Geoffrey William LEONARD v REGINA - [2007] NSWCCA 197

Appeal Outcome: Special leave application dismissed by the High Court - 24 April 2008

New South Wales

Court of Criminal Appeal

CITATION: Geoffrey William LEONARD v REGINA [2007] NSWCCA 197

HEARING DATE(S): 29 June 2007

JUDGMENT DATE:
3 July 2007

JUDGMENT OF: Spigelman CJ at 1; James J at 33; Hislop J at 34

DECISION: Leave to appeal refused

CATCHWORDS: APPEAL – Appeal from pre-trial interlocutory proceedings – discretionary judgment of the judge below not to stay proceedings – no error in the exercise of discretion - CONSTITUTIONAL LAW – Operation and effect of the Commonwealth Constitution – Restrictions on Commonwealth and State legislation – rights and freedoms implied in the Commonwealth Constitution – freedom of political communication – s474.22 of the Criminal Code does not place an impermissible burden on the freedom of communication. - CRIMINAL LAW – Offences against decency and morality – Publication of child abuse material on the Internet – interpretation of s474.22 of the Criminal Code.

LEGISLATION CITED: Criminal Appeal Act 1912, s5F(3)(a)
Criminal Code Act 1995 (Cth), Criminal Code s473.1, s473.4, s474.19, s474.22

CASES CITED: Coleman v Power (2004) 220 CLR 7
Holland v The Queen (2005) 30 WAR 231
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

PARTIES: Geoffrey William Leonard (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/796

COUNSEL: A R Jungwirth (Appellant)
P Roberts SC, L M McManus (Respondent)

SOLICITORS: M Lagana, Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0746

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

LOWER COURT DATE OF DECISION: 13 March 2007

- 8 -

2007/796

SPIGELMAN CJ
JAMES J
HISLOP J

Tuesday 3 July 2007

Geoffrey William LEONARD v REGINA

Judgment

1 SPIGELMAN CJ: The Applicant seeks leave under s5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal against the judgment of her Honour Judge Morgan in which her Honour refused a permanent stay of proceedings sought by the Applicant. In those proceedings the Commonwealth Director of Public Prosecutions sought to present an indictment for an offence under s474.22 of the Criminal Code (Cth). The charge is that:

“Between 19 September 2005 and 7 March 2006 at Sydney in the State of New South Wales, Geoffrey William Leonard, used a carriage service, namely the Internet, to make available child abuse material.”

2 The background facts can be briefly stated. The Applicant had a website on which he published material about himself and his involvement in what he called “man-boy love”. The website was used, inter alia, as a vehicle to promote the Applicant’s views that there should be changes to existing laws regarding sexual crimes against children.

3 The Crown alleges that on the website the Applicant published a 124 page article entitled “Punished for Love”. Within this article there was an edited police fact sheet and edited police statements of two males and of their father, concerning sexual acts committed on the two males (brothers then aged 13 years and 16 years) by the Applicant during…

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.

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Details

Case: [2007] NSWCCA 197
Decision Date: 3 July 2007

CaseChat Overview and Summary

Leonard was charged with publishing child abuse material in contravention of section 474.22 of the Criminal Code. He sought to have the proceedings stayed on the basis that the provision under which he was charged unconstitutionally restricted his freedom of political communication. The High Court of Australia considered the appeal against an interlocutory decision of the judge not to stay the proceedings. The central legal issue was whether section 474.22 of the Criminal Code, which prohibits the publication of child abuse material, infringed upon the implied freedom of political communication in the Commonwealth Constitution. The court had to determine whether the provision placed an impermissible burden on that freedom.

The Court found that section 474.22 did not place an impermissible burden on the freedom of political communication. It emphasised that the law was narrowly tailored to address the serious harm caused by the dissemination of child abuse material. The court held that the law was justified because it aimed to protect children from harm and did not extend to incidental restrictions on political communication. The Court also noted that the law was proportionate to the objective and did not suppress political discourse but rather focused on preventing harm to children.

In its reasoning, the Court concluded that the judge below had not erred in exercising the discretion not to stay the proceedings. The Court held that the appeal was without merit and dismissed it, affirming the decision not to stay the proceedings against Leonard. The Court's ruling upheld the constitutionality of section 474.22 and clarified the parameters within which laws restricting freedom of communication could operate without infringing on the implied freedom.

Orders