District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Brian Spillane [2016] NSWDC 332 Hearing dates: 19 September 2016 Date of orders: 20 September 2016 Decision date: 20 September 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The application for trial by judge alone is dismissed
Catchwords: CRIMINAL LAW – Judgment – Application for trial by judge alone - Pre-trial publicity - Juror research - likelihood that all judicial officers would be aware of accused's convictions - Application of community standards Legislation Cited: Criminal Procedure Act
Jury ActCases Cited: AK v Western Australia [2008] HCA 8; 232 CLR 438
Arthurs v State of Western Australia [2007] WASC
BJS v Regina [2011] NSWCCA 239
BJS v R [2013] NSWCCA 123
R v Dean [2013] NSWSC 661
R v McNeil [2015] NSWSC 357Category: Procedural and other rulings Parties: The Crown
Brian SpillaneRepresentation: Counsel:
Solicitors:
Ms E Wilkins – The Crown
Mr P Little – The accused
Director of Public Prosecutions
Benjamin & Leonardo Criminal Defence Lawyers
File Number(s): 2008/55729 Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants
Judgment
Introduction
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The accused Brian Spillane faces 2 forthcoming trials. 8 weeks have been set aside in this Court with the anticipation being that the trials will run one after the other. At least one of these trials has a very lengthy procedural history, indeed it is understood to be the oldest unfinished matter in the District Court at the present time.
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The trial was listed to commence before me on 24 August 2016 but due to the illness of counsel it was adjourned to 4 October 2016. In order to facilitate the ultimate resolution of that trial I have set aside time to consider some pre-trial applications, even though listing arrangements mean that I will no longer be the trial judge.
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This judgment concerns the application made by the accused that the trial be conducted before a judge alone.
Brief outline of the case against the accused
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The accused has been arraigned on an indictment containing 10 counts, some of which are in the alternative. They concern his alleged conduct at a time when he was working at St Stanislaus College in Bathurst. Each count concerns a student who was studying at the college at various times. The first allegation concerns an indecent assault allegedly committed in 1971 and the last an assault with act of indecency in 1990. The allegations range in seriousness and while some involve acts that are unarguably indecent, that is perhaps less so for other allegations.
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The accused has faced earlier trials as have others who were working at St Stanislaus College. In many cases, including in trials concerning this accused, convictions have resulted. A prime focus of the submissions made on behalf of the accused concerns the resulting publicity which has been given to the proceedings and the convictions in those earlier cases.
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The…
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- AGLC
- R v Brian Spillane [2016] NSWDC 332
- Case
- [2016] NSWDC 332
- Decision Date
CaseChat Overview and Summary
The court examined the extent of the pre-trial publicity and whether it had permeated the community to such a degree that it would be unreasonable to expect a jury to remain impartial. It also assessed whether the accused's prior convictions were so serious and numerous that they would automatically bias jurors against him. The court found that, while the publicity was extensive and the accused's past convictions were significant, these factors alone did not necessitate a trial by judge alone. The court held that the community standards of justice could still be met with an appropriately selected jury, provided that proper measures were taken to ensure impartiality.
The reasoning of the court was grounded in the principle that trials by jury are a fundamental aspect of the Australian justice system, and the integrity of this process should not be lightly undermined. The court concluded that, despite the challenges posed by the pre-trial publicity and the accused's criminal history, the jury system could still function effectively with the implementation of adequate safeguards. Therefore, the application for a trial by judge alone was dismissed, affirming the court's confidence in the jury's ability to deliver a fair verdict.
Orders
Orders of the court
The application for trial by judge alone is dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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