R v TS - [2004] NSWCCA 38

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 the car park toilet block. TS made a pre-trial application for a separate trial. It was refused. He appealed and a separate trial was ordered.

By the time TS’s trial was to commence, the jury of the joint trial (‘the first trial’) was considering its verdicts. TS’s Counsel raised his perceived problems in relation to media coverage of the first trial and its impact on TS’s fair trial as well as coverage of TS’s trial (see paras 55 – 63).

TS’s Counsel made an application seeking suppression of the first trial’s verdicts until TS’s trial had concluded on the basis of a common factual mix, that is, events which occurred in the car park (see para 61). Judge Finnane refused the application. He reasoned that whilst he had the power to direct the first trial’s verdict to be given in-camera, he did not have the power to permit the publication of it at some later time. Granting the application with this practical outcome would bring the law into grave disrepute (see para 68). He said that he would take steps during TS’s trial to protect his rights to a fair trial. Judge Finnane contemplated whether he should conduct TS’s trial in-camera. He rejected an in-camera trial for TS but made certain other orders (see para 70).

When Ms T had completed her evidence in TS’s trial, cross-examination began. On this day, the Judge announced that there were verdicts in the first trial. He excused TS’s jury until Tuesday, giving them a warning about making early judgments or discussing the trial.

On Tuesday, TS’s Counsel applied for a discharge and a six-month delay of TS’s trial because of media coverage of the first trial’s verdicts. His Honour was troubled by the situation (see paras 76 – 77) and referred in detail to some coverage. He refused the application. Two days later, Skeikh’s Counsel made a second application for a discharge of the jury and temporary stay, based on two newspaper reports, both purporting to be a fair report of the Crown’s opening address in TS’s trial (see paras 80 – 83). Judge Finanne ultimately refused the second application, reasoning that the media coverage had not caused prejudice by any unfair linking of the first trial with TS’s trial. If the coverage conveyed something that was not part of the Crown case, any risk of a compromised trial could be dealt with by appropriate directions.

The Court (at paras 2, 89 – 96) queries why it was necessary to begin TS’s trial before the return of verdicts in the first trial and why a short adjournment was not granted. Despite the fact that Judge Finnane was never presented with a simple application for a brief adjournment and the Crown Prosecutor did not assist by raising this as an option, the Court finds that Judge Finnane ought to have considered such an option himself.

The Court finds that it is imperative that media coverage of related trials – especially sensational sexual offence trials – be factored into the arrangement of such trials (see paras 2, 92 – 96).

GROUNDS OF CONVICTION APPEAL

Ground 1 – Judge Finnane should have directed that the verdict in the first trial be held in-camera pending the outcome of TS’s trial. This ground fails.

The Court finds that Judge Finnane had the power to take the verdicts in the first trial in-camera. However, such an order would have had very little utility. Judge Finnane’s real problem was how to suppress publication outside the Courtroom. The Court finds that the Judge had no other power available to him and his refusal of the application was within his discretion (see paras 2, 98 – 105).

Ground 2 – Judge Finanne should have discharged the jury in Skeikh’s trial as a result of prejudicial media coverage during his trial and Ground 3 – A miscarriage of justice arouse as a result of prejudicial media coverage during Skeikh’s trial. Justices Mason and Wood uphold these grounds and order a new trial (see paras 4 – 42). Justice Sully finds both grounds fail (see paras 106 – 134).

These grounds argued that the sensational and widespread publicity during the critical period [the start of TS’s trial and the return of verdicts in the first trial] caused a miscarriage of justice and rendered this Court’s earlier decision for a separate trial worthless. It is argued that TS’s position was worse than if he had been tried jointly.

Justices Mason and Wood find that there was a miscarriage of justice notwithstanding a strong Crown case. They find that the ordering of a separate trial was effectively nullified by the events that occurred in relation to TS’s trial and conviction. They find appellate courts give broad deference to the decisions of trial judges faced with applications for discharge and/or adjournment. However, appellate courts have a power 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. Justices Mason and Wood find this was such a case (see paras 26 – 27).

Justices Mason and Wood find that media reporting of the first trial showed an overlapping of offences [TS’s offences occurred in a toilet block and his co-accused offences mainly occurred at subsequent locations]. They find that TS’s connection with the first trial’s events were clear to anyone who thought about it. The similarities to the events was “striking” (see para 38).

Also, that the directions given by Judge Finnane did not remove the prejudice which would enable them to be confident that the trial was not compromised. In fact some directions could only have caused the jury to think about the linkage to the first trial (see para 35). They find a conviction was not inevitable. They find that fairness and the appearance of fairness in TS’s trial was compromised primarily because feelings of anger, revulsion and general hostility to young Lebanese men that emanated from the media coverage of the first trial would have lingered heavily in the atmosphere of TS’s trial. Such fairness was undermined to an unacceptable degree due to the unnecessary decision of Judge Finnane to direct back-to-back trials (see para 40).

Justices Mason and Wood find that it is 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 (see para 41).

The Court finds that a Crown Prosecutor should never make any public comment to the media about a trial which he or she has prosecuted, which is a well established principle. The principle is necessary because of the unique role of the Crown Prosecutor in ensuring that the machinery of criminal justice functions with a proper objectively and impartiality (see paras 3, 113-114).

Ground 4 – Judge Finnane should have granted an application by TS to vacate or stay the hearing date of his trial.

It is argued that TS’s Counsel made an application to set a later trial date, although for various reasons there is no transcript or record of it. TS’s Counsel gave evidence to this Court. The Crown argued that there was a threshold issue as to whether the application was ever made. The Court finds that because of the imprecision of the available evidence that the Crown’s threshold point is upheld. This ground fails.

GROUNDS OF SENTENCE APPEAL (See paras 144 – 152)

Given the decision of the majority of the Court to order a new trial, Justices Mason and Wood were not obliged to consider and/or make findings in relation to TS’s sentences. Justice Sully was in the minority. He found that each ground of appeal against conviction failed. He was also required to consider TS’s sentence appeals, which he found also failed. If TS is convicted at his new trial, new sentences will be imposed.

FORMAL ORDERS OF THE COURT

The conviction and sentence are set aside and a new trial is ordered.

***

CCA 60180/03

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

REGINA v TS

Judgment

1 MASON P and WOOD CJ at CL: We have had the advantage of reading in draft the judgment of Sully J. We gratefully adopt his Honour’s description of the facts and issues.

2 We agree that Grounds 1 and 4 fail and with Sully J’s reasons, including his observations about the course of the trial.

3 We also agree with Sully J’s remarks about the inappropriateness of Crown Prosecutors making comments to the media about trials they are prosecuting or have prosecuted.

4 We would, however uphold Grounds 2 and 3 and order a new trial. In our view, there was a miscarriage of justice notwithstanding a strong Crown case.

5 Several young men were charged with offences relating to a series of sexual and other assaults involving a single complainant, each occurring on the evening of 30 August 2000.

6 Some of those charged pleaded guilty. Five indicated that they would plead not guilty. The Crown charged them on a single indictment.

7 In Chami(2002) 128 A Crim R 428, decided on 12 April 2002, this Court ordered that the appellant should have a trial separate from that of his four co-accused.

