R v O’Toole (No. 4) [2020] NSWDC 434

R v O’Toole (No. 4) [2020] NSWDC 434

The Crown did not give reasonable notice of its intention to adduce coincidence evidence, and the only explanation was oversight. Although the evidence was important and would not unduly lengthen the hearing, the late notice caused forensic disadvantage because four complainants had already given evidence and been cross-examined, and the defence may have cross-examined differently on the alleged modus operandi and similarities. Considering s 192 of the Evidence Act 1995, the prejudice to the accused and the Crown's duty of fairness favoured refusing to dispense with the notice requirement under s 100(2).

Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Criminal / Procedural Ruling During Trial on Crown Application for Leave to Rely on a Late Coincidence Evidence Notice and Adduce Evidence as Coincidence Evidence
Outcome
Crown application refused.
Legal Topics
['coincidence Evidence' 'reasonable Notice' 'crown Duty of Fairness' 'sexual Offence Allegations']
['criminal Law' 'evidence'] ['coincidence Evidence' 'reasonable Notice' 'crown Duty of Fairness' 'sexual Offence Allegations']

Case Brief

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Procedural Posture

Criminal / Procedural Ruling During Trial on Crown Application for Leave to Rely on a Late Coincidence Evidence Notice and Adduce Evidence as Coincidence Evidence

Legal Issues

  1. 1 ['Whether the Crown should be given leave to rely on a Coincidence Evidence Notice served after four complainants had given evidence and been cross-examined.' 'Whether the Crown failed to give reasonable notice under s 98(1)(a) of the Evidence Act 1995 and whether the court should dispense with that requirement under s 100(2).' 'Whether late service of the notice caused forensic prejudice to the accused.']

Ratio Decidendi

The Crown did not give reasonable notice of its intention to adduce coincidence evidence, and the only explanation was oversight. Although the evidence was important and would not unduly lengthen the hearing, the late notice caused forensic disadvantage because four complainants had already given evidence and been cross-examined, and the defence may have cross-examined differently on the alleged modus operandi and similarities. Considering s 192 of the Evidence Act 1995, the prejudice to the accused and the Crown's duty of fairness favoured refusing to dispense with the notice requirement under s 100(2).

Court Disposition

Crown application refused.

Orders

  • ['I refuse leave to the Crown to rely on its Coincidence Evidence Notice served on 24 June 2020.']