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. The relevance of similarities in the alleged misconduct 1. Because of the importance it played in submissions on behalf of the accused, it is as well to immediately examine the fundamental submission made by Mr Little on behalf of the accused. 2. It is his submission that because the allegations made by the complainants in the forthcoming trial and the admissions made by the accused in the "Statement of Facts" all involve widely different forms of sexual behaviour, then the evidence which the Crown seeks to have adduced as tendency evidence does not have significant probative value. 3. The Crown's response to that submission is to say that to focus on the question as to whether the allegations are sufficiently similar is to lose sight of the specific tendency which is alleged. 4. The tendency which the Crown seeks to demonstrate is set out in paragraph 2 of the Tendency Notice served on the accused. That paragraph reads as follows: (2) The tendency sought to be proved is his tendency to act in a particular way, or to have a particular state of mind, namely: 1. To have a sexual interest in 11- 16 year old boys; 2. To engage in sexual activities with 11 – 16 year old boys; 3. To use his pastoral relationships with 11 – 16 year old boys so that he could engage in sexual activities with them; 4. To use his position of authority to obtain access to 11 – 16 year old boys so that he could engage in sexual activity with them; 1. Whilst it can be accepted that "in making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence", see Hughes v R [2015] NSWCCA 330 at [183], that is not the same thing as saying "striking similarities, or even closely similar behaviour" are required before tendency evidence can be admitted(see R v PWD [2010] NSWCCA 209; 205 A Crim R 75 at [79] quoted with apparent approval in Hughes at [178]). 1. I do not believe that it is the law that the only way which purported tendency evidence can have significant probative value is if close similarities in behaviour are demonstrated. 2. It is important of course not to lose sight of the fact that the tendency to be demonstrated is not merely a tendency "to act in a particular way" but may also be a tendency "to have a particular state of mind". In the present case the Crown submits that the behaviour referred to by the complainants, and other behaviour admitted by the accused, represents a manifestation of the accused's particular state of mind namely "to have a sexual interest in 10 – 16 year old boys" (see para 2(a) of the Tendency Notice). 3. That is consistent with general human behaviour. A person who has a sexual interest in another person may express that interest through the performance of various forms of sexual conduct. Each dissimilar action is capable of suggesting the reason for the behaviour - namely a sexual interest in the other person. It would be a rare case where a sexual interest was expressed by only one type of sexual behaviour. 4. I fully appreciate that what is alleged in the present case is not limited to a sexual interest in a single particular person, but that does not detract from the point I am trying to make, which is that when I consider the question of whether the Crown has shown that the evidence has significant probative value, dissimilarities in behaviour do not necessarily mean that the evidence does not have that quality. 5. At one stage Mr Little made the submission that "a kiss is different to masturbation". That is easily accepted, but kissing a young boy on the lips while wearing only underwear and masturbating a different young boy are capable of suggesting a sexual interest in 10 - 16 year old boys despite the dissimilar nature of the 2 activities. 6. That is not to say that the Crown does not rely on what it says are similarities in the behaviour alleged and admitted. Nor do I mean to suggest that whether or not there are similarities is a question to be ignored, indeed in Hughes at [167] the Court of Criminal Appeal holds that the extent and nature of any similarity is relevant to the question as to whether evidence has "significant probative value" noting that this statement of principle was earlier articulated by the Court of Criminal Appeal in R v Ford [2009] NSWCCA 306; 201 A Crim R 451. 7. The Court in Hughes summarises the position this way, 182. Thus, in summary, the law in this State is that whether the Court thinks that evidence has significant probative value for the purposes of s 97 involves an assessment by the Court as to whether a jury could treat it of importance in supporting an inference of guilt of the accused on the count charged. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternate explanation consistent with innocence. 183. In making the assessment whether evidence tendered as tendency evidence has significant probative value, regard will inevitably be had to similarities in the conduct relevant to the offence. That is different from requiring that the conduct bear similarities to the conduct with which the person is charged. This was emphasised by the Court in Saoud where Basten JA observed, at [44], that "the nature of the similarities will depend very much on the circumstances of the case". The particular case before me. 1. With those statements of principle in mind let me turn to this specific matter. In the case before me the conduct alleged by each complainant is as follows: * S – touching and squeezing his genitals; * J – kissing him while the accused was in his underwear; * K – masturbating himself under his priest's robes and kissing him on the mouth; * L – masturbating his, the complainant's, penis; * M – squeezing him on his bottom having put his hand down his pants to tuck in his shirt; * N – pressing his erect penis against the complainant's back while he was sitting down. 1. In the admissions the accused admits to: * Kissing one boy on the lips; * Kissing a complainant on his mouth while he was sitting on the accused's lap; * Kissing a complainant on the mouth on multiple occasions; * Rubbing a complainant's leg whilst they were sitting very closely together and whilst asking the complainant questions of a sexual nature, then later touching the same complainant's penis through his shorts. 