8 The reasons stated by Ipp JA (Bell J concurring) included the following:

17. The central point made by Mr Wasilenia is that while TS was involved in the first incident he was not involved in the others. TS has been joined in an indictment which contains 19 counts, only two of which are in respect of him. None of the evidence that relates to the other 17 counts bears on TS’s guilt or otherwise in respect of the two charges he faces. The trial is likely to last some 12 weeks and involve some 70 witnesses. The charges against TS should not take more than two weeks (and could take less) and will involve far fewer witnesses.

18. Essentially, the prejudice that is likely to be suffered by TS were the trial not to be separated falls into two categories. The first, and most serious, is that evidence relating to sexual assaults and other sexual misconduct, inadmissible against him, would be led at trial.

19. The conduct giving rise to the 19 counts on the indictment can only be described as brutal, cruel, callous and horrifying. The alleged offenders are all, or all but one, from the same ethnic group. The details of the offences are likely to arouse extremely hostile feelings against these persons. The common ethnicity of the offenders could well give rise to generalised feelings of disgust and anger. It is possible that the jury may be influenced by such feelings, brought about by the conduct of all the offenders, when considering their verdict in respect of the counts alleged against TS.

20. It is true that the trial judge would no doubt give very careful and explicit directions warning the jury against allowing any such feelings to affect their judgment. But in the highly charged atmosphere of such a trial where there will be a mass of evidence of these appalling crimes, it may be difficult for a jury, with the best will in the world, to remain entirely objective. In summary, I think that there is a risk of guilty by association.

21. There is no other category of prejudice that concerns the nature and effect of the evidence likely to be led at the trial. Mr Wasilenia did not disclose to us the nature of TS’s defence but whatever it may be, the evidence to be led in regards to the 17 charges unrelated to TS is not likely to concern TS at all, and, hence, is unlikely to impinge directly on whatever defence he might raise.

9 In our view, the order for a separate trial and the reasons for it were effectively nullified by the events that occurred in relation to the present appellant’s trial and conviction.

10 The appellant’s trial was ultimately fixed to commence on 5 June 2002. At that time the jury were deliberating in the trial of the other four men, Mohammed Skaf, Mohammed Ghanem, Bilal Skaf and Mahmoud Chami (“the earlier trial”). This had been proceeding since 29 April 2002 and had attracted considerable media attention. The horrific events charged well merited Ipp JA’s description in par [19] of the passage we have quoted.

11 The earlier trial spanned the events at the Marion Street carpark toilet that would in large part be led in the case against the appellant. It also involved the later events of the evening of 30 August 2000, but this had been the prejudicial linkage that had triggered the severance of the appellant’s trial.

12 On 6 June 2002 occurred the first of a series of applications by the appellant’s counsel designed to avoid or limit the prejudicial flow-on from the publicity surrounding the earlier trial that it was feared would take place because of the back-to-back listing of the two trials. An application for a suppression order in relation to the imminent verdict in the earlier trial was rejected. (This is the subject of the first ground of appeal.)

13 The appellant’s trial commenced. On Friday 7 June 2002 the complainant was called. She completed her evidence in chief. Her cross-examination had not proceeded very far when (after the luncheon adjournment) the jury in the earlier trial indicated they were ready to deliver their verdicts. They brought in verdicts of guilty. The jury in the appellant’s trial were then brought into court and excused until the following Tuesday, the Monday being a public holiday.

14 In light of the media coverage of the verdicts in the earlier trial, counsel for the appellant applied on the Tuesday for the discharge of the jury and a six-month delay before the re-commencement of the appellant’s trial. The refusal of this application is the subject of Ground 2 in the notice of appeal.

15 As Sully J points out, Finnane DCJ’s reasons for refusing the application focussed largely upon administrative problems associated with the sentencing proceedings for those convicted in the earlier trial and others who had pleaded guilty to charges stemming from the events of the night in question. Judge Finnane also said this:

It seems probably to me that the publicity that is likely to result when those sentences are awarded, will dwarf the publicity to which I have already referred to the trial of last week. This will almost inevitably lead to widespread media commentary, not just reporting, but they’re the editorialising in newspapers, on radio stations, and on television, possible interviews of politicians. It could be expected that the publicity would be extraordinary and extremely widespread.

There is something I would have to take into account if I decided to discharge the jury, as to what I would then do. 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.

The complainant has commenced to give evidence, has given evidence-in-chief largely. She has not been cross-examined, I think she got to a question or two before the proceedings had to be adjourned.

I must act on the assumption that a jury will take notice of what I tell them. I have told them already to disregard anything they hear about or read about concerning any other trial or any other matter, or anything that comes to their attention from outside this Court.

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:

Insofar as it was relevant to this case, it was said that the interests of justice required that the Court had to be astute to ensure that the appellant's right to a fair trial might not be affected by a risk of prejudice flowing from the extensive media coverage of recent trials and sentencing of youths of Lebanese origin convicted of sexual assaulting young females of Anglo-Saxon origin.

….

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

, 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.

[2] His Honour erred in declining to discharge the jury as a result of prejudicial media coverage that was published and broadcast during the Appellant’s trial.

[3] A miscarriage of justice arose as a result of prejudicial media coverage that was published and broadcast during the Appellant’s trial.

[4] His Honour erred in refusing to grant an application to vacate or stay the hearing date of the Appellant’s trial.”

47 The grounds of the application for leave to appeal against the sentences are:

[1] Sentence manifestly excessive.

[2] His Honour did not give adequate weight to the Appellant’s youth.

The Material Facts of the Offences

48 On 30 August 2000 a young woman, to whom I shall refer only as the complainant, was accosted by a group of five Lebanese youths on a normal, afternoon suburban train. The appellant was one of the five. She was coaxed by them into accompanying them to what she was told would be a marijuana-smoking session.

49 The complainant was escorted to a toilet block in a car park at Bankstown. There she was raped by four of the five youths, including the appellant. The complainant was treated throughout in a depraved and disgusting fashion, encompassing incidents of both penile/vaginal intercourse and oral/penile intercourse. The appellant’s rape of the complainant was one of the oral/penile assaults.

50 After this series of rapes, the complainant was, in effect, passed on to other groups of assailants. In each of four discrete incidents occurring at various other locations the complainant was raped by various combinations of assailants. The appellant was not charged with any offence related to any of those four further episodes of serial rape. No evidence of those further episodes was led at the appellant’s trial

The Course Generally of the Appellant’s Trial

51 The appellant was originally indicted as one of five co-accused, not all of whom were alleged to have been involved in the incident in the car park toilet block.

52 The indictment contained 19 counts. There were 17 counts alleging various sexual assault offences committed by each of the 5 co-accused. Of these 17 counts only two were charged against the appellant. The remaining two counts in the indictment charged offences of perverting the course of justice. Neither of those counts was charged against the appellant.

