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District Court 21 September 2016

R v Brian Spillane (No 2)

[2016] NSWDC 333

Sexual offences
CRIMINAL LAW JUDGMENT APPLICATION FOR SEPARATE TRIALS TENDENCY EVIDENCE

Citation: R v Brian Spillane (No 2) [2016] NSWDC 333
Court: District Court of New South Wales
Date: 21 September 2016
Judge(s): Berman SC DCJ

Background

The accused faced trial on an indictment containing eight counts relating to allegations made by six former students at St Stanislaus College, where he had held various positions. The alleged conduct spanned from 1971 to 1990 and involved a range of sexual acts. The accused had also signed a Statement of Facts admitting to sexual offences involving other boys at the school.

Two pre-trial applications were heard together. The Crown sought to have the evidence of each complainant admitted as tendency evidence for the jury's consideration in relation to all other complainants. The Crown also sought to admit evidence of the accused's admissions from the signed Statement of Facts as tendency evidence. The accused separately applied for the trials involving each complainant to be heard separately.

The parties agreed the two applications were intertwined: if the Crown's tendency evidence application succeeded, there would be no proper basis for ordering separate trials.

  • Whether the evidence of each complainant, and the accused's signed admissions, had sufficient probative value to be admitted as tendency evidence under the applicable rules
  • Whether close or striking similarities between individual acts of alleged misconduct were required before tendency evidence could be admitted
  • Whether tendency evidence could properly go to a state of mind (a sexual interest in boys aged 11 to 16), even where the specific sexual acts alleged varied considerably
  • Whether the accused was entitled to separate trials for each complainant

Decision

The accused argued that because the alleged and admitted acts differed widely in their nature, the proposed tendency evidence lacked significant probative value. The court rejected this as the central framing. Berman SC DCJ held that close or striking similarities in conduct are not a legal prerequisite for tendency evidence to carry significant probative value. The relevant question is whether the evidence has the capacity to support an inference of guilt, assessed against any realistic alternative explanation consistent with innocence.

The court emphasised that a tendency can relate to a state of mind, not only to a pattern of identical acts. In this case, the Crown identified the tendency as a sexual interest in boys aged 11 to 16, combined with the use of a position of authority and pastoral relationships to gain access to those boys. The court reasoned that various dissimilar sexual acts can each be a manifestation of the same underlying sexual interest, much as a person may express a sexual interest in any individual through varied conduct. The court illustrated the point by noting that kissing a young boy on the lips while dressed in underwear, and masturbating a different boy, are both capable of evidencing a sexual interest in boys of that age despite their superficial differences.

Applying the principles from Hughes v R [2015] NSWCCA 330, the court found that the evidence of all six complainants and the admitted conduct in the Statement of Facts had significant probative value. Although dissimilarities existed, the table of similarities prepared by the Crown (which was not challenged for accuracy) demonstrated common features, including that access to each complainant was obtained through the accused's institutional role. Accordingly, the tendency evidence was admitted and the application for separate trials was refused.

On one discrete issue, the court reserved its position. It declined to rule pre-trial on whether certain uncharged acts referred to by two complainants were admissible as tendency evidence in relation to the counts involving those complainants specifically. The court noted that the High Court's decision in R v IMM [2016] HCA 14 may have implications for that argument, since the majority in that case held that tendency evidence from a complainant going to an accused's interest in that same complainant will often have limited probative value. That question was left for the trial judge to resolve in light of the oral evidence as it emerged.

Orders Made

  • The evidence of each complainant, as it formed the basis of the counts in the indictment, together with evidence of the accused's admissions, was admitted as tendency evidence in relation to all complainants on the indictment.
  • The accused's application for separate trials was refused.

Key Takeaways

  • The District Court confirmed that close or striking similarities between individual acts are not required before tendency evidence will be found to have significant probative value; the similarities required will depend on the particular tendency alleged.
  • Where the tendency in issue is a state of mind, such as a sexual interest in a defined class of persons, varied and dissimilar acts may each be capable of evidencing that state of mind, and their dissimilarity does not automatically deprive them of probative weight.
  • In assessing significant probative value, the relevant inquiry is whether the evidence has the capacity to support an inference of guilt and whether a realistic innocent explanation exists, drawing on the approach confirmed by the Court of Criminal Appeal in Hughes v R [2015] NSWCCA 330.
  • An accused's signed admissions to prior sexual offences can be tendered as tendency evidence without also adducing evidence of the resulting convictions; the admitted conduct itself carries the evidentiary weight.
  • The High Court's decision in R v IMM [2016] HCA 14 remains a live consideration where a Crown seeks to use uncharged acts alleged by a particular complainant as tendency evidence against the accused in relation to the counts concerning that same complainant.

Legislation and Cases Referenced

Cases:
- Hughes v R [2015] NSWCCA 330
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451
- R v IMM [2016] HCA 14
- R v PWD [2010] NSWCCA 209; 205 A Crim R 75

Legislation:
- Evidence Act 1995 (NSW), s 97 (tendency evidence) (referenced by implication through the court's discussion of "significant probative value" under the tendency rule; not cited by name in the decision text provided)