REGINA v TS [2004] NSWCCA 38 | Case summary

I have considered this matter anxiously, I have looked at all the authorities. There is no doubt that there are some striking similarities between the trial of last week and the current trial, but only in part. There is no direct reference to the accused. This is not a case where he has been accused publicly as occurred in the Glennon case - of having been convicted of something or having been a type of person who would be expected to do this sort of thing. Having considered all the matters put to me, including also the need for trials to continue, unless it is impossible to do so, consider that I should not discharge the jury and I decline to do so. 16 A second application for discharge and temporary stay was made on 13 June. It too was refused, essentially on grounds that the further media coverage that had prompted the fresh application had not caused prejudice by any unfair linking of the earlier trial with the current trial of the appellant; and that any risk of a compromised trial could be dealt with by appropriate directions to the jury. 17 The prosecutor strenuously opposed the discharge applications of 11 and 13 June. 18 The trial continued and the appellant was convicted on 27 June 2002. 19 We mention below our concerns about some of the reasoning of the primary judge in refusing the applications made on 11 and 13 June. But the ultimate question is whether the conviction was tainted by miscarriage. This requires the Court to look at the totality of the material relevant to the issue raised, not just the material extant at the time of the particular interlocutory orders refusing discharge and temporary stay. In the present case this additional material cuts both way, because further damaging media coverage was, to a degree, counterbalanced by firm directions to the jury about their task. 20 The principles are not in doubt. The appellant bears the onus of establishing that he may have lost a chance which was fairly open to him of being acquitted (cf Mraz v The Queen (1955) 93 CLR 493 at 514). He was entitled to be tried solely on the evidence led in his trial. 21 The criminal justice system proceeds on what McHugh J described as "the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge" (Gilbert v The Queen (2000) 201 CLR 414 at 425 [35]). Merely because a jury gains access to inadmissible material does not mean that the trial miscarries even if that material is damaging in some way to the accused. 22 But there are questions of degree. Sometimes the extraneous material is so overwhelming in its potential impact that a fair trial has been compromised. What McHugh J speaks of as an "assumption" is not an irrebuttable legal presumption. 23 In the case of sensational media publicity that gives a jury access to damaging inadmissible material there may be cases where the jury's capacity to ignore the material is put into serious doubt. The courts have used various remedies including adjournment and express directions to the jury to exclude from their minds anything heard or perceived outside the courtroom. In some instances none of these remedies will be fully or sufficiently effective (Murphy v The Queen (1989) 167 CLR 94 at 98-99). 24 In Re K [2002] NSWCCA 374 this Court ordered a trial date to be vacated and stayed the proceedings temporarily. The accused was 17 and of Lebanese origin. The application was granted in light of recent unprecedented publicity attending the conviction and sentencing of youths of Lebanese origin for sexual assaults upon young Anglo-Saxon females. The Court said:

