However, the court found that the statement was not clothed by public interest immunity (at [19]). Whatever confidentiality or immunity the Practice Guideline conferred was waived when CW voluntarily provided the statement to police, and the Crown did not seek to claim public interest immunity over it (at [19]).
Issue 2: The Royal Commission Act 2006 (Cth), section 6ON
The court examined whether the prohibitions in section 6ON of the Royal Commission Act 2006 (Cth) were engaged. The accused submitted that the preconditions in subsections (1)(c) and (d), including the requirement that the Royal Commission had indicated the information was to be treated as confidential, had not been satisfied. The court accepted that submission. There was no order by the Royal Commission that the information must be treated as confidential, and no evidence before the court to establish those preconditions had been met (at [25]).
Issue 3: Section 6OE and the private session question
After the principal submissions concluded, the Crown raised a further argument: if the statement was given for the purposes of a private session, section 6OE of the Act would render it inadmissible. The court rejected this argument on the facts. The statement had been prepared by CW from information she gathered from the Royal Commission's website and was submitted to the Commission before any determination was made to hear evidence in private session. It was therefore a submission to the Commission rather than material given for the purposes of a private session, and section 6ON(1)(a) was not engaged (at [27]).
The court allowed the accused to further cross-examine CW using the statement (at [25], [28]).
Orders Made
- Application granted
Key Takeaways
- The District Court held that confidentiality protections established under a Royal Commission's Practice Guidelines can be waived where the complainant voluntarily provides the relevant statement to police and it is subsequently disclosed to the accused as part of the Crown's disclosure obligations (at [19]).
- Public interest immunity, once properly established, cannot be waived, but the court here was not satisfied the statement attracted that immunity in the first place (at [19]), applying R v Lipton [2011] NSWCCA 247.
- Under section 6ON of the Royal Commission Act 2006 (Cth), the prohibition on using information given to the Royal Commission is not engaged unless the specified preconditions, including a Commission indication that the information was to be treated as confidential, are actually made out (at [25]).
- A statement prepared by a witness from publicly available Royal Commission materials and submitted before any private session was ordered is not "given for the purposes of a private session" within the meaning of the Act, and section 6OE is not thereby enlivened (at [27]).
- Section 130 of the Evidence Act 1995 (NSW) was identified as an available mechanism by which such a statement could, in appropriate circumstances, have been excluded, though no application was made under that provision in this case (at [14]-[15]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Lipton [2011] NSWCCA 247