Citation: Regina v TS [2004] NSWCCA 38 revised – 05/03/2004
Court: NSW Court of Criminal Appeal
Date: 4 March 2004
Judges: Mason P, Wood CJ at CL, Sully J
Note on publication: Section 11 of the Children (Criminal Proceedings) Act 1987 prohibits publication of the accused's name. The accused is referred to throughout as "TS."
Background
TS, a young man, was convicted in the District Court before Finnane DCJ and a jury of one count of detaining a person for sexual advantage and one count of aggravated sexual assault in company. The offences arose from an incident at a car park toilet block in Bankstown on 30 August 2000, in which the complainant was assaulted by a group of youths including TS.
TS had originally been indicted alongside four co-accused. He successfully obtained a separate trial on appeal before his matter came on for hearing. However, by the time his trial was about to commence, the jury in the joint trial of his co-accused (the "first trial") was already in deliberations.
The timing created a significant problem. Verdicts were returned in the first trial during the course of TS's trial, generating sensational and widespread media coverage. Defence counsel raised concerns about the impact of that coverage on TS's ability to receive a fair trial, making applications for a jury discharge and a temporary stay. The trial judge refused those applications. TS appealed his convictions, arguing the resulting media atmosphere fundamentally compromised his trial.
Legal Issues
- Whether the trial judge had power to direct that verdicts in the first trial be taken in-camera pending the outcome of TS's trial.
- Whether the trial judge erred in refusing to discharge the jury following the sensational media coverage of the first trial's verdicts.
- Whether a miscarriage of justice arose from the prejudicial media coverage during TS's trial.
- Whether the sentences imposed were manifestly excessive or otherwise affected by error.
Decision
Ground 1: In-camera order for the first trial's verdicts
The Court accepted that the trial judge had power to take the first trial's verdicts in-camera. However, the majority found this would have had little practical utility: the judge had no power to suppress publication of the verdicts outside the courtroom. Accordingly, the refusal of that application was within his Honour's discretion, and this ground failed unanimously.
Grounds 2 and 3: Discharge of the jury and miscarriage of justice (majority)
Mason P and Wood CJ at CL upheld these grounds by majority and ordered a new trial. They found that the back-to-back scheduling of TS's trial immediately following the first trial, combined with sensational media reporting of the first trial's guilty verdicts, effectively nullified the benefit of the separate trial that had been ordered. The offences in both trials overlapped factually, and the connection between them would have been apparent to any attentive member of the public. The atmosphere of anger and hostility generated by media coverage of the first trial lingered heavily over TS's own proceedings.
The majority found that judicial directions given during the trial did not adequately cure the prejudice. Some directions may in fact have prompted the jury to draw connections to the first trial. While the Crown case was strong, the majority held this was an extreme case in which appellate intervention was warranted: fairness and the appearance of fairness had been compromised to an unacceptable degree. They observed that the trial judge ought to have considered, of his own motion, whether a brief adjournment would have resolved the problem, even though no simple application to that effect had been placed before him.
Sully J dissented on these grounds, finding no miscarriage of justice had been established.
Sentence
The Court (Sully J, whose reasons dealt with sentence given the majority conviction outcome) found no error in the sentencing approach. The objective criminality was described as enormous, and the youth of the offender, while a legitimate mitigating factor, could not displace the need for significant punishment. The sentences were not characterised as manifestly excessive. Leave to appeal against sentence was granted but the sentence appeals were dismissed.
Orders Made
Note: The orders reproduced in the provided text are those of Sully J on the sentence appeal only. The majority orders on conviction are described in the body of the judgment but were not reproduced in the orders section provided.
- Appeals against conviction dismissed (Sully J; majority ordered conviction set aside and new trial).
- Leave to appeal against sentence granted.
- Appeals against sentence dismissed.
Key Takeaways
- A conviction may be set aside in an extreme case where the trial has miscarried due to an atmosphere of external hostility, even where the Crown case was strong. The majority of the Court of Criminal Appeal found this threshold was reached here.
- Scheduling related trials back to back creates a real risk that media coverage of verdicts in one trial will irremediably contaminate the jury in the subsequent trial, particularly where the factual overlap between the two trials is apparent to the public.
- Trial judges bear a responsibility to consider, of their own motion, whether a short adjournment could protect a co-accused's right to a fair separate trial, even when no formal application to that effect is made.
- Judicial directions to a jury do not automatically remedy the prejudice flowing from sensational media coverage. Where directions may themselves invite the jury to draw connections to a related trial, they may aggravate rather than cure the problem.
- The youth of an offender remains a relevant sentencing consideration but does not displace general deterrence and retribution where the offending is of considerable gravity and conducted in a manner consistent with adult criminal behaviour.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
Cases Cited:
- Chami (2002) 128 A Crim R 428
- Crofts v The Queen (1996) 186 CLR 427
- Driscoll v The Queen [1977] 137 CLR 517
- Georgiou (2002) 131 A Crim R 150
- Gilbert v The Queen (2000) 201 CLR 414
- House v The King [1936] 55 CLR 499
- Maric v The Queen (1978) 52 ALJR 631
- Mraz v The Queen (1955) 93 CLR 493
- Murphy v The Queen (1989) 167 CLR 94
- R v Boland [1974] VR 849
- Reg v Gordon [1994] 71 A Crim R 459
- R v Long; Ex parte Attorney-General (Qld) [2003] QCA 77
- Re K [2002] NSWCCA 374
- The Queen v Glennon (1992) 173 CLR 592