1. In all cases the accused's access to the complainants was obtained through his position in the school, with the boys being students there. 2. The Crown summarised what similarities there are in these allegations in a document which was marked for identification number 3. It set out in table form a summary of the similarities in behaviour. Mr Little did not challenge the accuracy of that summary. 3. The document demonstrates that whilst there are differences between the various allegations made by the complainants, including those the subject of admissions by the accused, there are similarities as well. As an example only one boy alleges that the accused pressed his penis up against him but a number of them allege that the accused would kiss them on either their cheeks or mouth or nuzzle their necks. 4. Care must be taken in interpreting the table too. All of the items q), r), s), t) and u) refer to the accused having some form of contact with the genitals of young boys yet the Crown has divided such conduct up for the purposes of the table. 5. In each case the accused had a position of substantial authority over the complainant. Even if in some cases there was no overt use of that authority it remains the case that his position of authority enabled the offences to take place and reduced the risk that his actions would come to the notice of the police. 6. Analysis of MFI 3 and the evidence which it summarises enables me to find that even though the accused's position of power was similar in all cases, the actual acts described by the complainants are not strikingly similar or perhaps even closely similar. While that is of course relevant to an assessment as to the probative value of the evidence as I have repeatedly noted above, evidence can have substantial probative value even in the absence of close similarities. 7. Indeed the outcome in Hughes illustrates precisely that. Although the trial judge considered the pattern of behaviour revealed by the evidence of the complainants as being "manifest, if not striking" that was not based on striking similarities in the particular conduct which the complainants in that case alleged. The trial judge found that what was established was "a tendency to take advantage of situations which arose where [the accused] came into contact with young female children". That finding was made even though the accused in that case came into contact with these children in various ways including "situations which arose from social and familial relationships, and also included situations which arose in the context of work relationships" and "including those arising from social relationships between [the accused's] daughter and the complainants" see Hughes at [137]. 1. The Court of Criminal Appeal found that the trial judge in Hughes was correct to find that there was substantial probative value despite the various circumstances in which the accused in that case came into contact with young female children, because of the pattern of behaviour which was revealed. 2. The analysis of the evidence in Hughes which the Court of Criminal Appeal undertook at [197] to [199] bears quoting in full because of the similarities between the evidence in that case and the evidence in the present. 197 …The Crown's case on tendency contended that there were two essential tendencies: to have a sexual interest in female children under 16 years of age; and to engage in sexual conduct with female children under 16 years of age. Those tendencies were exhibited in three different, but not significantly disassociated, contexts: of social and familial relationships; his daughter's relationships with her young friends; and the work environment. 198 These dissimilarities are obvious on their face. However, what was common to them all was that they represented occasions on which young females were present and the applicant used those occasions for the purpose of engaging in sexual activities with them. 199 The same may be said of the dissimilarity in the sexual conduct alleged in the various counts. However, notwithstanding the dissimilarities, the conduct alleged was sexual in nature, directed towards young females, on occasions that presented themselves to the applicant. Underlying the similarity was that the conduct was, in effect, referable to the circumstances as they presented to the applicant. In short, the conduct occurred opportunistically, as and when young female persons were in the applicant's company. 1. Apart from the sex of the complainants there is much in common with the case before me. 2. The Court of Criminal Appeal found that the trial judge in Hughes was right to assess the evidence before him as having substantial probative value. Similarly I find that the pattern of behaviour revealed in the present case is such that the evidence has significant probative value. Like the trial judge in Hughes I would cite Campbell JA's judgment in R v Ford at [125]: "In my view there is no need for there to be a 'striking pattern of similarity between the incidents'. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". 1. I am satisfied that that is the case in the matter before me. 2. Another submission made by Mr Little concerns the period over which the conduct was alleged to have taken place. Many tendency cases concern behaviour alleged to have taken place over a relatively short time. In this case the relevant behaviour is alleged to have taken place intermittently over an almost 20 year period. However the Crown points out that the evidence establishes that the first complaint relates to a time very soon after the accused started at the school and the complaints continue up until he left – with a gap in the making of complaints coinciding with a time when the accused was not at the school. 3. I do not regard the issue of the lengthy period covered by the counts on the indictment and the admissions as detracting from the probative value of the evidence the Crown seeks to have adduced as tendency evidence. Indeed where such behaviour is shown to have continued over many years, coinciding with the accused's time at the school, the probative value of the evidence as being capable of establishing the tendency relied on by the Crown is increased. The length of time over which the accused acted in the way alleged suggests that his sexual interest in boys is longstanding. 