R v Brian Spillane

The application for trial by judge alone

1. The application is made under s 132 of the Criminal Procedure Act. The prosecutor has not consented to the application and so it is for me to make the orders sought if I consider "it is in the interests of justice to do so".
2. I may refuse to make that order if I consider that the trial will involve a factual issue that requires the application of objective community standards including (but not limited to) indecency (see s132(5)).

Submissions on behalf of the applicant.

1. Mr Little for the accused points to 2 aspects of the information regarding his client to be found on the internet. He relies on the evidence as showing what would happen if a juror in a trial involving Brian Spillane were to conduct the internet searches that Mr Gleeson conducted on 22 and 23 August 2016. He also relies on the possibility that a juror might remember reading such articles from the time they were published.
2. In response the Crown submits, (and I summarise of course) that part of the information available on the internet can be the subject of orders or requests that it be removed temporarily; that jurors are presumed to follow a judge's direction not to conduct independent research during the course of the trial; and that jurors are unlikely to remember having been exposed to such information in circumstances where the last relevant publication was in 2012, some 4 years ago.

The accused's convictions are well known by judges

1. There is an unusual aspect of the present application. It is notable that this application is based on the risks that a juror will become aware of, or remember, adverse publicity concerning the accused's earlier convictions when, if the trial by judge alone order were made, it could be almost guaranteed that the person making the decision as to whether the accused is guilty or not was aware of these earlier convictions.
2. That is a consequence of there having been earlier trials involving this accused in this court, and, perhaps more importantly, significant decisions in the Court of Criminal Appeal especially concerning the admission of tendency evidence in criminal trials, particularly child sexual assault trials, where the accused was the appellant (see BJS v Regina [2011] NSWCCA 239 and BJS v R [2013] NSWCCA 123). It would thus be a rare judicial officer in this Court who did not know about the accused's earlier convictions.
3. Mr Little's response to this observation is that judges are trained and experienced at putting prejudicial material out of their minds. That is of course easily accepted, but one of the problems with prejudice is that it can operate in subtle ways without the decision maker even being conscious of the influence of the information on his or her decision making process.
4. In Arthurs v State of Western Australia [2007] WASC 102 Martin CJ said, at [89] "despite their training and experience, it would, I think, be unwise to assume that judges are any less vulnerable to human emotions and frailty than any other member of the community". His Honour went on to add that the obligation to provide reasons allows a better examination of the question as to whether the judge's decision has been influenced by such extraneous factors, but judges' unconscious prejudices may not always be exposed in their reasons.
5. While I completely accept that judges are more likely to be able to ignore prejudicial material than a lay juror, the fairest trial of this accused would involve a fact finder who knew nothing about the accused's earlier convictions. A judge of this Court is highly unlikely to be such a person.
6. And the fairness of the trial is not the only consideration. It is important that the community accept the result of the accused's trial. The community is less likely to accept that justice has been done in a trial where the decision maker knew of the accused's earlier convictions than it is where the decision maker makes the decision without being exposed to that prejudicial information.
7. In deciding between the 2 modes of trial I have to decide between a jury trial where there is a risk that the fact finder will become aware of those earlier convictions and a judge alone trial where it is almost inevitable that the fact finder will be aware of those convictions.
8. Whilst not the most important factor in me reaching the conclusion I have concerning this application, the circumstance to which I have just referred is a matter that I have taken into account.
9. For the reasons I have given, I consider that this is a factor pointing to the interests of justice requiring a trial by jury.

The application of community standards (s 132(5) Criminal Procedure Act)

1. The next matter concerns the question as to whether there will be a factual issue at the trial requiring the application of objective community standards concerning indecency.
2. In many, if not most, trials involving allegations of indecency there is no real issue as to whether the actions alleged were indecent. That is the case for most of the allegations made against this accused. However 2 particular allegations concern behaviour where, it is possible, a juror might consider that the ordinary standards of decent people in the community are such that the accused's actions were not indecent. In one case the accused is alleged to have squeezed the buttocks of a complainant after tucking in his shirt and in another case he is alleged to have kissed another complainant whilst he, the accused, was in his underwear.
3. My assessment of community standards would probably be that such behaviour was indecent, but to state the obvious, and as reflected in s 132(5), the decision as to what community standards are is better made by a cross section of the community than a single judge. A jury is in a much better position than a judge is to decide whether the Crown is able to prove beyond reasonable doubt that the actions of the accused which I have just described are indecent.

Questions regarding credibility.

