Citation: R v O'Toole (No. 4) [2020] NSWDC 434
Court: District Court of NSW
Date: 3 July 2020
Judge(s): Mahony SC DCJ
Background
The accused stood trial on 15 counts and 22 alternative counts of sexual misconduct, allegedly committed while he was a teacher at two primary schools between 1966 and 1971. Six complainants gave evidence of conduct said to have involved children aged between six and thirteen. The accused's defence was that the misconduct did not occur in the manner described by any of the complainants.
The Crown had served a Tendency Evidence Notice before trial, and the accused had not sought separate trials. The trial commenced on 16 June 2020. After four of the six complainants had already given evidence and been cross-examined, the Crown served a Coincidence Evidence Notice on 24 June 2020, relying on the statements of all six complainants.
The Crown's explanation for the late service was simply that serving a Coincidence Evidence Notice had been overlooked in preparation for the trial. The accused opposed the Crown's application for leave to rely on the notice, arguing the late service caused forensic prejudice and that reasonable notice had not been given as required by section 98(1)(a) of the Evidence Act 1995.
Legal Issues
- Whether the Crown gave "reasonable notice" of its intention to adduce coincidence evidence, as required by section 98(1)(a) of the Evidence Act 1995.
- Whether leave should be granted under section 100(2) of the Evidence Act 1995 to dispense with that reasonable notice requirement.
- Whether the matters prescribed in section 192 of the Evidence Act 1995 favoured granting or refusing that leave.
- Whether the accused suffered forensic disadvantage from the late service of the notice during trial.
Decision
Issue 1: Whether the notice was served within a reasonable time
The court found that the Crown did not give reasonable notice of its intention to adduce coincidence evidence, as required by section 98(1)(a) of the Evidence Act 1995. The only explanation offered was that service had been an "oversight" during trial preparation (at [15]). The Crown did not identify any other justification for the delay.
Issue 2: Whether the accused was on notice from the brief of evidence
The court rejected the Crown's submission that the accused should have anticipated, from the contents of the brief of evidence, that the Crown might later elect to use that material as coincidence evidence (at [18]). Expecting an accused to foresee such a forensic decision in a serious criminal trial, where the Crown was already relying on a properly served Tendency Evidence Notice, was inconsistent with the Crown's duty of fairness in presenting its case, by reference to Nguyen v R [2020] HCA 23 at – (at [18]).
Issue 3: Forensic disadvantage
The court accepted that the accused suffered forensic disadvantage from the timing of the notice. Cross-examination of the four complainants who had already given evidence may well have proceeded differently had the Coincidence Evidence Notice been served earlier, because counsel would have been required to scrutinise more carefully the modus operandi alleged and differentiate the manner in which the individual offences were said to have been committed (at [17]). This was particularly relevant given the accused's reliance on questions of reliability of memory.
Issue 4: The section 192 factors and distinction from R v AC
The court acknowledged the importance of the evidence and considered all matters in section 192(2) of the Evidence Act 1995 (at [17], [19]–[20]). It distinguished R v AC [2018] NSWCCA 130, where the tendency notice, though served in breach of a court order, was served before trial and where the Court of Criminal Appeal found no sufficient prejudice to the accused (at [19]–[20]). Here, by contrast, the Coincidence Evidence Notice arrived during the trial, after four witnesses had been cross-examined, and the accused had suffered actual prejudice. The absence of coincidence evidence would not substantially weaken the Crown case, which was not the position in R v AC (at [20]). Taken together, the section 192 factors favoured refusing the exercise of the court's discretion under section 100(2) (at [20]).
Orders Made
- Leave to the Crown to rely on its Coincidence Evidence Notice served on 24 June 2020 was refused.
Key Takeaways
- A coincidence evidence notice served mid-trial, after several complainants have already given evidence and been cross-examined, can give rise to genuine forensic disadvantage to the accused, even where the underlying evidence was contained in the original brief of evidence (at [17]).
- An accused person is not required to anticipate that the Crown will make a mid-trial forensic decision to use existing evidence as coincidence evidence, particularly where a Tendency Evidence Notice has already been properly served. Placing that burden on the accused is inconsistent with the Crown's duty of fairness (at [18]).
- Under section 192(2) of the Evidence Act 1995, the importance of evidence is not alone sufficient to displace the prejudice arising from unreasonable late service of a coincidence evidence notice (at [19]–[20]).
- R v AC [2018] NSWCCA 130 was distinguished on the basis that the relevant notice in that case was served before trial, and the Court of Criminal Appeal found no real prejudice to the accused. Where the notice is served during trial and actual forensic disadvantage is established, the analysis differs materially (at [19]–[20]).
- A Crown explanation of "oversight" in preparing for trial does not, without more, provide a sufficient basis for the court to exercise its discretion under section 100(2) to dispense with the reasonable notice requirement in section 98(1)(a) of the Evidence Act 1995 (at [15], [20]–[21]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Nguyen v R [2020] HCA 23
- R v AC [2018] NSWCCA 130