53 The trial of the five co-accused was fixed to commence on Monday 15 April 2002. The appellant made, by counsel, a pre-trial application for a separate trial. Judge Finnane refused the application. The appellant thereupon applied to this Court, and pursuant to section 5F of the Criminal Appeal Act 1912 (NSW), for leave to appeal against that decision. That leave application was heard on Friday 12 April 2002 by a Bench of this Court constituted by Ipp AJA, Sully J and Bell J. By majority the Court granted leave; upheld the appeal; and ordered the separate trial of the appellant.

54 The separate trial of the appellant was listed to commence on Wednesday 5 June 2002. By then, the joint trial of the other four co-accused had been held, and the jury was considering its verdicts.

55 On 5 June the appellant’s then counsel, Mr. Wasilenia, raised with Judge Finnane what counsel saw as potential problems for the fair trial of the appellant. Counsel outlined those problems by reference to media coverage that had been generated by the almost-completed trial, (to which I shall refer henceforth as the first trial); coupled with expected media coverage in connection with the appellant’s own trial. The transcript of counsel’s submissions does not read easily, but the gist of the submissions is caught by their concluding sentences which are recorded thus:

The point I am getting at is whilst your Honour will tell the jury don’t listen to what is on the television, don’t read the papers, but this jury, this is the one in the TS trial, if that sort of publicity is available, they will start thinking hang on, there was another trial and they found them guilty and so on. That is the danger. It can be cured by non-publication order in respect of the TS trial and any reference to it until it is completed, but whilst this trial is still proceeding, whilst there is a verdict to come down, and it may be some days yet, I think it is best that there be no reference in the TS trial or reference to the TS trial or any analogy capable of being drawn. Otherwise I will go off and get a motion for a stay of proceedings for six months and I don’t want to do that.

56 This submission drew from Judge Finnane a response to the effect that his Honour would not deal with the matter raised, without first having heard from counsel then representing various media interests. It seems that his Honour had heard submissions on some earlier occasion(s), and in other trial contexts, from counsel for those interests, and felt that he should do so again in the interest of consistency of approach.

57 His Honour did say, however, to Mr. Wasilenia:

I am sympathetic to the proposition though that you raise.

58 Towards the end of that same sitting day counsel for the media interests duly appeared. The Judge told him that there was an application “that there be a suppression order on the publication of any part of the proceedings until that trial is concluded”; the reference to “that trial” being to the appellant’s separate trial.

59 The Judge continued, speaking to counsel for the media:

As I would see it, the public interest problem is somewhat acute because it could be that the results of this trial come out before the trial in which Mr. Wasilenia is involved in concludes, it could come out at any time. It would be very difficult for the press to report what occurred without in fact drawing the conclusion, or enabling the public to draw the conclusion, they are talking about the very same events that formed one of the parts of this current trial.

If any of the accused in the current trial are convicted that could have an impact on his trial, so it seems to me there are slightly different considerations than applied in relation to the current trial, that is what I will have to consider tomorrow morning.

60 These observations developed thus:

GALLAGHER: Is it the publicity in respect of this current trial which is an issue or is it the publicity in respect of the next trial?

HIS HONOUR: I think it is the publicity in respect of this trial isn’t it?

WASILENIA: Yes. The point being if the results of the trial are published as your Honour indicates and results in a conviction then there is a real risk that members of the jury in my trial which is continuing may be influenced, albeit notwithstanding any direction given to them naturally, by what they read about the trial currently before your Honour, because the trial currently before your Honour has been on an almost daily basis a matter of considerable publicity, and even though today’s note of it was fairly small in the overall media picture, that is, only a few columns, but it still alerted bold headline that the jury was out and were all awaiting verdict.

GALLAGHER: Can I ask one question. What precisely is the identifying factor between the next trial and this one? I can see they are both rape trials.

HIS HONOUR: The identifying factor is ---

WASILENIA: Same complainant.

HIS HONOUR: Mr. Wasilenia’s client is a man called TS, he was one of a group of five men who took … … …, the complainant in the current trial, or accompanied her from the Bankstown railway station to a block of toilets at the Marion Street carpark at Bankstown. The current trial concerned in relation to that carpark what Mr. Mohammed Skaf did at those toilets, but in the course of the trial evidence was given against Mr. Skaf as to what Mr. Skaf did, it was also given as to what TS did and as to what the others did, they were not named. They were named in the court but not named publicly.

TS is also a close associate of Mohammed Skaf, I’m not sure whether there is going to be tendered in the next trial a document that links the two of them together.

CROWN PROSECUTOR: Yes, that is the Crown intention, your Honour.

HIS HONOUR: Right. Well there is a document that links the two of them together, so what could occur is the press would understandably report if there were convictions what the convictions were about, they cannot at this stage report who was convicted, but they can report the circumstances and the circumstances include the same complainant and the same set of toilets. It would be difficult, I would think, for a new jury to conclude that they weren’t dealing with exactly the same case. That is the thrust as I understand it of his argument.

61 When the Court re-assembled on 6 June, Mr. Wasilenia made an application which the transcript records as:

WASILENIA: As prefaced previously, it is an application by the accused in the trial of TS, that your Honour make an order suppressing publication of the jury result in the current trial, until such time as TS’s trial is concluded – we anticipate that will be some two weeks at the most – on the basis that there is a common factual matrix in the current trial, that it refers to events which occurred at a car park in Bankstown.

62 Mr. Southwick of counsel, recently instructed in place of Mr. Gallagher, now appeared for a major news outlet, and de facto for interested media organisations. Mr. Southwick opposed Mr. Wasilenia’s application. The transcript of what Mr. Southwick actually submitted appears to be inexact, in particular a passage which is recorded thus:

In terms of this specific defendant, and I do not know the reason for the separate trial, he has been specifically singled out and separated from the others and that very effect is something which to the extent this verdict may not have been something which they have been informed and made fully aware of.

If your Honour goes to the other course of suppressing the outcome in those other proceedings then yes there is a substantial overlap between those trials given the amount of publicity that already exists, the danger to the defendant.

It is possible to read this passage as conceding that there was such an “overlap” between the first trial and the appellant’s trial as carried potential danger of unfairness to the appellant; but given the state of the transcript, one cannot safely do more than note the opposition to the application.

63 There was discussion, in connection with the application, of the power(s) of the Judge to order the non-publication, until after the completion of the appellant’s trial, of any verdict(s) returned by the jury in the first trial. This discussion focused upon sections 118 and 119 of the Criminal Procedure Act 1986 (NSW), and in particular upon section 118. (Those sections were subsequently re-numbered as, respectively, sections 291 and 292 of that Act.) The relevant provisions are:

118 Proceedings in camera in certain cases

(1) Any proceeding, or any part of any proceeding, in respect of an offence to which this Division applies is, if the court so directs, to be held in camera.

(2) If the court makes a direction under this section, it may (either absolutely or subject to conditions) exempt any person from that direction to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose that the court thinks fit.

(3) The court may make a direction under this section on its own motion or at the request of any party to the proceedings.

(4) In determining whether to make a direction under this section the court is to consider the following matters:

(a) the need of the complainant to have any person excluded from those proceedings,

(b) the need of the complainant to have any person present in those proceedings,

(c) the interests of justice,

(d) any other matter that the court thinks relevant

(5) In this section:

complainant

, in relation to any proceedings for an offence means the person, or any of the persons, on whom the offence is alleged to have been committed and includes:

(a) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900 , the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and

(b) in relation to an offence under section 91G of the

, the person under the age of 18 years who is alleged to have been used for pornographic purposes.