1. Clearly in the trial of this accused the credibility of the complainants will be fundamentally at issue. If the accused gives evidence his credibility will be at issue too.
2. This circumstance has been regarded as a factor tending to operate in favour of jury trial (see R v McNeil [2015] NSWSC 357 at [102] and R v Dean [2013] NSWSC 661 at [59]). Along with Latham J and Johnson J, I agree with Lord Devlin that juries are better than judges in assessing the credibility of a witness.
3. Latham J in R v Dean and Johnson J in R v McNeil quote a passage from "Trial by Jury" which had been cited by Heydon J in AK v Western Australia [2008] HCA 8; 232 CLR 438 at 472 [94]: "[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers."
4. I will explain why I agree with that opinion. Judges receive no special training in determining whether or not a witness is telling lies. True it is they make such decisions with considerable regularity, but rarely if ever does the judge receive any feedback as to whether his or her decision was correct.
5. It is a fact of life that judges are individuals and, try as they might to avoid this, they will bring to bear their individual experience of life in deciding a witness' credibility. But where a jury is called upon to decide such issues, each juror is able to contribute to the discussions surrounding the issue from his or her point of view informed by that juror's experience of life.
6. Put simply the jury has a much wider experience of life than a single judge and in some areas, assessing credibility being one, it can be expected that the wider the experience being brought to bear on the issue, the better the resolution of that issue by the decision maker. If a juror were to express idiosyncratic views about the task of assessing credibility other jurors can correct the assumptions of that juror. But where a judge makes the decision alone, there is no similar corrective mechanism.
7. The result is that I regard the fact that the credibility of the complainants, and the accused if he chooses to give evidence, will be a crucial issue in the trial, as being an important matter operating in favour of this trial being conducted with a jury as the finder of facts rather than a judge.

Memory of relevant events

1. I do not place much weight of the submission made on behalf of the accused that it is possible a juror will remember some publicity concerning the accused. Firstly, as I have already noted, the last such publicity was in 2012. Given the distressing regularity with which publicity is given to convictions for child sexual assault, and as the work of the Royal Commission into Institutional Responses into Child Sexual Abuse is publicised, the chances that a particular juror will remember anything about this accused or the school are limited indeed.
2. As the Crown pointed out there is a real issue as to whether potential jurors would have read the publicity in the first place. Indeed it seems that even former students at the school, including some of the complainants in this trial, were not aware of such publicity at the time they made their complaints to police, the evidence to justify that submission by the Crown being found in a folder of material tendered on this application but primarily relating to the admission of tendency evidence which is the next application I will consider.
3. In any case, if such a juror did recall anything then it can be assumed that he or she would ask to be excused when the judge calls upon members of the jury panel before empanelment in accordance with s 38(7)(b) of the Jury Act.

Juror research during trial

1. That leads to what is to my mind the most important aspect of the application made by the accused - the risk that a juror will conduct research during the course of the trial.
2. Although I accept that court orders, or requests to media organisations, may lead to some of the material referred to by the accused being temporarily made unavailable, there will undoubtedly remain adverse information concerning the accused to anyone who searches his name, or the name of the school, during the course of the forthcoming trial.
3. The Crown relies on many statements of principle in which it is stated that the criminal law proceeds on the assumption that jurors obey judge's directions. These days such directions invariably involve judges telling jurors that they must not make any enquiry of any kind about anything that comes up in the course of the trial. Such directions would commonly include a reference to the offence created in s 68C of the Jury Act and an explanation as to the unfairness that would result from a juror conducting his or her own enquiries.
4. However, it has to be recognised that such directions are not universally obeyed. Recent work by Professor Jill Hunter, "UNSW Jury Study: Jurors' Notions of Justice", cannot be ignored. The law presumes that judges' directions are followed by jurors, it does not ignore evidence to the contrary.
5. The application of Professor Hunter's research to this particular trial is deserving of analysis.
6. Professor Hunter's study concerns jurors who received different directions from different judges. What I have to consider is the risk that a juror will conduct some research after being given a direction which the judge in this particular trial will fashion, well knowing that there is prejudicial material out there. In other words Professor Hunter's study was not limited to an examination of the effect of directions given by judges in circumstances where prejudicial material would be found if a juror conducted research on the internet. But the direction to be given by the judge in this accused's trial will be fashioned on the basis of the judge's knowledge that the direction he or she gives may be of more importance than usual in ensuring the accused gets a fair trial.
7. In such circumstances one might expect a very complete direction from the trial judge, one which is more likely to be obeyed by jurors that directions given by judges who proceed on the basis that even if a juror did conduct some research no prejudicial material would be found.
8. Professor Hunter's work however demonstrates that there is a risk that some jurors might disobey the judge's direction not to engage in research no matter how forceful and persuasive that direction is. Such a risk is not enough to demonstrate that there should be a trial by judge alone. If it were, then any adverse information about an accused on the internet would be enough to require a trial by judge alone and that is certainly not the law.
9. What I have to do is to balance up the various considerations pointing in different directions - both for and against a trial by judge alone. In my view a properly constructed direction to jurors in the forthcoming trial that they must not carry out their own research will make it highly unlikely that a juror will become aware of the information available on the internet on which this application is based.
10. Even if a juror did disobey the direction not to carry out his or her own research, I consider it likely that the juror will tell other jurors what he or she has done, which in turn will likely prompt the judge to be told what the juror has done.
11. Although that may require that the jury is discharged, the point I am trying to make is that the risk that the accused will get an unfair trial because of the publicity on which this application is based is quite a small one.
12. When I balance that against the other matters to which I have referred earlier in this judgment I am satisfied that the interests of justice are best served by the accused's forthcoming trial being heard by a jury.

Order

1. I therefore dismissing the accused's application for a trial by judge alone.

Amendments 14 December 2016 - Full name of accused is now inserted due to the completion of all his outstanding matters DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2016