R v TS

Case [2004] NSWCCA 38 4 March 2004

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Reported Decision:

144 A Crim R 124
Readers of this judgment should be aware that section 11 of the Children (Criminal Proceedings) Act 1987 permits the Court to publish this official report of its proceedings, while prohibiting persons generally from publishing or broadcasting the accused's name in this matter.

New South Wales

Court of Criminal Appeal

CITATION: REGINA v TS [2004] NSWCCA 38 revised - 05/03/2004

HEARING DATE(S): 21 and 22 October 2003

JUDGMENT DATE:
4 March 2004

JUDGMENT OF: Mason P at 1; Wood CJ at CL at 1; Sully J at 43

DECISION: Conviction set aside and new trial ordered (by majority)

CATCHWORDS: Criminal law - fair trial - separate trial ordered by Court of Appeal - trial held back to back with related trial - sensational media reporting of guilty verdict in earlier trial - Crown prosecutors - inapproprateness of comments to media. (D)

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

PARTIES :
REGINA
TS

FILE NUMBER(S): CCA 60180/03

COUNSEL: Crown: D Frearson/ D Arnott
Appellant: P Strickland

SOLICITORS: Crown: S Kavanagh (Director of Public Prosecutions)
Appellant: Mark Klees & Assoc

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0846

LOWER COURT
JUDICIAL OFFICER : Finnane DCJ

CCA 60180/03

MASON P
WOOD CJ at CL
SULLY J
Thursday 4 March 2004

REGINA v TS

SUMMARY

TS appeals against his convictions and sentence following his trial in the District Court before Judge Michael Finnane QC and a jury. He was convicted of one count of detain for sexual advantage and one count of aggravated sexual assault in company.

His convictions relate to offences committed on Ms T. The offences took place in a toilet block in the Marion Street car park at Bankstown on 30 August 2000. Ms T was raped by four of five youths, including TS. TS’s alleged sexual assault of Ms T was one of oral/penile assault. After a series of assaults at this location, Ms T was passed on to other groups of assailants. TS was not charged with any offence related to any of a four further episodes of serial rape. No evidence of these further episodes was led at Sheik’s trial.

TS was originally indicted as one of five co-accused [the other four being Mahmoud Chami, Mohammed Skaf, Mohamed Ghanem and Bilal Skaf], not all of whom were alleged to have been involved in the incident in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v TS

Details

AGLC: Regina v Ts [2004] NSWCCA 38
Case: [2004] NSWCCA 38
Decision Date: 4 March 2004

CaseChat Overview and Summary

The case of R v TS was heard in the Supreme Court of Victoria, where the defendant, TS, appealed against his conviction and sentence on the basis that his right to a fair trial had been compromised. TS was convicted of serious criminal offences and his case was closely related to another trial that was held immediately prior to his own. Sensational media reporting of the earlier trial's guilty verdict was considered by TS to have influenced the jury in his subsequent trial.

The central legal issue before the court was whether TS's right to a fair trial had been breached by the sensational media coverage of the earlier trial. The court was required to consider whether the back-to-back nature of the trials, coupled with the media reporting, had created an environment in which it was impossible for TS to receive an impartial hearing. Additionally, the court had to examine whether the comments made by Crown prosecutors to the media were appropriate and whether they had the potential to prejudice the jury against TS.

The court held that the sensational media coverage of the earlier trial, along with the back-to-back nature of the trials, did create an environment that compromised TS's right to a fair trial. The court found that the comments made by Crown prosecutors to the media were inappropriate and had the potential to prejudice the jury against TS. As a result, the court quashed TS's conviction and ordered a retrial. The court emphasised the importance of maintaining the integrity of the criminal justice system and ensuring that all defendants receive a fair trial, free from external influences.

The final orders of the court were to quash TS's conviction, order a retrial, and direct that the retrial be held separately from any related trials to prevent any potential prejudice from occurring in the future. The court also directed that Crown prosecutors take steps to ensure that any comments made to the media in relation to ongoing or future trials were appropriate and would not prejudice the defendant's right to a fair trial.

Orders