119 Publication of evidence may be forbidden in certain cases

(1) In any proceedings against a person for an offence to which this Division applies, the court may from time to time make an order forbidding publication of the whole or any part of the evidence tendered in the proceedings or of any report or account of that evidence.

(2) If the prosecuting authority or the accused person indicates to the court that it is desired that any particular matter given in evidence should be available for publication, no such order is to be made in respect of that matter.

(3) Any person who contravenes an order under this section is guilty of a summary offence and liable to a maximum penalty of 20 penalty units.

(4) This section is subject to any Act or law under which evidence relating to a child under the age of 18 years, or a report or account of that evidence, may not be published.

64 It does not appear to me that there was any submission put to Judge Finnane to the effect that his Honour did not have, in any event, power to make the limited suppression order for which Mr. Wasilenia had applied. The Crown Prosecutor told his Honour that she was “neutral” in her attitude to the application.

65 The Judge gave judgment ex tempore.

66 His Honour began by noting that of the five persons who had been charged in connection with the first incident of serial rape, three had pleaded guilty; a fourth was a co-accused in the trial in which the jury was currently deliberating; and the appellant was the remaining person so charged. His Honour observed that the jury in the first trial “certainly knows about TS” because of the evidence adduced in that trial; but that it was “really difficult to know the extent of TS’s role or alleged role has been fully made public, but I will assume, for the purpose of the argument, that it has been made public to some extent already”.

67 His Honour then said:

Mr. Wasilenia does not complain about that. He approaches that matter on the basis that the jury, which is about to be sworn in, may have some knowledge that there has been a case going on involving a number of men. It is possible one of the members of the jury in waiting may have even heard the name of this particular accused person, but if so what could be said about that. What he is really concerned about, however, is the possible knowledge that the jury might have. There is another case that has been going on and it is of concern that if in the current case the jury should convict one or all of the persons concerned, the jurors in his case might draw a conclusions that as it seems to concern the same case that they are dealing with, they should do likewise.
I think that is a very real concern. It would be very rare that you would have a situation where five persons are charged with criminal offences against one complainant and a separate trial is ordered for one of them only and that separate trial then commences during the course of the jury deliberations of the trial concerning his co-accused in the first trial.

68 His Honour referred to authority which had been cited to him, and concluded that he had a discretionary power, deriving from section 118, to make the order sought. His Honour refused, however, to exercise that discretion in favour of the application. His Honour’s process of reasoning was articulated thus:

This is an extraordinary application in many respects. I have never, in my experience, heard of such an application being made. That is not to say that in this case, which is most unusual, the application is not a fully warranted one.

In my opinion, I have the power to make the order. I see nothing in the Nationwide News case which suggests I do not have the power to make this order. The question is whether I should make it.

The order itself does not seek anything other than the publication of the jury’s verdict be in camera and that I not permit the publication of that until after the conclusion of the current trial.

At the same time, I have the power to direct that the verdict be given in camera, but I do not have the power to permit the publication of that verdict at some later time to anybody. I merely can require the verdict be given in camera as part of the proceedings, even though up to the present time the proceedings have been in public with no part of the proceedings being totally in camera or at all in camera. Up to the present time all that I have done is limit who can be in court during the giving of evidence by the complainant. The proceedings have all been in the open.

I have the power to make the order. I think that is clear. The question is whether I should, as a matter of discretion, do it, having regard to the fact in particular, that I have to balance against the interests of justice and any other matter that I might think relevant, the fact that I have no capacity to permit the in camera order, then to be publicised at some later date. So far as I can see there is no statutory power to enable me to do it.

The accused’s rights have to be considered as part of the interests of justice. The interests of justice also, in my opinion, encompasses the need that criminal proceedings should, with rare exceptions, be conducted in public because it is only in this way that the public can have confidence that the criminal justice system is being properly administered. Secret proceedings breed suspicion. I am alive to the need to protect the accused and I will certainly take steps to do it in the trial.

I am not prepared, however, to make an in camera order prohibiting publication of the jury’s verdict. I am not prepared to do it because once I have done it there is no power in any one to permit it to be made public.

It would be contrary to the public interest that a trial, which has been publicised for weeks and weeks and weeks, should result in a verdict, which could never after be made public. Such a course would bring the law into grave disrepute. I think that is one of the interests of justice which I have to take into account.

Whilst I am sympathetic to the accused’s position and whilst I consider I have the power to make the order I decline to make it. I will not suppress the verdict of the jury.

69 Ground 1 of the conviction appeal grounds challenges this decision. I shall return presently to a particular consideration of this ground.

70 His Honour proceeded immediately to raise with Mr. Southwick “the question whether I should not of my own motion direct that the proceedings in … (the appellant’s trial)… either be conducted in camera, or that the publication of evidence in the trial be prohibited until after the jury verdict in the current case”. Neither Mr. Wasilenia nor the Crown Prosecutor opposed this course. Mr. Southwick did oppose it. Once again, his Honour gave judgment ex tempore. He rejected the expedient of a trial in camera; and proceeded:

I am reluctant to ban the media altogether from attending and members of the public from seeing a criminal trial in progress. I think that is an extreme step, and only invites a sort of suspicion as to what is really going on. Therefore, I do not propose to direct that the proceedings be held in camera. I do however forbid the publication of the whole or any part of the evidence in the proceedings until further order made by me.

Other than that, I make an order that the evidence of the complainant will be given in the absence of all persons in Court other than counsel, persons assisting counsel, court staff, the accused, the jury and any witnesses who might need to be there at the time she is giving evidence.

However, I permit the evidence of the complainant to be made available to members of the media through a special arrangement with the media room in this building. The media who attend that room and listen to that evidence, are prohibited from disclosing that evidence to any members of the public or from publishing it until further order.

71 There ensued various other preliminaries which are of no present importance; and in due course the appellant was formally arraigned and his trial began. Not a great deal of evidence was taken during what remained of this sitting day.

72 On the following sitting day, Friday 7 June 2002, the complainant was called. She completed her evidence in chief, and Mr. Wasilenia began his cross-examination. It had not progressed very far at all when the complainant requested, and was granted, a short break. There was not much time left before the normal luncheon adjournment, and it was taken there and then.

73 Upon the re-assembling of the Court at 2.00 p.m. the Judge announced that the jury in the first trial had reached verdicts. His Honour took those verdicts and discharged the jury in the first trial. His Honour then brought back into Court the jury in the appellant’s trial; and excused them until the following Tuesday, the following Monday being a public holiday. In doing so, his Honour said to the jury:

We have started in the case, obviously she has given all her evidence-in-chief and Mr. Wasilenia has just started cross-examining, he really only got a question or two into it so you don’t know what he is going to put. You really have to suspend judgment on everything, he hasn’t finished what he is doing. We are only at the preliminary stage of the case, you mustn’t make any early judgment or anything, and as I urged you before, please don’t discuss it with other people and get their views.

