Re K [2002] NSWCCA 374

Re K [2002] NSWCCA 374

The trial judge erred in treating a stay as inappropriate unless the prejudice was directed specifically at the accused. Given the extensive media coverage and public outrage about similar sexual assault trials involving youths of Lebanese origin in the same part of Sydney, there was a real and unacceptable risk that the appellant, who shared relevant characteristics and faced a like charge, might be prejudiced and not receive a fair trial if tried immediately. The interests of justice required a short temporary stay.

Jurisdiction
Australia
Judgment Date
03 September 2002
Procedural Posture
Criminal Application for Leave to Appeal and Appeal From Refusal to Vacate Trial Date and Temporarily Stay Proceedings / Court of Criminal Appeal; Leave Application Heard Concurrently With Appeal Before Trial
Outcome
Leave to appeal granted; appeal allowed; temporary stay ordered.
Legal Topics
['temporary Stay of Criminal Trial' 'fair Trial' 'pre Trial Publicity' 'risk of Prejudice' 'interests of Justice' 'appellate Intervention']
['criminal Law' 'criminal Procedure'] ['temporary Stay of Criminal Trial' 'fair Trial' 'pre Trial Publicity' 'risk of Prejudice' 'interests of Justice' 'appellate Intervention']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal and Appeal From Refusal to Vacate Trial Date and Temporarily Stay Proceedings / Court of Criminal Appeal; Leave Application Heard Concurrently With Appeal Before Trial

Legal Issues

  1. 1 ['Whether the trial judge erred in refusing to vacate the trial date and temporarily stay the proceedings.' 'Whether, before trial, the applicable test was whether the interests of justice required a stay because of a risk of prejudice to a fair trial arising from extensive media publicity.' 'Whether prejudice must be directed specifically to the accused before a temporary stay can be granted.' 'Whether the Court should exercise its own discretion to grant a temporary stay.']

Ratio Decidendi

The trial judge erred in treating a stay as inappropriate unless the prejudice was directed specifically at the accused. Given the extensive media coverage and public outrage about similar sexual assault trials involving youths of Lebanese origin in the same part of Sydney, there was a real and unacceptable risk that the appellant, who shared relevant characteristics and faced a like charge, might be prejudiced and not receive a fair trial if tried immediately. The interests of justice required a short temporary stay.

Court Disposition

Leave to appeal granted; appeal allowed; temporary stay ordered.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Order of the trial judge refusing the application for a temporary stay is set aside.' 'The trial of the appellant is stayed temporarily.' 'The matter is to be re-listed before the Registrar of the District Court with a view to fixing a trial date not before the conclusion...