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Court of Criminal Appeal 1 March 1999

Regina v Geoghegan [1999] NSWCCA 20 revised - 04

[1999] NSWCCA 20 revised - 04

Sexual offences
CRIMINAL LAW AND PROCEDURE PERMANENT STAY OF PROSECUTION REFUSED IN DISTRICT COURT NO ERROR OR MISCARRIAGE OF DISCRETION

Citation: Regina v Geoghegan [1999] NSWCCA 20 revised 04/03/99
Court: Court of Criminal Appeal, New South Wales
Date: 1 March 1999
Judge(s): Grove J, Dunford J, Greg James J

Background

The applicant faced an indictment in the District Court at Liverpool alleging sexual offences said to have been committed approximately 34 to 38 years before the hearing. The prosecution did not arise from a complaint by the alleged victim but from information provided to police through an operation known as Operation Paradox. The applicant had also made admissions in relatively recent recorded interviews, including acknowledgments of sexual conduct with the complainant when the complainant was aged around 14 or 15.

The applicant sought a permanent stay of the prosecution in the District Court, arguing the extreme age of the alleged offences made a fair trial impossible. Judge O'Reilly QC refused the stay. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act.

  • Whether the District Court erred in refusing to permanently stay the prosecution of charges relating to offences alleged to have occurred 34 to 38 years earlier.
  • Whether the passage of time and resulting difficulty in locating witnesses and preparing a defence was sufficient to establish that the proposed trial would inevitably be unfair.
  • Whether the District Court's exercise of discretion in refusing the stay was manifestly wrong.

Decision

Grove J, with Dunford J and Greg James J agreeing, found no error in Judge O'Reilly's approach or reasoning. The court confirmed that the jurisdiction to order a permanent stay of prosecution exists where it can be shown that the proposed trial will inevitably be unfair. This is a high threshold, and it is distinct from an appellate court reviewing, after the fact, whether a completed trial was actually unfair.

The court observed that the applicant's written and oral submissions had not focused on the true issue for determination. While the length of time since the alleged offences was acknowledged to be "quite startling," the passage of time and the practical difficulties it creates in mounting a defence are not uncommon in prosecutions brought after many years. That difficulty alone does not justify restraining a trial altogether.

The court also noted that the applicant's submissions frequently conflated two separate matters: arguments that might properly support objections at trial (such as to the admissibility of evidence) and the very different question of whether the trial should be stayed entirely. The prospect that evidentiary objections might succeed at trial is unlikely to be relevant to the latter question. Grove J remarked that counsel's argument amounted to asserting that Judge O'Reilly was "manifestly wrong," a proposition the court rejected entirely. Grove J stated he would have reached the same conclusion as the primary judge.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The jurisdiction to permanently stay a prosecution is narrow: it applies where a court can be satisfied the proposed trial will inevitably be unfair, not merely that a fair trial will be difficult.
  • The District Court's refusal of a permanent stay was upheld as correct, with the Court of Criminal Appeal finding no error, and the presiding judge indicating he would have reached the same conclusion independently.
  • A long delay between alleged offences and prosecution, while potentially significant, does not in itself justify a permanent stay; such delay is a not uncommon feature of prosecutions involving historical allegations.
  • Arguments that may support evidentiary objections at trial are conceptually distinct from grounds for staying a prosecution altogether, and the two must not be conflated when seeking a permanent stay.
  • Appellate intervention in a discretionary refusal of a permanent stay requires demonstrated error; the mere assertion that the primary judge was manifestly wrong, without establishing actual error, is insufficient.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), section 5F

Cases:
No cases were cited in the text of the judgment.