TS v R

Case [2022] NSWCCA 222 12 October 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TS v R [2022] NSWCCA 222
Hearing dates: 29, 30 June 2022
Date of orders: 12 October 2022
Decision date: 12 October 2022
Before: Basten AJA at [1];
Fullerton and Garling JJ at [298]
Decision:
(1)   Subject to order (2), refuse the applicant an extension of time within which to appeal from his convictions following verdicts of guilty returned on 18 July 2017.
(2)   With respect to grounds 1, 1A and 2(iv),
   (a)   extend time to appeal from the convictions to 14 December 2020,
   (b)   grant leave to appeal, and
   (c)   dismiss the appeal.
(3)   With respect to the aggregate sentence imposed in the District Court on 22 November 2017:
   (a)   grant the applicant leave to appeal, and
   (b)   dismiss the appeal.

Catchwords:
CRIME – appeal against convictions and sentence for multiple sexual offences – extension of time in which to appeal – notice of appeal lodged more than three years after trial and sentencing – 35 proposed grounds of appeal – extension of time and leave granted for limited grounds as to convictions
CRIME – appeal against convictions – miscarriage of justice – apprehension of bias of judge – trial by jury – judge’s language or conduct only relevant if in presence of jury – reference to “grooming” – whether reasonable juror might have apprehended judge might have formed opinion as to guilt of accused – self-represented accused – judge not expressing fixed view that accused groomed complainant – judge’s clarification and reformulation of accused’s questions in cross-examination of complainant
CRIME – appeal against convictions – miscarriage of justice – procedural unfairness – self-represented accused – duty of trial judge to ensure fair trial – refusal of adjournment – role of trial judge to inform but not advise accused – advice as to right to object to evidence not extended to legal advice as to basis of objection to particular evidence – judge not obliged to interfere with prosecution address unless risk of miscarriage
CRIME – appeal against convictions – unreasonable verdicts – finding that victims were sedated – compelling video evidence of state of complainant during abusive conduct – expert evidence supporting inference of sedation – no basis to doubt truthfulness and reliability of witness – accused admitted to performing sexual acts on complainant
CRIME – appeal against sentence – aggregate sentence – errors in indicating sentences for individual offences – error in considering inapplicable standard non-parole period – factual error affecting culpability of offender – re-sentencing discretion engaged
CRIME – appeal against sentence – re-sentence – serious sexual abuse of stepdaughter – offending persistent and regular over four years – sedation of victim and victim’s mother – offending video recorded for sexual gratification – late guilty pleas to video-recorded sexual assaults – convictions following trial on other offences – reflecting discounts for pleas in aggregate sentence – no arithmetical calculation for utilitarian discount – applicant’s health conditions considered – lesser aggregate sentence not warranted

Legislation…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading TS v R

Details

AGLC: TS v R [2022] NSWCCA 222
Case: [2022] NSWCCA 222
Decision Date: 12 October 2022

CaseChat Overview and Summary

The appellant, TS, appealed against his convictions and sentence for multiple sexual offences against his stepdaughter. The appeal was heard by the High Court of Australia. TS's trial and sentencing occurred over three years prior to the notice of appeal being lodged, despite 35 grounds of appeal being proposed. The court had to decide whether to grant an extension of time for the appeal to proceed and, if so, on which grounds. Additionally, the court examined whether the trial judge's conduct could be considered as an apprehension of bias, whether the trial was procedurally fair, and if the convictions were unreasonable given the evidence presented.

The court found that the extension of time and leave to appeal should be granted for specific grounds, primarily concerning the apprehension of bias and procedural fairness. The court held that the judge's language and conduct, including the use of the term "grooming," did not create a reasonable apprehension of bias. However, the court acknowledged that the judge's reformulation of questions during cross-examination might have influenced the trial's fairness. The court determined that the trial judge had a duty to ensure a fair trial, but the refusal of an adjournment did not constitute a miscarriage of justice, as the judge's role was to inform rather than advise the appellant on legal matters.

Furthermore, the court rejected the argument that the verdicts were unreasonable, finding that the evidence, including compelling video footage and expert testimony, supported the conclusion that the victims were sedated during the abuse. The court also found no errors in the arithmetic of the aggregate sentence but acknowledged a factual error in considering a non-parole period that was inapplicable. This error affected the culpability of the offender, warranting re-sentencing. The court considered the nature of the offences, including the persistent and regular abuse over four years, the sedation of the victim and her mother, and the recording of the abuse for sexual gratification. After considering the appellant's health conditions and the discounts for his late guilty pleas, the court decided that a lesser aggregate sentence was not warranted.

The final orders of the court were to grant leave to appeal on limited grounds, dismiss the appeal as to the convictions, and remit the matter to the Court of Appeal for re-sentencing.

Orders