R v Simmons (No 6) [2015] NSWSC 418

[2015] NSWSC 418

Supreme Court

New South Wales

Medium Neutral Citation:	R v Simmons (No 6) [2015] NSWSC 418
Hearing dates:	13-14 April 2015
Date of orders:	14 April 2015
Decision date:	14 April 2015
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) Pursuant to s 128(2) Evidence Act I find that there are reasonable grounds for the objection taken by Kieran Moore. (2) Pursuant to s 128(4) Evidence Act I require Mr Moore to give evidence. (3) Mr Moore will have a certificate under s 128(6) of the Evidence Act.
Catchwords:	CRIMINAL LAW – EVIDENCE – privilege against self-incrimination - objection by witness who was previously charged as an accessory – finality of decision by DPP to discontinue proceedings – decision not final – application of High Court decision in X7 v Australian Crime Commission to s 128 Evidence Act – whether in the interests of justice to require witness to give evidence – relevant considerations – protection afforded by certificate – potential of ruling to fundamentally alter accusatorial process – no pending criminal proceedings – reasonable grounds for objection but witness required to give evidence – certificate granted
Legislation Cited:	Evidence Act 1995 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW) Crimes Act 1900 (NSW) National Crime Authority Act 1985 (Cth) Australian Crime Commission Act 2002 (Cth)
Cases Cited:	Beckett v State of New of New South Wales [2013] HCA 17 Lee v Australian Crime Commission [2013] HCA 39; 87 ALJR 1082 Lee v The Queen [2014] HCA 20 R v Burrell [2004] NSWCCA 185 R v BWM (1997) 91 A Crim R 260 R v Filimoehala [2003] NSWCCA 37 R v Mellifont (1992) 64 A Crim R 75 R v Ohar [2004] NSWCCA 83 R v Seller & McCarthy [2013] NSWCCA 42 R v Simmons (No 5) (Non-Publication Orders) [2015] NSWSC 333 R v Simmons; R v Moore (No 2) [2015] NSWSC 143 R v Simmons; R v Moore (No 3) [2015] NSWSC 189 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 R v X [2014] NSWCCA 168 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 X7 v R [2014] NSWCCA 273
Texts Cited:	Weinberg, Justice Mark, ‘The impact of special commissions of inquiry/crime commissions of criminal trials’ (2015) 12(2) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales 199.
Category:	Procedural and other rulings
Parties:	Crown Tony James Simmons (Accused) Kieran Moore (Witness)
Representation:	Counsel: P Barrett (Crown) P Young SC (Simmons) J Stratton SC (Moore, intervening) Solicitors: DPP (Crown) Mathew Lorkin Solicitor (Simmons) Hardin Law (Moore, intervening)
File Number(s):	2013/15065
Publication restriction:	Nil

EX TEMPORE Judgment (revised)

1. Mr Tony Simmons is on trial for the murder of Andrew Russell. On the eleventh day of the trial proper, the Crown called Kieran Moore to give evidence. Mr Moore was previously a co-accused in the proceedings. He was originally charged with murder but that charge was later reduced to one of accessory after the fact to murder. When the pre-trial voir dire commenced before me on 16 February 2015, the two men were in the dock together, Simmons charged with murder and Moore charged with accessory after the fact to that crime.

2. There have been a number of previous rulings and the judgments relating to those decisions set out the factual background to the case: R v Simmons; R v Moore (No 2) [2015] NSWSC 143; R v Simmons; R v Moore (No 3) [2015] NSWSC 189; R v Simmons; R v Moore (No 4) [2015] NSWSC 259; R v Simmons (No 5) (Non-Publication Orders) [2015] NSWSC 333.

3. On Tuesday, 10 March 2015 I made a ruling excluding statements made by Mr Moore to another witness (Jodie Biles) and admissions made by him upon his arrest: R v Simmons; R v Moore (No 3). On Friday, 13 March 2015 the Crown indicated that the Director of Public Prosecutions (“DPP” or “the Director”) had ordered no further proceedings in relation to Mr Moore and he was discharged on the indictment.

4. When Mr Moore was called to give evidence Mr Stratton SC (who appeared for him when he was a co-accused in the trial) sought leave to appear on the limited question of whether Mr Moore should be required to give evidence over an anticipated objection pursuant to s 128 of the Evidence Act 1995 (NSW). That is, it was anticipated that Mr Moore would object to giving particular evidence or evidence on a particular subject matter on the ground that it may tend to prove that he had committed an offence under Australian law. Leave was granted to Mr Stratton and the argument proceeded on 13-14 April.

