R v Brian Spillane (No 2) [2016] NSWDC 333

District Court New South Wales

Medium Neutral Citation: R v Brian Spillane (No 2) [2016] NSWDC 333 Hearing dates: 20 September 2016 Date of orders: 21 September 2016 Decision date: 21 September 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Tendency evidence admitted The application for separate trials is refused Catchwords: CRIMINAL LAW – Judgment – Application for separate trials – Tendency evidence – No need for close similarities in alleged behaviour - Capability of demonstrating a state of mind. Cases Cited: 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 Category: Procedural and other rulings Parties: The Crown Brian Spillane Representation: Counsel: Ms E Wilkins SC – The Crown Mr P Little – The accused

Solicitors: Director of Public Prosecutions Benjamin & Leonardo Criminal Defence Lawyers – The accused File Number(s): 2008/55729 Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants.

Judgment

Introduction 1. In a judgment I delivered yesterday concerning the accused's application for a trial by judge alone, I briefly set out the procedural history of this trial and explained why it was that I was making rulings in advance of the trial due to commence on the 4th of October 2016. 2. This judgment concerns 2 related applications, one made by the Crown and one made by the accused. The Crown seeks the admission of what it says is tendency evidence. The accused seeks that the trials in relation to each of several complainants be held separately. The parties agree that the 2 applications are intertwined and that if I grant the Crown's application there would be no basis on which I would order separate trials. 3. The accused faces trial on an indictment containing 8 counts, some of which are in the alternative, relating to allegations made by 6 separate complainants. They were students at St Stanislaus College where the accused held various positions over a number of years. The allegations extend from 1971 to 1990. The Crown application is that the evidence of each complainant be admitted as tendency evidence which the jury can take into account when considering the allegations made by all other complainants. 4. The Crown seeks admission of other tendency evidence as well. The accused has made a number of admissions in relation to sexual offences committed on other boys. The admissions are contained in a document headed "Statement of Facts" which has been signed by the accused. The Crown seeks the admission of evidence, as tendency evidence, that the accused has admitted the commission of the offences set out in that document. The Crown does not seek the admission of evidence that convictions have resulted from those admissions. It is the accused's admitted behaviour which is relevant not the resulting legal consequences. 5. The Crown has to demonstrate that the tendency evidence is admissible.