R v O’Toole (No. 3) [2020] NSWDC 433

R v O’Toole (No. 3) [2020] NSWDC 433

The evidence identified by the Crown passed the s 97 gateway because its significant probative value was not in dispute. The prospect of a Markuleski direction did not make the tendency evidence inadmissible and was irrelevant to admissibility under s 101. The accused did not identify an unfair use of the evidence beyond alleged illogicality, and the court was not satisfied there was a risk that the tribunal of fact would misuse the evidence or be overwhelmed by the allegations. The probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused, and s 137 did not require exclusion.

Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Criminal Proceeding / Crown Application for Tendency Evidence in a Judge Alone Trial
Outcome
Crown permitted to rely on evidence adduced as tendency evidence.
Legal Topics
['tendency Evidence' 'multiple Counts and Multiple Complainants' 'cross Admissibility' 'prejudicial Evidence' 'judge Alone Trial']
['criminal Law' 'evidence'] ['tendency Evidence' 'multiple Counts and Multiple Complainants' 'cross Admissibility' 'prejudicial Evidence' 'judge Alone Trial']

Case Brief

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Procedural Posture

Criminal Proceeding / Crown Application for Tendency Evidence in a Judge Alone Trial

Legal Issues

  1. 1 ['Whether evidence identified by the Crown had significant probative value for the purposes of s 97 of the Evidence Act 1995.' 'Whether the probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused under s 101(2) of the Evidence Act 1995.' 'Whether the tendency evidence should be excluded under s 137 of the Evidence Act 1995.' "Whether a direction pursuant to R v Markuleski (2001) 52 NSWLR 82 was incompatible with the Crown's reliance on tendency evidence."]

Ratio Decidendi

The evidence identified by the Crown passed the s 97 gateway because its significant probative value was not in dispute. The prospect of a Markuleski direction did not make the tendency evidence inadmissible and was irrelevant to admissibility under s 101. The accused did not identify an unfair use of the evidence beyond alleged illogicality, and the court was not satisfied there was a risk that the tribunal of fact would misuse the evidence or be overwhelmed by the allegations. The probative value of the tendency evidence substantially outweighed any prejudicial effect on the accused, and s 137 did not require exclusion.

Court Disposition

Crown permitted to rely on evidence adduced as tendency evidence.

Orders

  • ["The evidence in the trial identified and summarised by the Crown in [32] to [91] of its submissions is adduced as tendency evidence to prove the tendency set out in [3] of the Crown's Tendency Notice." "Such tendency evidence may be used in respect of each of the complainants identified in [6] to [10] of the...