Citation: R v O'Toole (No. 3) [2020] NSWDC 433
Court: District Court of NSW
Date: 3 July 2020
Judge(s): Mahony SC DCJ
Background
The accused faced multiple counts of sexual and indecent offending against six complainants, alleged to have occurred between May 1966 and January 1971. The complainants were young school-age children, aged between six and thirteen, whom the accused knew either as pupils or as children of families with whom he boarded. The trial proceeded before a judge alone.
The Crown filed a Tendency Evidence Notice seeking to adduce evidence from all six complainants to prove that the accused had a sexual interest in young children and acted on that interest during the relevant period. The application was heard at the conclusion of the evidence, with the accused having reserved his admissibility objections until that point.
The Crown relied on a number of common links across the complainants' accounts, including the accused's use of his authority as a teacher or boarder to create opportunities for offending, the use of rewards or bribes, and the presence of threats. The defence conceded the evidence had significant probative value but argued it should nonetheless be excluded.
Legal Issues
- Whether the tendency evidence satisfied the gateway requirement of significant probative value under section 97(1) of the Evidence Act 1995.
- Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused under section 101(2) of the Evidence Act, such that it should be admitted.
- Whether a direction in accordance with R v Markuleski (2001) 52 NSWLR 82 was incompatible with the Crown's reliance on tendency evidence, requiring mandatory exclusion under section 137 of the Evidence Act.
- Whether the use of tendency evidence in an intra-complainant ("vertical") manner was antithetical to fundamental principles of criminal trial fairness.
- Whether the tendency evidence was cross-admissible across all complainants.
Decision
Issue 1: Significant probative value (section 97)
The court found that the evidence of each complainant, as adduced and cross-examined upon at trial, had significant probative value. The defence conceded this point, and accordingly the gateway threshold under section 97(1) of the Evidence Act was satisfied without contest (at [26]).
Issue 2: Section 101(2) balancing exercise
The court held that the probative value of the tendency evidence substantially outweighed any prejudicial effect it may have on the accused (at [34]). The court noted that tendency evidence is inherently prejudicial to an accused, but found the accused had not identified any unfair way in which the evidence might be used by the tribunal of fact beyond a generalised submission about illogicality of approach (at [32]). The court further found that this was not a case where the tribunal of fact was likely to be overwhelmed by the volume of allegations or to fail to properly assess credibility and reliability (at [33]).
Issue 3: Markuleski direction and section 137
The court rejected the argument that a Markuleski direction, which requires the tribunal of fact to consider each count separately and to assess how any adverse credibility finding on one count affects remaining counts, was incompatible with the admission of tendency evidence (at [29]). His Honour held that the prospect of such a direction was irrelevant to the question of admissibility under section 101, and did not engage any mandatory exclusion under section 137 (at [29]).
Issue 4: Intra-complainant ("vertical") tendency evidence
The court rejected the submission that using tendency evidence in a vertical manner, that is, across multiple counts alleged by a single complainant, was antithetical to fundamental principles of fairness in a criminal trial or that it would lead to illogicality in fact-finding (at [30]).
Orders Made
- The evidence identified and summarised by the Crown in its submissions was admitted as tendency evidence to prove that the accused had a sexual interest in young school-age children aged six to thirteen and acted on that interest between May 1966 and January 1971.
- The tendency evidence was permitted to be used in respect of each of the complainants identified in the Crown's Tendency Notice for the purposes outlined in that notice.
- The evidence was ordered to be cross-admissible in respect of all complainants.
Key Takeaways
- A Markuleski direction, which requires separate consideration of individual counts and assessment of how a credibility finding on one count affects others, is not incompatible with the admission of tendency evidence and does not trigger mandatory exclusion under section 137 of the Evidence Act 1995 (at [29]).
- Under section 101(2) of the Evidence Act, it is not sufficient for an accused to assert a generalised conflict between a tendency evidence direction and criminal trial fairness principles. The accused must identify a specific, incurable unfairness in the way the evidence might be used by the tribunal of fact (at [32]).
- The District Court confirmed that using tendency evidence in an intra-complainant ("vertical") manner across multiple counts alleged by a single complainant does not, of itself, offend fundamental principles of fairness or produce illogical fact-finding (at [30]).
- In a judge-alone trial involving multiple complainants and multiple counts, the court found the risk of the tribunal being overwhelmed by the volume of allegations, or losing sight of credibility and reliability issues, can be adequately addressed through appropriate tendency evidence directions (at [33]).
- Where the defence concedes significant probative value under section 97(1), the focus of the admissibility debate shifts entirely to the balancing exercise under section 101(2), and the burden falls on the accused to identify concrete prejudicial effects that outweigh that probative value (at [26]-[27]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- 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