Regina v Geoghegan - [1999] NSWCCA 20

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…

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 Regina v Geoghegan

Details

AGLC: Regina v Geoghegan [1999] NSWCCA 20
Case: [1999] NSWCCA 20
Decision Date: 1 March 1999

CaseChat Overview and Summary

Regina v Geoghegan is a case concerning the refusal of a permanent stay of prosecution by the District Court of New South Wales. The defendant, Geoghegan, sought a permanent stay of proceedings on the basis that the charges against him were oppressive and/or trivial. The legal dispute primarily revolved around the interpretation and application of the criteria for a permanent stay of proceedings under the relevant legislation. The District Court denied the application, and Geoghegan subsequently appealed to the higher court.

The primary legal issues the court was required to decide involved the interpretation of statutory provisions that govern permanent stays of proceedings in criminal cases. These provisions permit a stay if the proceedings are considered oppressive or trivial. The court needed to determine whether the District Court had applied the correct legal principles in dismissing the application for a permanent stay and whether there was any error or miscarriage of discretion.

The court found that the District Court had correctly applied the legal principles in dismissing the application for a permanent stay. The criteria for a permanent stay were interpreted narrowly, requiring that the proceedings be not merely trivial or oppressive but substantially so. The court held that the District Court's assessment was within its discretion and found no evidence of an error or miscarriage of discretion. The appeal was therefore dismissed, and the decision of the District Court was affirmed.

Orders