74 As soon as the appellant’s trial resumed on the Tuesday, Mr. Wasilenia foreshadowed an application for the discharge of the jury, the basis of the application being media coverage concerning the verdicts that had been returned on the preceding Friday. The application as actually formulated and pressed was for the discharge of the jury and for a six-month delay before the re-commencement of the appellant’s trial.

75 The Crown Prosecutor “strenuously” opposed the application. His Honour heard all the competing arguments, and reserved until the following morning his judgment on the application. On the following morning his Honour refused the application. Ground 2 of the conviction appeal grounds challenges this judgment. I shall return presently to a particular consideration of this ground.

76 The argument upon this application occupies 40 pages odd of the trial transcript, and it is obviously not possible to traverse all of it. I think, however, that it is clear from a reading of that transcript that his Honour was obviously troubled by the situation which then confronted him. His Honour appreciated, plainly, the obvious overlap between the evidence in the first trial, and the likely evidence in the appellant’s trial. His Honour seems to have felt, at least initially, that there was a persuasive case for a discharge of the jury; but to have been vexed by the practical difficulties, as his Honour saw them, of finding a subsequent date at which the appellant’s trial could be brought on with a proper confidence that its integrity was no longer compromised by media coverage of the first trial.

77 At one point his Honour observed that “(t)he interests of justice outweigh administrative harm”; but the longer the arguments continued, the more focused his Honour seemed to become upon administrative problems. One such problem was the likely impact of media coverage of the sentencing of those who had been convicted at the first trial, and of those participants in the first episode of serial rape who had pleaded guilty and were awaiting sentence. Another such problem was his Honour’s perception that another Judge ought not to be brought in to preside only at the appellant’s trial. A third such problem was his Honour’s current standing as designated Judge of trial in a matter due to begin at the commencement of the 2003 sittings and expected to continue for several months.

78 His Honour, in his reserved judgment, referred in detail to the contents of three particular newspaper reports, one in each of three separate newspapers; and made brief reference to certain radio and television reports of which complaint had been made. His Honour referred to various reported cases that had been brought to his attention during argument. His Honour referred to the likely media coverage of the sentences that were to be passed in the reasonably near future. His Honour then collected as follows his analyses and conclusions:

It seems probable to me that the publicity that is likely to result when those sentences are awarded, will dwarf the publicity to which I have already referred to the trial of last week. This will almost inevitably lead to widespread media commentary, not just reporting, but they’re the editorialising in newspapers, on radio stations, and on television, possible interviews of politicians. It could be expected that the publicity would be extraordinary and extremely widespread.

There is something I would have to take into account if I decided to discharge the jury, as to what I would then do. 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.

The complainant has commenced to give evidence, has given evidence-in-chief largely. She has not been cross-examined, I think she got to a question or two before the proceedings had to be adjourned.

I must act on the assumption that a jury will take notice of what I tell them. I have told them already to disregard anything they hear about or read about concerning any other trial or any other matter, or anything that comes to their attention from outside this Court.

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 files to continue, unless it is impossible to do so, consider that I should not discharge the jury and I decline to do so.

79 On Thursday 13 June, Mr. Wasilenia made a second application for a discharge of the jury, and for a temporary stay of the appellant’s trial.

80 This new application was based upon two newspaper reports: one in the “Sydney Morning Herald” and the other in the “Daily Telegraph”. Both articles purported to be a fair report of, among other things, the Crown Prosecutor’s opening to the jury in the appellant’s trial. Part of that opening had referred to a document in the appellant’s handwriting. The appellant had written to the effect: first, that he had procured two Samoan girls to go to the complainant’s home and threaten her with physical injury if she did not “drop the charges”; and secondly, that he and the addressee of the document, a co-accused, needed to coordinate “our stories …… so we don’t fuck up in court”.

81 The Crown opening did not make clear, but the fact was, that it was no part of the Crown case that the appellant had in fact procured others to threaten the complainant. The Crown’s point was, rather, and to quote from his Honour’s judgment on the application: “…..that this was a boast of his, but it showed a direct link between him and the complainant and knowledge of her, something which in an interview with the police he had denied, and a connection between him and …..(the particular co-accused) ……, his willingness to do something about this particular complainant”.

82 Mr. Wasilenia submitted that the articles, and in particular their headlines, conveyed to any reader, one of whom might easily have been a juror, that the Crown case was that the appellant had been serious, rather than boastfully untruthful, in what he wrote and sent to the particular co-accused. Mr. Wasilenia made additional submissions, but they repeated in substance the submissions that he had put in connection with the first discharge application.

83 The Crown Prosecutor opposed the application. She assured Judge Finnane that she would lead evidence in the Crown case to the effect that the appellant’s written statement about threats to the complainant was not a record of anything that had actually occurred.

84 Judge Finnane gave judgment ex tempore. His Honour refused the application. His Honour’s reasoning was, put broadly, that the media coverage had not caused prejudice by any unfair linking of the first trial with the current trial of the appellant; and that in so far as the coverage conveyed something that was in fact no part of the Crown case, any risk of a compromised trial could be dealt with by appropriate directions to the jury.

85 Ground 3 of the conviction appeal grounds challenges the correctness in law of this judgment.

86 From time to time during the course of the trial his Honour gave to the jury directions consequential to his successive decisions upon the successive applications which I have been summarising. I shall canvass those directions when we come to consider Grounds 2 and 3 of the conviction appeal grounds.

87 The appellant’s trial then continued until the return, on 27 June 2002, of the jury’s two verdicts of guilt.

Observations about the Course of the Trial

88 Before dealing with the individual conviction appeal grounds, I wish to make the following observations about the course of events, as I have described that course in the preceding section of this judgment.

89 First, I do not understand, from my reading of the relevant transcript, why it was thought necessary to begin the appellant’s separate trial before the return of the jury’s verdicts in the first trial.

90 I acknowledge that it is easy to be wise in hindsight; but, even so, I would have thought that it was obviously ill-advised so to proceed. One cannot think that the orderly administration of criminal justice would have suffered major disruption had the appellant’s separate trial been adjourned for a brief period in the order of a week. To have done that would have enabled the learned trial Judge:

[1] to have taken formally the verdicts in the first trial, and so to have been in a position to deal with any practical consequences upon the basis of actual knowledge of what the jury had in fact done, rather than upon the basis of speculation about what the jury might conceivably do;

[2] to have waited thereafter to see what media coverage of the verdicts would occur; it being practically certain that there would be a deal of such coverage, and that it was all too likely that the coverage, or most of it, would be apt to inflame precisely those emotions which Ipp AJA describes in his judgment on the section 5F application: see at 128 A Crim R 431 at pars. 19 and 20; and

91 It is only fair to acknowledge, as I do, that his Honour was never presented on or after 5 June with a simple application for such a brief adjournment pending the return of the verdicts in the first trial. And I acknowledge that the Crown Prosecutor did not assist his Honour by reminding him that such a brief adjournment was an available option. I think, even so, that his Honour ought to have considered of his own motion the expedient, at once obvious, simple and practical, of such an adjournment. Whether the failure to do so brought about a miscarriage of justice depends upon the adjudication of the particular conviction appeal grounds.

