Regina v Geoghegan [1999] NSWCCA 20

New South Wales Court of Criminal Appeal CITATION : Regina v Geoghegan [1999] NSWCCA 20 revised - 04/03/99 FILE NUMBER(S) : CCA 60513/98 HEARING DATE(S) : 1 March 1999 JUDGMENT DATE : 1 March 1999

PARTIES : Regina v Ian Anthony Geoghegan JUDGMENT OF : Grove J at 1; Dunford J at 8; Greg James J at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/2134 LOWER COURT JUDICIAL OFFICER : O'Reilly DCJ

COUNSEL : B.A. Caffery (Applicant) L.M.B. Lampratti (Crown) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal Law and Procedure -; Permanent stay of prosecution -; Refused in District Court -; No error or miscarriage of discretion DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL

GROVE J DUNFORD J GREG JAMES J

Monday 1 March 1999

REGINA v IAN ANTHONY GEOGHEGAN

JUDGMENT 1 GROVE J: This is an application for leave to appeal pursuant to section 5F of the Criminal Appeal Act. The judgment under challenge was delivered by his Honour Judge O'Reilly QC in the District Court at Liverpool on 28 August 1998. On that occasion his Honour declined to make an order permanently staying the prosecution of the applicant. The intended indictment against the applicant relates to offences of a sexual nature asserted to have been committed some 34 to 38 years ago. It is self evident that that is a long time ago and, as Judge O'Reilly observed, the period itself is quite startling. 2 Reference was made to the circumstance that the offences were detected not as a result of complaint from the alleged victim, but as a result of information being communicated to police through what is called Operation Paradox. Those matters are stated merely to give background to this application. The application has been sought to be supported by extensive written submissions prepared by counsel. I regret to say that it is perceptible that those submissions have not focussed upon the real issue for determination by this court. 3 In oral submission in elaboration of the written material counsel has frequently and even repeatedly referred to the long period of time since the alleged commission of the offences. Reference was made to the evident circumstances that preparation of a defence case might be inhibited by reason of the long passage of time and the difficulty in locating potential witnesses or the like. That is a not uncommon concomitant of occasions when charges are brought after many years. Nevertheless, it is plain, as counsel ultimately conceded, that it is not for this court to establish some form of arbitrary limitation upon the prosecution of crime. 4 In submission various terms of hyperbole were used and the pursuit of the prosecution after this period of time was described as a disgrace, a travesty, a shame and other epithets. As Judge O'Reilly observed, the jurisdiction to order permanent stay of prosecution is one to be exercised where it can be shown that the proposed trial will inevitably be unfair. That is quite different from the exercise of power by an appellate court looking at a trial with hindsight to see whether or not it was in fact unfair. I would wish to record that I perceive no error at all in the approach manifest by his Honour Judge O'Reilly or in the reasons which he has given. On the basis of the circumstances as elaborated and set out in the material advanced by the applicant, I would add that I would for myself undoubtedly have reached the same conclusion as his Honour. 5 I have not yet made reference to the additional circumstance that part of the crown case, it appears, will be the tender of certain admissions made by the applicant in interviews conducted relatively recently. It suffices for present purposes to observe that admissions (apparently recorded on video and sound tape) include that it was the fact that on occasions he fondled the penis of the complainant when the latter was aged about 14 or 15 years and that there was conduct between them which I do not need to detail, giving rise to a charge of buggery. 6 Counsel has vigorously asserted that these admissions are relevant only to a fifth count which was added to the indictment ex officio. It is not necessary or appropriate presently to analyse the time frame of the alleged offences. Much of the argument, written and oral, failed to recognize the distinction between matters which may be argued in support of objection at trial and the jurisdiction, sparingly to be exercised, to restrain a trial taking place at all. It is unlikely to be germane to the latter to seek to demonstrate the prospect, even the substantial prospect, of objections being upheld. As I have indicated, the jurisdiction of this court is to intervene in the event that a case can be demonstrated for granting leave to appeal against the exercise of discretionary judgment by his Honour Judge O'Reilly. In response to a question from the bench, counsel adhered to a proposition that his submission could be summarised as an assertion that on the face of his judgment Judge O'Reilly could be assessed as being manifestly wrong. As I have said, I perceive no error on the part of Judge O'Reilly and I remark that in my judgment his judgment has every appearance of correctness. 7 This application is, I regret to say, quite misconceived. There is no basis for this court to hold that there is error in the District Court judgment. I would therefore propose that leave to appeal be refused. 8 DUNFORD J: I agree. 9 GREG JAMES J: For my part, I agree and share what his Honour the presiding Judge has said about his own views of the judgment below, these being views I share also. 10 GROVE J: The order of the court therefore is application for leave to appeal is refused.