R v Simmons - [2002] NSWCCA 522

CITATION: R v SIMMONS [2002] NSWCCA 522

FILE NUMBER(S): CCA 60362/02

HEARING DATE(S): 18 November 2002

JUDGMENT DATE:
24 December 2002

PARTIES :

Regina
Warren James Simmons

JUDGMENT OF: Heydon JA at 35; Hulme J at 1; Carruthers AJ at 36

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0830

LOWER COURT JUDICIAL
OFFICER : Hosking DCJ

COUNSEL : Crown: WG Dawe QC
Appellant: PR Boulten

SOLICITORS: Crown: SE O'Connor
Appellant: Murphy's Lawyers

DECISION: Appeal allowed; Conviction and sentence in respect of the second count on which the Appellant was convicted on 26 February 2002 quashed; Direct a verdict of acquittal on that count

- 12 -IN THE SUPREME COURT

No: 60362 of 2002

HEYDON JA
HULME J
CARRUTHERS AJ

Tuesday, 24 December 2002

REGINA v Warren James SIMMONS

Judgment

1 HULME J:-On 18 February 2002, the Appellant was indicted on 7 counts. In summary they were:-

2 All offences were said to have been committed in circumstances of aggravation, viz. that the complainant was 13 at the time.

3 The Appellant pleaded guilty to the first and sixth counts. He was convicted of the second but acquitted on the other counts. His grounds of appeal are that the verdict of guilty was inconsistent with the verdicts of not guilty and “was unreasonable or cannot be supported having regard to the evidence”.

4 The law and other issues relevant to verdicts said to be inconsistent and thus unreasonable has recently been reviewed in this Court in R v Markuleski (2001) 52 NSWLR 82 and in the High Court decision of MFA v R [2002] HCA 53 and it is unnecessary for a further review in this appeal. It is sufficient to record that the ultimate test is that defined in s6 of the Criminal Appeal Act and, as explained by the High Court in M v R (1994) 181 CLR 487 at 493 is whether this Court “thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”; and in that a substantial component of the Appellant’s argument arises from the verdicts of not guilty in 4 of the 5 counts submitted to them, it becomes necessary to consider the facts and circumstances and in particular whether there can be found in those facts and circumstances any explanation for the difference in the verdicts. Nevertheless the issue remains that posed by s6 as explained in M v R.

5 The Crown case depended…

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 R v Simmons

Details

AGLC: R v Simmons [2002] NSWCCA 522
Case: [2002] NSWCCA 522
Decision Date: 24 December 2002

CaseChat Overview and Summary

In the case of R v Simmons, the appellant, Warren James Simmons, was convicted by the District Court on two counts of indecent assault and was acquitted on the remaining five counts. Simmons appealed the conviction on the second count, arguing that it was inconsistent with the acquittals on the other counts and thus unreasonable. The Crown's case primarily relied on the complainant's testimony, supported by some admissions made by Simmons during an electronically recorded interview and his wife's testimony. The complainant alleged multiple instances of indecent acts committed by Simmons, including attempted sexual intercourse, over a period spanning from 24 December 1999 to 4 January 2000.

The legal issue before the Court of Criminal Appeal was whether the jury's conviction on the second count, considering the acquittals on the other counts, was unreasonable or could not be supported by the evidence. The Court reviewed the evidence and the complainant's credibility, noting inconsistencies and omissions in her testimony and the complainant's failure to report the alleged offences immediately. The Court concluded that the jury's acquittals on the other counts reflected their skepticism about the complainant's credibility, which undermined the conviction on the second count. The admissions by Simmons regarding indecent acts did not sufficiently support the specific charge of indecent assault as alleged in the second count. Consequently, the Court found the conviction on the second count unreasonable and quashed both the conviction and the sentence associated with it, directing a verdict of acquittal on that count.

In summary, the Court allowed the appeal, quashed the conviction and sentence for the second count, and directed a verdict of acquittal on that count. The Court also noted that Simmons' admissions indicated he was guilty of indecent assault, albeit in a manner different from that charged, and suggested that the Director of Public Prosecutions may reconsider charging him for the offence he admitted to.

Orders