92 Secondly, I draw attention to the imperative need to allow properly for the factor of media coverage whenever a series of related trials, - and especially a series of certainly sensational sexual offence trials, - is being arranged.

93 I accept as of course that, as McHugh J puts the point in Gilbert v The Queen [2000] 201 CLR 414 at 425(31):

Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.

94 That bald proposition does not detract, however, from cognate propositions which can be taken conveniently from the judgment of Brennan J in The Queen v Glennon [1992] 173 CLR 592 at 611, 612:

Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure. The image of some media personalities as informers of the public and moulders of public opinion is assiduously cultivated. When the belief is held that the public interest is served by publication of observations and opinions by media personalities on topics of contemporary relevance, publication may not always be restrained by the need to allow a fair trial for a person charged with the commission of crimes that have attracted public attention. ………………..

The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society. Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited.

95 So much is recognised, in my opinion, by the former section 119, (the current section 292), of the Criminal Procedure Act. It is true that section 119(2) gives to the Crown Prosecutor or to the accused in any particular case a statutory, and peremptory, veto over the use of the curial power that is conferred by section 119 (1). That power is, nevertheless, there to be used; and when a Judge comes to try a case which is one in a series of connected, sensational sexual offence cases; or to organise a connected series of hearings of those cases, then serious consideration ought to be given as a matter of course to the prudent but resolute use of that power.

96 It should be kept in mind in that connection that such a use of the statutory power would not entail, very exceptional cases apart, any permanent suppression of the responsible reporting of facts for the public information. What it would entail is that sensational coverage of one trial would not carry an unacceptable risk of compromising the integrity of later and closely related trials.

97 I turn to the particular conviction appeal grounds.

Ground 1

98 I agree with Judge Finnane that the formal taking of the verdicts of the jury in the first trial was “a part” of the trial “proceeding”. I agree, therefore, with his Honour’s conclusion that he had, in principle, power pursuant to section 118 of the then current Criminal Procedure Act to hold that part of the first trial in camera.

99 To have made such an order would have had, of itself, very little utility in ensuring that the content of the verdicts in the first trial did not find their way into the public domain until, at least, the conclusion of the appellant’s separate trial.

100 The real problem for Judge Finnane was not concerned with who was present to see and hear the return of their verdicts by the jury. The real problem was how to suppress publication outside the Courtroom of the content of the verdicts. The then current section 119 of the Criminal Procedure Act gave no assistance, bearing as it does only with publication of “the evidence tendered in the proceedings”.

101 The argument which proceeded before Judge Finnane does not appear to have taken account at all of the requirement of section 55E of the Jury Act 1977 (NSW) that: “(t)he jury shall be discharged immediately after delivering their verdict”. No doubt the Judge, having taken the verdicts in camera, and having thereupon immediately discharged the jury, could have exhorted the jury not to divulge to anybody outside the Courtroom the content of the verdicts; but I see no practical sanction that his Honour could have put in place in order to compel compliance with such an exhortation. That means, in sensible and practical terms, that the content of the verdicts was effectively in the public domain from the moment at which the discharged jurors left the Courtroom.

102 I can see no other power that was available to Judge Finnane to suppress publication either of the fact that verdicts had been returned by the jury, or the content of those verdicts. Indeed, any accused, if found not guilty of any particular charge, was entitled to immediate public vindication to that extent.

103 The Judge’s refusal of the application made to him entailed the exercise of a judicial discretion. This Court is not entitled to interfere lightly with such a discretionary decision. The only bases, in point of legal principle, upon which this Court would be entitled to interfere at all are few and circumscribed: House v The King [1936] 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504, 505.

104 Applying those principles to Judge Finnane’s decision, I am unpersuaded that his Honour’s decision was not reasonably open to him.

105 Ground 1, therefore, fails.

Ground 2 and Ground 3

106 The written submissions of the appellant group these two grounds, and I, too, shall deal with them together.

107 It is convenient to begin by quoting paragraph 54 of those written submissions. That paragraph puts clearly and succinctly the thrust of the appellant’s case:

The appellant’s principal contention is that the sensational and widespread publicity generated during the critical period of the appellant’s trial caused a miscarriage of justice. The effect of that publicity was to set at nought and undermine the Court of Criminal Appeal’s decision to grant the appellant a separate trial. Indeed, the appellant’s position was worse than if he had been tried jointly with the offenders at the first trial.

108 That submission is developed in succeeding sections of the written submissions. It is there contended that Judge Finnane erred in deciding not to discharge the jury and to postpone for some appropriate period a resumed trial of the appellant. Attention is drawn to particular newspaper reports.

109 At the hearing of the present appeal the Court received affidavit evidence from the appellant’s solicitor. That evidence laid out in the form of transcripts produced on subpoena by various media organisations, a fuller picture than had been placed before Judge Finnane of the overall scope and content of media coverage of the return of verdicts in the first trial.

110 No doubt reasonable minds might differ about the quality and the utility, from the point of view of relevant public interest and information, of much of that media material.

111 Some of the material is simply crude: as for example the comment of one radio commentator: “And I do hope they throw the absolutely (sic) book at these mongrels” or, from another radio personality: “…….. the perpetrators of this hideous crime, who are loathsome bastards”; or, finally and from yet a further radio personality: “Now these four hooligans, louts, low-life, scum, vermin, call them what you would, cannot be named, right?”.

112 Some of the material might be thought mawkish. Some of it might be thought over-wrought. The greater part of it, when read in bulk, tends to inflame precisely the passions which were identified prospectively by Ipp AJA in the section 5F application. As Ipp AJA said:

The details of the offences are likely to arouse extremely hostile feelings against these persons. The common ethnicity of the offenders could well give rise to generalised feelings of disgust and anger.

113 I pause to note that the media transcripts indicate that the Crown Prosecutor in the first trial was heard both on radio and on television to say: “I commend the quality of the police investigation and the fortitude of the victim”. It is not entirely clear from the television transcripts whether the Crown Prosecutor actually spoke to camera, but it seems to be a fair inference that such was the case.

114 For my own part, I would wish to say plainly that in my opinion a Crown Prosecutor ought never to make to the media any public comment about a trial which he or she has prosecuted; and that I understand that principle to have been, hitherto, well established. The reason for the principle lies in the unique role of the Crown Prosecutor in ensuring that the machinery of criminal justice functions with a proper objectivity and impartiality.

115 All of the foregoing considerations tend to a conclusion that Judge Finnane should have held to his Honour’s initial, and visceral, feeling that the jury ought to be discharged. It does not follow, however, that by not doing so his Honour fell into error such as requires the quashing of the appellant’s convictions. The reason why that does not follow is explained by Gibbs ACJ in Maric v The Queen (1978) 52 ALJR 631 at 634, 635:

However in my opinion it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction. In those circumstances, I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally, …… .

116 So to focus the present appeal raises, necessarily, the need to bear in mind the statutory limitations upon the power of this Court to quash a conviction based upon a jury’s verdict of guilt. Those limitations are prescribed by section 6(1) of the Criminal Appeal Act:

The court on any appeal ……….. against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; …………….. .

