R v Brian Spillane - [2016] NSWDC 332

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 Act
Cases 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 357
Category: Procedural and other rulings
Parties: The Crown
Brian Spillane
Representation:
Counsel:
Ms E Wilkins – The Crown
Mr P Little – The accused
Solicitors:
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

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.
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.
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

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.
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.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brian Spillane

Details

AGLC: R v Brian Spillane [2016] NSWDC 332
Case: [2016] NSWDC 332
Decision Date: 20 September 2016

CaseChat Overview and Summary

In the case of R v Spillane, the accused faced charges of serious criminal offences. The application to be tried by a judge alone, rather than a jury, was dismissed by the court. The dispute centred on whether the pre-trial publicity and the accused's prior criminal history would make it difficult for a jury to remain impartial. The court was required to determine whether the prejudice stemming from such publicity would be so significant that it would impede the administration of justice. Additionally, the court had to consider whether the accused's past convictions would unduly influence potential jurors and if the community's standards of justice could be upheld under these circumstances.

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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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 Act
Cases 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 357
Category:	Procedural and other rulings
Parties:	The Crown Brian Spillane
Representation:	Counsel: Ms E Wilkins – The Crown Mr P Little – The accused Solicitors: 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