4. I find that the evidence which the Crown seeks to have adduced as tendency evidence makes it more likely, to a significant extent, that the accused acted in the way he is alleged to have acted. 5. The evidence is capable of being treated by a jury of importance in supporting an inference of guilt of the accused on each count under their consideration (see Hughes at 182). 6. In a case where the jury will need to evaluate the credibility of a student who alleges that the accused acted on a sexual interest in him in a particular way, it is significantly probative that other complainants, also students at the school where the accused held a position of authority, allege that the accused has acted on a sexual interest in them as well – even if the precise way in which the accused acted differs. 7. There is no real possibility of an alternative explanation consistent with innocence. Appropriately, given the evidence, Mr Little did not suggest that there was any possibility of joint concoction which might explain why multiple complaints have been made against the accused. Given the various times at which the various complainants were at school, and their lack of contact, or even awareness of each other, in assessing the probative value of the evidence I find that there is no possibility that joint concoction is an explanation for the various complaints with which I am dealing. 8. It is of course not enough to find that evidence has substantial probative value before it can be admitted as tendency evidence. The Crown must also demonstrate that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In this case Mr Little made no reference to this issue in his written submissions and made only passing reference in his oral submissions after being reminded that he had not addressed the matter. 9. Mr Little limited his submissions to arguing that in some cases the evidence reveals conduct which is relatively innocuous. That may well be the case but there is nothing to suggest that the jury might misuse the evidence in an illogical or emotional way. I am satisfied that the probative value of the evidence substantially outweighs the risk of unfair prejudice. 10. The result is that the evidence of each complainant as regards the material which forms the basis of the various counts in the indictment and the evidence of the admissions made by the accused will be admitted as tendency evidence for the purposes of the allegations involving all complainants on the indictment. Uncharged Acts 1. The precise form of the order I will make is important. It will be noted that I have just referred to "the material which forms the basis of the various counts in the indictment". This order is not to be taken as including evidence of what were described as uncharged acts in the course of submissions to me. 2. In the case of 2 complainants, L and M, reference is made to uncharged acts of the accused. L alleges that in his first year the accused would cuddle him in the playground because he was very homesick. He noticed that this happened to a lot of other students as well. M also speaks of the accused embracing him but describes these as being for long periods during which the accused would breathe heavily on his head and have his hands on M's body, around his back area, waist and bottom. M also says that when he was in year 8 and year 9 the accused would touch him in various ways, by getting him to sit on his lap, putting his arms around him, holding him close and rubbing his hands on his back and his legs. 3. The Crown says that such evidence is admissible as context evidence which is undoubtedly the case, and certainly Mr Little did not suggest otherwise. The Crown says that the evidence is admissible on another basis as well – as tendency evidence both in relation to the particular complainant who refers to such uncharged acts and as tendency evidence which the jury can take into account when considering the counts involving other complainants, particularly in the case of L's reference to being cuddled by the accused because he was homesick. 4. It is better that a ruling as to the admissibility of such evidence on a tendency basis is made after these 2 complainants have given their evidence at trial and in the light of that evidence. There may, for example, be oral evidence which puts a more sinister flavour on these uncharged acts. It may be that the oral evidence reveals that such conduct is more innocent than the written word would suggest. 5. The jury is going to hear the evidence anyway and the trial judge can make rulings as to whether the evidence is admissible on a tendency basis in the light of the evidence as it is actually given. 6. Any ruling by me on this issue would not affect whether evidence is adduced and would necessarily be susceptible of being revisited. Notwithstanding the obvious desire to have as many pre-trial rulings as possible resolved before the jury is empanelled, for the reasons I have just expressed I will leave the issue as to the admissibility of the uncharged acts as tendency evidence for the trial judge. At this stage I will simply note that the High Court decision in R v IMM [2016] HCA 14 might give the Crown pause before it repeats its argument that uncharged acts alleged by a particular complainant are admissible as tendency evidence in relation to the counts on the indictment concerning that complainant. The High Court held, by majority, that evidence from a complainant adduced to show an accused's sexual interest in that complainant can generally have limited, if any, probative value. Order 1. The evidence of each complainant as regards the material which forms the basis of the various counts in the indictment and the evidence of the admissions made by the accused will be admitted as tendency evidence for the purposes of the allegations involving all complainants on the indictment. 2. I refuse the accused's application for separate trials. ********** Amendments 14 December 2016 - corrected decision date in coversheet 14 December 2016 - Full name of accused now included due to the completion of all 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