Although we have not found this matter to be without difficulty, we consider that the media coverage and the interest which has been exhibited by members of the public, both as to the trials to which we have referred and as to the sentences which have been imposed upon the convicted persons, has demonstrated such a degree of outrage in respect of the commission of such crimes, that there are unacceptable risks to the holding of a fair trial that a person from the same country of origin, charged with having committed a like offence in the same part of Sydney might be branded, or seen by reason of his racial origin and the nature of the offence to be connected with those other offences. 25 This reasoning was apposite to the circumstances facing this appellant when he stood trial in the present case. 26 Appellate courts give broad deference to the decisions of trial judges faced with applications for discharge and/or adjournment. But there is undoubted jurisdiction under s6 of the Criminal Appeal Act to set aside a conviction in an extreme case if the trial has miscarried because of the atmosphere of external hostility in which it was conducted (see, eg The Queen v Glennon (1992) 173 CLR 592 at 604, 616, Georgiou (2002) 131 A Crim R 150, R v Long; Ex parte Attorney-General (Qld) [2003] QCA 77). 27 In our view, this was such a case. 28 Two affidavits have placed before the Court giving details of media coverage of the earlier trial and its outcome. They span the period 7-14 June 2002 and include transcripts of radio broadcasts of leading Sydney radio and television stations. These broadcasts and telecasts provided extensive and graphic reportage of the earlier trial and strongly expressed commentary about the conduct, character and deserts of the accused/convicted men. For example, on 7 June 2002 Mike Carlton of 2UE referred to the convicted accused in the earlier trial as "louts, low-life, scum, vermin". 29 Of greater significance, the reportage gave details of the events that were the subject of the earlier trial. These were, in our view, amply sufficient to indicate that the two trials overlapped in the sense that each addressed the events occurring in a series of connected incidents in the Marion Street car park toilet, involving the same complainant. For example, the coverage of the earlier trial reported the date of the "gang rape", the age of the complainant and the fact that she was lured off a train and sexually assaulted at Bankstown railway station car park before being taken to other locations in the Bankstown-Chullora area. It also revealed that the four men convicted in the earlier trial were of Lebanese background and that they were not the only persons who had forced the complainant to have sex during the day in question. 30 The reportage also gave graphic details about the later sexual assaults at the Bankstown Trotting Club and the Chullora industrial complex. This was the very sort of material that, having nothing to do with the appellant TS, was intended to be kept away from the jury's mind and deliberation by the separate trial order made by this Court. The problem was compounded by the fact that, following the verdicts in the earlier trial, the Daily Telegraph and the Sydney Morning Herald reported that two of those found guilty had been convicted of a similar type of gang rape that had occurred 20 days earlier in Greenacre. 31 The nature and tone of the media coverage of the outcome of the earlier trial were such that the very concerns that led this Court to sever the joint indictment came home. For what it is worth, this was always an extremely predictable outcome in the event of guilty verdicts in the earlier trial. 32 The newspaper coverage on 8 June in relation to the guilty verdicts in the earlier trial was equally as graphic, condemnatory and precise in its reportage of facts sufficient to show that the earlier trial involved a common substratum of facts. 33 This media reportage bolstered the complainant's credibility upon which the nub of the case against the appellant turned. It did so in a manner that was graphic, immediate and compelling. The jury in the earlier trial were perfectly entitled to form a favourable view of the complainant, based on the evidence before them. But the intent of the separate trial order was that the jury in the appellant's trial would have to make up their own mind, unaffected by any material other than that led at the appellant's trial. 34 Throughout the appellant's trial there were directions to the jury to regard only the evidence in court and to ignore articles or "segments on television shows" (Tr p38). Some adverted to the media coverage of the earlier trial in ways that would have puzzled the jury, to say the least. For example, on 12 June the jury were directed (Tr p122): Members of the jury, can I just say I warned you when we started that the only evidence that is to be considered is the evidence in this case. I was doing a trial last week. That trial does not concern the accused in this case. There were reports of that trial. Again, it has nothing to do with this case, the reports of that trial. If any of you have read them, please ignore them. They concern other people. 35 But there were also directions that can only have caused the jury to think about the linkage with the earlier trial. Indeed, certain directions given in the summing up will only have confirmed that linkage and in terms that put beyond any doubt the guilt of the others who were charged with sexual assaults in the car park toilet. Thus, in the summing up on 26 June 2002 the jury were told (SU 15-16): The Crown case is that on this particular day the accused was one of four men who had sexual intercourse with the complainant. He is the only one on trial. You have heard that the others are being dealt with in other proceedings, and it seems to be a common feature of both cases that the others can be regarded as guilty men; people did in fact assault her as she suggested ….. The others you do not have to worry about. You can take it that they in fact forced themselves on her and had sexual intercourse with her without her consent. 