Citation: R v Brian Spillane [2016] NSWDC 332
Court: District Court of NSW
Date: 20 September 2016
Judge(s): Berman SC DCJ
Background
The accused faced two forthcoming trials in the District Court arising from allegations of sexual offending against students at St Stanislaus College in Bathurst. The charges spanned conduct alleged to have occurred between 1971 and 1990. The matter was, at the time, described as the oldest unfinished matter in the District Court.
The accused had faced earlier trials relating to the same institution, and those proceedings had resulted in convictions. Significant Court of Criminal Appeal decisions concerning tendency evidence had also been handed down in cases where the accused was the appellant, making his prior convictions well known within the NSW judiciary.
The accused applied for a trial by judge alone under s 132 of the Criminal Procedure Act, primarily relying on pre-trial internet publicity about his earlier convictions. The Crown did not consent to the application.
Legal Issues
- Whether it was in the interests of justice under s 132 of the Criminal Procedure Act to order a trial by judge alone in circumstances of significant online pre-trial publicity.
- Whether the trial would involve factual issues requiring the application of objective community standards of indecency under s 132(5), such that a judge-alone order should be refused.
- Whether the credibility issues central to the trial weighed for or against a jury.
- Whether the near-certainty that any judicial officer would be aware of the accused's prior convictions was a relevant consideration in the balance of interests.
Decision
The unusual problem of judicial awareness
Berman SC DCJ identified a distinctive feature of this application: granting a judge-alone trial would almost guarantee that the decision-maker already knew of the accused's prior convictions, given those convictions were well known to judges in the District Court and had been the subject of notable Court of Criminal Appeal decisions. By contrast, a jury trial created only a risk that jurors might become aware of that material. The judge accepted that judicial officers are trained to put prejudicial information aside, but noted, drawing on comments by Martin CJ in Arthurs v State of Western Australia, that even experienced judges are not immune to unconscious prejudice and that such bias may not always be exposed in written reasons.
His Honour also considered community acceptance of the verdict. A verdict reached by a decision-maker known to have been aware of prior convictions would be less readily accepted by the community as just than a verdict reached by jurors insulated from that knowledge.
Community standards and credibility
Two of the charges concerned conduct that was not unambiguously indecent: one allegation involved squeezing a complainant's buttocks while tucking in his shirt, and another involved kissing a complainant while the accused was in his underwear. His Honour considered that a jury drawn from the community was better placed than a single judge to determine whether such conduct met the objective standard of indecency required by the charges. Separately, the credibility of complainants would be centrally contested, and the judgment cited Latham J in R v Dean and Johnson J in R v McNeil (both endorsing Lord Devlin's view) that juries are better than judges at assessing witness credibility.
Internet publicity and jury directions
His Honour acknowledged the volume of prejudicial material available online, including reports of the accused's convictions. However, he was satisfied that a carefully crafted direction to jurors not to conduct independent research would make it highly unlikely any juror would access that material. He further reasoned that if a juror did disobey such a direction, it was likely to come to the court's attention through other jurors. While research confirmed that some jurors may disobey directions regardless of how forceful they are, that risk alone was held insufficient to justify a judge-alone trial. Accepting that proposition would mean that any adverse online information about an accused would automatically warrant a judge-alone trial, which is not the law.
Weighing all considerations, the court was satisfied that a jury trial better served the interests of justice.
Orders Made
- The accused's application for a trial by judge alone was dismissed.
Key Takeaways
- In dismissing the application, the District Court reasoned that a judge-alone order is not automatically warranted by the existence of adverse internet publicity about an accused's prior convictions; the risk of juror exposure must be weighed against other factors.
- A notable consideration was that ordering a judge-alone trial in this case would have made judicial knowledge of the prior convictions near-inevitable, whereas a jury trial created only a risk of equivalent exposure. This asymmetry counted against granting the application.
- Under s 132(5) of the Criminal Procedure Act, where charges turn on whether conduct meets an objective community standard of indecency, a jury is better positioned than a single judge to make that assessment, particularly where the conduct alleged is not obviously indecent on its face.
- Credibility contests involving multiple complainants are a factor that courts have consistently treated as favouring jury trial, following the view that juries are generally more apt than judges at assessing witness truthfulness.
- Accepting that any accessible prejudicial online material about an accused automatically justified a judge-alone trial would set too low a threshold; the law requires a balancing of all relevant considerations in each case.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 132
- Jury Act 1977 (NSW)
Cases
- AK v Western Australia [2008] HCA 8; 232 CLR 438
- Arthurs v State of Western Australia [2007] WASC 102
- BJS v Regina [2011] NSWCCA 239
- BJS v R [2013] NSWCCA 123
- R v Dean [2013] NSWSC 661
- R v McNeil [2015] NSWSC 357