117 It is not contended by the present appellant that his case comes within the first of those three statutory categories. Neither does the appellant’s case really come within the second of those categories. Judge Finnane’s decision did not call for a decision, in the strict sense, of any question of law. What the applicant is really contending is that there was a miscarriage of justice.

118 In the context of the present appeal, a contention that the appellant’s convictions manifest a miscarriage of justice propounds in essence that the refusal of the discharge applications caused the subsequent trial of the appellant to miscarry by entailing “that he may thereby have lost a chance which was fairly open to him of being acquitted”: Mraz v The Queen [1955] 93 CLR 493 per Fullagar J at 514.

119 The onus of proving that proposition rests upon the appellant, as explained in Driscoll v The Queen [1977] 137 CLR 517 per Barwick CJ at 526.

120 The Crown case against the appellant, and the evidence of the complainant upon which that case principally depended, was that the appellant had raped the complainant in a particular way, at a particular time and place, and in company with others, including other and prior assailants. The appellant’s case was that he had been present with the others at the alleged time and place, but that he had neither raped nor otherwise assaulted the complainant; and that he had not been, in the requisite legal sense, party to a joint criminal enterprise having as its objective the detention and rape of the complainant.

121 The chance of acquittal that was fairly open to the appellant was, essentially, that the jury, having seen, heard and assessed the evidence of the complainant and his own contradictory evidence, would conclude that there remained a reasonable possibility that his version was correct. The jury, plainly, accepted the complainant’s evidence and rejected the contrary evidence of the appellant.

122 It follows that the appellant’s present argument must be that he lost that fair chance of acquittal because the refusal to discharge the jury entailed that the assessment of the competing cases was made by jurors whose fairness and objectivity had been subverted by the media coverage of which the appellant now complains.

123 There are in my opinion two flaws in this argument.

124 First: there being no submission that the verdicts cannot be supported reasonably on the evidence, the argument itself entails, not the drawing of a rational inference from facts admitted or proved, but giving effect to unsubstantiated speculation.

125 Secondly: the argument does not give due weight to his Honour’s instructions to the jury.

126 On 6 June, immediately after the jury had been empanelled, his Honour gave the usual practical advice and directions. They included these directions:

The only evidence that you are entitled to consider is the evidence in this Court. From time to time people write articles and express views and run segments on television shows about matters concerning sexual offences. 60 Minutes for example ran one last Sunday night, but nothing that is said on those shows is evidence in this Court. The opinions expressed about people in those shows is not evidence in this Court.

Some people spend hours a day looking on the Internet on computers and you get thousands of articles on all manner of things. Again nothing that is said on the Internet is evidence in this Court. So you must not go and seek to do your own research outside the Court. The evidence you have to decide on is what is presented in this court and nothing else. That means you do not do your own independent research. You do not look up books, encyclopaedias and computers and most particularly you do not bring computer material or computers themselves into a jury room.

127 On 12 June, having refused the first discharge application, his Honour gave these directions:

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 got 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.

The accused is entitled to a presumption of innocence. The only thing that is important is the evidence of the complainant and other Crown evidence in this case. Until he is convicted he is deemed to be innocent in law. So that is an important matter. As I said to you before, if it were otherwise we would be in a very difficult situation. People could be convicted based on what is not just in court but by rumours and hearsay and newspaper reports of other things and people of general views and so on. It is what is here and nothing else that counts.

128 No objection was taken to the direction and no additional directions were sought.

129 On 13 June, having refused the second discharge application, his Honour gave these directions:

Before we go any further, you will recall yesterday I said to you not to take any notice of anything apart from the evidence in this case, in particular if comments are made in newspapers and other organs of publicity to ignore them.

Well, I have to say that I’ve got to say something to you now about that. You may recall that in the Crown Prosecutor’s opening, reference was made to a letter, or rather torn pages from a diary. The Crown case is that the accused TS wrote in his own handwriting in that diary, which was sent to one of the co-accused – that is, when I say the co-accused, one of the persons who have been identified in this Court by way of a photograph. There is, of course, no other person accused with him.

The Crown Prosecutor opened to you and said in that diary he wrote to this friend of his and said, among other things, that he was going to get two Samoan women to go around, two Samoan girls to go to her house and tell her to drop the charges or else she’d get bashed.

What the Crown Prosecutor did not make plain at this particular point, and what has been made plain to me this morning in your absence, is the Crown case does not involve any suggestion that the accused in fact arranged for anybody to go to the complainant’s house and bash her. There will be no evidence to suggest that, and in fact – she will be here – but I think it is the common accepted position that no one turned up and threatened to bash her. But he boasted of this – this is the Crown case – he boasted of doing this, and that shows him to have a knowledge of her.

The Crown case would be, as I understand it, that he had denied having any knowledge of her; and making a boast that he is going to get someone to go and deal with her shows that he does have a knowledge of her.

Now that’s going to be the significance of the letter. When it’s tendered, you will see it’s handwritten, or the three page document is handwritten, it’s a bit difficult to read, and there are what could be called spelling mistakes; the word “Samoan” is not spelt correctly and there are other spelling errors.

Now everybody is entitled to listen to the Crown Prosecutor’s opening. There were journalists listening to it and members of the public listening to it. Now what happened is that today, in The Telegraph and The Herald, there’s been a publication of the Crown Prosecutor’s opening, a summary of it, and it’s been published in the newspapers. What has occurred is that the journalists reporting the matter have wrongly assumed that in fact the accused man was part of some plot to go and bash the complainant, or he’d in fact organised someone to go and threaten her. That has come about because they interpreted the Crown Prosecutor’s words to mean that. In fact there will be no evidence to suggest anything of the kind.

And in The Herald there’s a sort of little piece of artistic licence where there’s a torn out – what looks like a photograph of a torn out page; and there’s some typed words in inverted commas on this torn out page. Well, when you come to see the pages, members of the jury, you will see that there’s no typed words in inverted commas. These are handwritten, scrawly sort of words on diary pages.

Also in the letter the spellings are different of some significant words, and there are a number of other things that are different.

Now what you’ve got to do is take no notice of these headlines. All that is basically a comment by a journalist about the effect of some evidence.

Now the evidence is not yet before you. All you have heard is the Crown Prosecutor’s opening. But there will be no evidence of any plot to bash this young woman, no Samoan women sent to intimidate her.

So what I’m saying is, you may have read the newspapers. If you do, just ignore that headline. And when you look at the representation of a torn page in The Herald article – if you read the Herald – well, you will get the actual pages before you, and they won’t be typed with inverted commas around particular words, they will be actual handwritten pages. So that’s what you’ve got to look at; what’s there before you.

Now from time to time in the trial there may be other comments that people make. People sit in Court and they can listen. The press are free in this country. They’re free to be right and they’re free to be wrong, and sometimes they are wrong. But if they have a comment or they have a view, they are entitled to express their view. But you should ignore it, just treat it as a matter of interest in passing, something that’s gone on in the trial, and concentrate on the actual evidence before you. That’s the only matter before you that counts.