36 The problem was not one that arose late in the appellant's trial. It was inevitable having regard to the timing of the commencement of the appellant's trial. It came home when the verdict was delivered in the first trial, an event that occurred only half a day into the evidence of the appellant's trial. The "administrative" issues that troubled his Honour paled into significance when compared to the matters raised on the appellant's behalf, being matters that this Court had flagged and endorsed when it directed that there should be separate trials. 37 The reasons given for rejecting the first discharge application included the following (Judgment of 12 June 2002 at pp13, 14): At the present time, there is no suggestion that the accused in the present trial is connected with the events of last week, except that if someone carefully read the particular newspaper articles to which I have referred, striking similarities could be seen, between the evidence in that trial and the evidence that has been given in this trial in part. Of course the articles also refer to a great deal of other material which is not going to be given in evidence in this trial at all. … There is no doubt that there are some striking similarities between the trial of last week and the current trial, but only in part. There is no direct reference to the accused. This is not a case where he has been accused publicly as occurred in the Glennon case - of having been convicted of something or having been a type of person who would be expected to do this sort of thing. Having considered all the matters put to me, including also the need for trials to continue unless it is impossible to do so , I consider that I should not discharge the jury and I decline to do so. 38 In our view, these passages show that the initial decision was vitiated by errors of some significance. First, the appellant's connection with the events of the earlier trial was in our view clear to anyone who thought about the matter. The similarities were indeed striking. What was reported about the basic facts of the earlier trial would have readily brought home to a juror that the appellant was part of the group of Lebanese young men who, on the jury's verdict in the earlier trial, had lured the complainant from the train to the car park and assaulted her in turns in the toilet there. 39 Secondly, the statement that the appellant's trial had to continue unless it was impossible to do so stated the discharge issue too highly in favour of the Crown. If it becomes necessary to discharge a jury to achieve a fair trial this is what must be done (cf R v Boland [1974] VR 849 at 866, Crofts v The Queen (1996) 186 CLR 427 at 440). 40 The directions given to the jury in the appellant's trial did not, in our view, remove the prejudice to a degree that enables us to be confident that the trial was not compromised. A conviction was not inevitable. The circumstances left a risk of substantial miscarriage of justice. The final directions would only have removed any lingering doubts about the common factual substratum by confirming the overlap. In light of this, earlier directions stating the absence of any connection would have caused the jury some wonderment. The feelings of anger, revulsion and general hostility to young Lebanese men that emanated from the media coverage of the earlier trial would have lingered heavily in the atmosphere of the appellant's trial. Its fairness and the appearance of its fairness were undermined to an unacceptable degree due to the unnecessary decision to direct back-to-back trials. 41 It is always regrettable that a new trial should be ordered, especially in a sexual assault case. But a conviction following an unfair trial is a conviction obtained at too high a price. The law must ever strive to uphold this standard, in the interests of all. 42 We would set aside the conviction and sentence and order a new trial. 43 SULLY J: In June 2002 Mr. TS, the appellant, was tried in the District Court at Sydney before his Honour Judge Finnane QC and a jury. The appellant was found guilty by the jury of two offences: first, an offence of detaining with intent to hold for sexual advantage, contrary to section 90A, since repealed, of the Crimes Act 1900 (NSW); and secondly, an offence of aggravated sexual assault without consent and in company, contrary to section 61J of the Crimes Act. The now-repealed section 90A provided for a maximum penalty of imprisonment for 20 years. Section 61J provided for the same maximum penalty. 44 The appellant stood for sentence on 6 September 2002. For the section 90A offence he was sentenced to imprisonment for 5 years with a non-parole period of 3 years 9 months. For the section 61J offence he was sentenced to imprisonment for 15 years with a non-parole period of 9 years. The sentences were made concurrent. It was ordered that the appellant serve his sentences in a Juvenile Justice Institution until he attained the age of 21 years. The appellant was born on 18 February 1984. He will reach the age of 21 years, therefore, on 18 February 2005. 45 The appellant now appeals against his convictions, and he applies, as well, for leave to appeal against his sentences. 46 The grounds of the appeal against the convictions are: [1] The learned trial judge erred in declining to direct that the verdict in the first trial be held in camera pending the outcome of the Appellant's trial.

REGINA v TS

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Judgment (6 paragraphs)

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Legislation Cited (4)

Cases Cited (10)

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