New South Wales Court of Criminal Appeal CITATION : R. v Maxwell Raymond BARRY [1999] NSWCCA 453 FILE NUMBER(S) : CCA 60118/99 HEARING DATE(S) : 17.09.99 JUDGMENT DATE : 17 September 1999 PARTIES : Regina v Maxwell Raymond BARRY JUDGMENT OF : Newman J at 11 & 13; Studdert J at 12; Foster AJ at 1-10 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0197 LOWER COURT JUDICIAL OFFICER : Flannery DCJ COUNSEL : D A Wetmore for the Applicant P G Berman for the Crown SOLICITORS : Crichton-Brownes for the Applicant S E O'Connor for the Crown CATCHWORDS : Leave to appeal against interlocutory judgment.; Homosexual intercourse with a male above the age of ten years and under the age of eighteen years. ACTS CITED : Crimes Act 1900, 1912 R v Matovski (1989) 15 NSWLR 720 CASES CITED: R v Ho CCA unreported 18 7.94 Mahoney JA Walter v Gardiner (1992-93) 177 CLR 378 at 393 Jago v District Court (1989) 18 CLR 23 DECISION : Leave to appeal refused. IN THE COURT OF CRIMINAL APPEAL No 60118/99 NEWMAN J STUDDERT J FOSTER AJ Friday, 17 September, 1999 REGINA -V- MAXWELL RAYMOND BARRY JUDGMENT 1 FOSTER AJ: This is an application for leave to appeal against an interlocutory judgment given in the District Court by his Honour Judge Flannery QC on 9 March 1999. His Honour refused the application by the present applicant that his prosecution be permanently stayed in respect of two counts in the proposed indictment against him. These are that between 16 October 1985 and 9 September 1986 at Brighton-le-Sands in this State he had homosexual intercourse with one Eric Taylor, a male above the age of ten years and under the age of eighteen years, namely sixteen or seventeen years. The two counts are in identical terms. 2 The application is brought under s. 5F(3) of the Criminal Appeal Act 1912 which, relevantly, requires that the Court grant leave (R. v Matovski (1989) 15 NSWLR 720). It has been held that such leave should not readily be granted (R. v Ho CCA unreported 18 July 1994 per Mahoney JA at 4.) 3 The appeal sought to be brought is against an interlocutory and discretionary decision. It cannot be conducted as a re-hearing. The appellant must persuade the Court that error has occurred in the judgment appealed from such as a failure to apply proper legal principles, a failure to take into account relevant matters or the taking into account of irrelevant matters or making findings of fact that were not open. There can be no suggestion that his Honour erred in principle. He clearly applied the relevant principles relating to permanent stays. He asked himself whether it was demonstrated to him that the proceedings were "foredoomed to fail" (per Mason CJ, Dane and Dawson JJ in Walter v Gardiner (1992-93) 177 CLR 378 at 393). He also took into account that a stay could be granted only in most exceptional circumstances (Jago v District Court (1989) 18 CLR 23 per Deane J at 60.) 4 His Honour found that the proceedings were not foredoomed to failure. He did so after considering the evidence placed before him and hearing argument. His finding was essentially one of facts. The appeal cannot involve a re-hearing of the facts. It can succeed only if it is demonstrated that it was simply not open to his Honour to find other than that the prosecution would inevitably fail. 5 It was submitted to his Honour that the prosecution would inevitably fail to establish that the complainant, Eric Taylor, was not below the age of eighteen years at the time of the alleged offences. Imprecision in his evidence as to relevant dates was relied upon and this Court has been taken in written submissions to examples of the alleged imprecision and has considered them. The complainant was born on 10 September 1968. The terminal date for the charges laid is 9 September 1986, the day before he attained the age of eighteen years. The period in which it is alleged that the two offences occurred was one in which he was therefore below the age of eighteen. 6 The submissions made to his Honour were to the effect that the evidence of the complainant was not such as to be capable of satisfying a jury beyond reasonable doubt that the offences in fact occurred before he attained that age. However, as is pointed out in the judgment against which the appeal is sought to be brought, there was other evidence which could corroborate the prosecution case in this regard. The complainant's evidence was to the effect that the offences occurred at the accused's residence at Brighton-le-Sands. There was independent evidence that the accused was living at Brighton-le-Sands in the relevant period and beyond that period. There is also evidence available that the complainant has maintained that the acts of intercourse between him and the accused did not occur after his eighteenth birthday. A combination of those two factual matters provided, in his Honour's view, corroborating evidence and produced the result that the difficulty apparent in the complainant's evidence did not warrant a finding on his part that the prosecution was bound to fail. In my opinion this finding was entirely open to his Honour on the material before him. 7 A second submission was made to his Honour and has been repeated before us in written submissions, to the effect that a jury would not be able to decide as to whether s 79 or s 78K of the Crimes Act 1900 was the appropriate section upon which it was to deliberate. Section 79 prescribed "The abominable crime of buggery". After 7 June 1984 s 78K came into effect and the offence of homosexual intercourse with a person under eighteen was created. The date when the accused moved into the Brighton-le-Sands premises, according to evidence apparently available to the Crown, was at least after 16 October 1985. This appears from evidence available from the Rental Bond Board, so that apparently the charges would properly fall under s 78K. 8 Even if some evidence were to be adduced which suggested that the offences occurred earlier than 8 June 1984 I for my part am satisfied that any confusion in this regard could be cleared up by appropriate directions given at the trial. 9 These considerations certainly do not lead to any conclusion that the prosecution was doomed to failure. 10 I can see, for my part, no prospect of any relevant error in his Honour's decision being demonstrated. In those circumstances I propose that leave to appeal be refused. 11 NEWMAN J: I agree. 12 STUDDERT J: I also agree. 13 NEWMAN J: The order will be as proposed by my brother Foster. 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