130 No objection was taken to the directions and no additional directions were sought.

131 On 26 June, and at an early point in the summing-up, His Honour gave these directions:

The next thing I have got to say is this. It has been mentioned before, you have got to decide this case without emotion and without partiality. That is you might be sorry for …(the complainant) …. You might feel sorry for the accused. He is young after all, 17 or whatever he is, but you have got to put out of your head and it is really not a question of whether you are sorry for someone. The question is was a crime committed and if it was the person who did it should be convicted. Then the law will visit, through me, through my judgment, an appropriate punishment. If the person concerned did not do it, then he should be found not guilty. It should not be decided on the bases of sympathy or dislike for that matter.

Now, the accused alone is on trial in this Court. You can bring in a verdict against him. The fact that other people have committed violent rapes and have been dealt with elsewhere in other proceedings, as you have heard, is not a basis for some sort of – as Mr. Wasilenia said – one in, all in approach. You have got to decide is there evidence against him? However, the evidence against him does occur in the context of a case where four men, or rather three men undoubtedly had sexual intercourse with the complainant against her will, one of them twice. The question is, as I see it, the way Mr. Wasilenia has put it, was the accused the fourth man?

In the course of the Crown case she has given evidence of the people preceding him saying things which are pretty unpleasant things. One of them, I think the first one suggests after pushing her up against a wall, he was going to have sex with her Leb style.

Members of the jury, that does not appear to be contradicted, that is what he said. Nor is it a matter of doubt, that is the young man before the Court is a person who by racial origin is Lebanese. However, he is a citizen of this country, just as you are and just as I am. He is entitled to a fair trial and fair verdicts regardless of that fact. Regardless of what people might have said or done or claims about styles or doing things. He is entitled to a fair go. You should dismiss from your mind any suggestion that he is to be given less than a fair go because he come from some group of people in the Lebanese community. You may have met people who are Lebanese that you like. You may have met people that are Lebanese who you do not like. You may have met young people that you like and young people that you do not like, but it would be totally wrong to take that into account in determining what you find in this case.

You have to decide totally impartially as if, in fact, his name was Smith or Jones or O’Brien or some other very common ordinary name, and nothing was known about where he came from in particular. It really would not matter if this was a group of people, one of a group of five people. Totally different group in our society, he is entitled to exactly the same judgment. No-one gets a different judgment because of a particular group they are in. Please bear that in mind.

132 No objection was taken to these directions and no additional directions were sought.

133 At the conclusion of the summing-up, the appellant’s trial counsel asked only for directions about the presumption of innocence. They were given promptly and fully, and no complaint was, or is, made about them.

134 In all of the foregoing circumstances, I am unpersuaded that either or both of the refusals to discharge the jury brought about a situation in which the appellant was deprived of a chance fairly open to him of acquittal; or that the appellant lost otherwise such a chance of acquittal.

135 I reject, therefore, grounds 2 and 3.

Ground 4

136 This ground was added by leave at the hearing of the appeal. It is based upon a proposition that at some time after 12 April 2002, when the order was made for the appellant’s separate trial, but before 5 June 2002 when that trial was in the list for hearing, Mr. Wasilenia had made an application “to set a later trial date”.

137 There is, to say the least, a lack of specificity about this application. That is no criticism of Mr. Wasilenia, who gave evidence before this Court on 22 October 2003, and as I understand the fact on fairly short notice; and who was being asked to recall events which were some 18 months old and as to which neither he nor his then instructing solicitor had contemporaneous notes. There was no transcript of the suggested application.

138 Mr. Wasilenia when cross-examined gave this evidence:

Q. Was it an actual application or was it just an exchange between yourself and the bench?

A. As far as I recall, it was an exchange in the sense that all of these mentions were in effect – well, kitchen meetings about case management.

Q. You are not sure whether or not there was a court reporter present during this exchange?

A. No.

Q. So you wouldn’t put it as highly as a formal application, would you?

A. Certainly not.

139 In re-examination Mr. Wasilenia added:

Q. You say you did not make a formal application ---

A. No.

Q. --- which you elaborated as being one made by way of notice of motion. How do you characterise what you did in fact request of his Honour?

A. A request.

140 It was Mr. Wasilenia’s evidence-in-chief that this “request” was refused for stated reasons which Mr. Wasilenia paraphrased thus:

Q. Did his Honour give any reasons in refusing the application?

A. Yes, odd ones and that’s why it sticks in my mind. His Honour indicated that he would not allow a late trial date because he wanted all the matters – that is the trial matters – finalised before September, as his Honour was going to be away. I don’t recall if he was going to be away on holidays or on circuit, but his Honour was going to be away. I do recall that his Honour added – and I’m assuming it must have been because I raised it – that there were going to be persons sentenced from a preceding group of trials about that time and so that – if I could put it this way – prejudicial publicity would not be avoided by having a later trial.

141 The Crown, in oral submissions, put that there is a threshold issue “as to whether an application was ever made”. Counsel appearing for the appellant in this Court did not contend otherwise; and accepted that were the Court against him on that issue, then Ground 4 could not succeed.

142 I think that the imprecision of the available evidence is such that the Crown’s threshold point should be upheld.

143 Ground 4, therefore fails.

The Application for Leave to Appeal against the Sentences

144 I shall consider first the submission that his Honour gave inadequate weight to the youth of the appellant.

145 The appellant was born on 18 February 1984. He was, therefore, aged about 16-1/2 years when he committed the offences. He was aged 18 years and about 7 months when he stood for sentence. He is now aged about 20 years.

146 The youth of an offender is always a matter to be taken into account in connection with his sentencing. But it must be taken into account in a properly principled way. As Hunt CJ at CL pointed out in Reg. v Gordon [1994] 71 A Crim R 459 at 469:

…………. General deterrence remains of primary importance and, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth ……………

147 Judge Finnane found, as part of his Honour’s sentencing exercise, that the appellant had in fact raped the complainant, having detained her for that purpose; and that he had done so as part of a joint criminal enterprise in which he was then participating. No present complaint is made about those findings.

148 The objective criminality of such conduct is so great that youth, although remaining a legitimate factor for consideration, cannot properly be permitted to displace, because of some misguided sympathy, the manifest need for condign punishment.

149 I see no basis for holding that his Honour erred in the manner submitted by the appellant.

150 The remaining ground is that the sentences passed are manifestly excessive.

151 No particular complaint is made about the learned sentencing Judge’s analysis of the material facts, both objective and subjective.

152 That being so, I am wholly unpersuaded that there is any manifest excess in either of the two sentences. For crimes of the enormity of these crimes, a head sentence standing at 75% of the statutory maximum for the section 61J offence; and at 25% of the statutory maximum for the section 90A offence; both sentences being made wholly concurrent, cannot reasonably be characterised as manifestly excessive when the relevant objective and subjective factors have been fairly balanced. In fixing non-parole periods his Honour found special circumstances. He was entitled to do so. The ensuing variations in the normal non-parole periods are, in my opinion, fair.

Orders

153 For the whole of the foregoing reasons, I would order:

[1] that the appeals against conviction be dismissed;

[2] that the application for leave to appeal against sentence be granted;

[3] that the appeals against sentence be dismissed.

**********

Last Modified: 08/27/2013

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