5. Section 128 is in the following terms:

128 Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

(2) The court must determine whether or not there are reasonable grounds for the objection.

(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:

(a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and

(b) that the court will give a certificate under this section if:

(i) the witness willingly gives the evidence without being required to do so under subsection (4), or

(ii) the witness gives the evidence after being required to do so under subsection (4), and

(c) of the effect of such a certificate.

(4) The court may require the witness to give the evidence if the court is satisfied that:

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6) The court is also to cause a witness to be given a certificate under this section if:

(a) the objection has been overruled, and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence:

(a) evidence given by a person in respect of which a certificate under this section has been given, and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

Note : This subsection differs from section 128 (7) of the Commonwealth Act. The Commonwealth provision refers to an “Australian Court” instead of a “NSW court”.

(8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.

(9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence.

(10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:

(a) did an act the doing of which is a fact in issue, or

(b) had a state of mind the existence of which is a fact in issue.

(11) A reference in this section to doing an act includes a reference to failing to act.

(12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by a person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

(13) For the purposes of subsection (12), a prescribed State or Territory provision is a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of that subsection.

(14) Subsection (12) applies to a proceeding in relation to which this Act applies because of section 4, other than a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth.

6. After some introductory remarks were made by Mr Stratton and some preliminary propositions put by the learned Crown prosecutor, Mr Moore was called to give evidence. He gave his name but when asked whether he lived in Bathurst he said “I have been advised not to answer any questions as it might be used in evidence against me”. I then asked him a series of questions as to whether his objection would extend to answering questions about his relationship with Mr Simmons, things he said to Jodie Biles while he was in Bloomfield Hospital, things he said to police shortly after his arrest and his knowledge (if any) of the disappearance of Mr Russell.

7. I formed the view that there were reasonable grounds for the objection taken by Mr Moore: s 128(2). Even a question as apparently innocuous as whether he lived in Bathurst in 2009 had at least some potential to be used against him in the event that he was prosecuted in relation to offences arising out of the disappearance of Mr Russell. Even if that somewhat extreme proposition is not correct, it is clear from the material before me on the voir dire that the evidence that the Crown hopes to elicit from Mr Moore is evidence that may tend to incriminate him. The question then became whether I should require Mr Moore to give evidence notwithstanding his objection but grant him a certificate under the provisions of s 128 (3) - (7).

8. That question is to be determined by reference to whether I am satisfied that it is in the interests of justice that Mr Moore be required to give the evidence in question: s 128(4)(b).

9. Mr Stratton contends that I should not grant a certificate in the particular circumstances of the case. He says that, in accordance with the High Court’s decision in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92, a certificate pursuant to s 128 does not provide sufficient protection to his client in the eventuality that he ever faced prosecution either for the substantive charge of murder (the offence with which he was originally charged) or as an accessory after the fact to the murder (the offence with which he was subsequently charged). Mr Stratton says that even though the criminal proceedings against his client are no longer extant because they were subject to a nolle prosequi and consequent order for discharge on the indictment, it remains open to the prosecution to charge him again with one or other of those offences. This proposition is correct.

10. In Beckett v State of New of New South Wales [2013] HCA 17 French CJ, Hayne, Crennan, Kiefel and Bell JJ said:

“It is far from clear when the older authorities speak of the entry of a nolle prosequi as "putting the defendant sine die" that more is being said than that it does not bar a subsequent prosecution. It is rare for proceedings to be revived after termination by nolle prosequi, and there is an absence of authority on the point. The preferable view, which accords with practice, is that stated in Allen: the entry of a nolle prosequi brings proceedings on the indictment to an end without barring a subsequent prosecution on a fresh indictment.”

11. See also R vMellifont (1992) 64 A Crim R 75 and, for the source of the Director’s power, s 7 Director of Public Prosecutions Act 1986 (NSW);

12. In particular, it would not be open to Mr Moore to raise a plea in bar (autre fois acquit) or to contend that principles of res judicata or double jeopardy apply in the circumstances. In the particular circumstances of the case, it may be open to argue that the resurrection of the prosecution would constitute an abuse of process but that is not a question for me to consider at this stage and, as Mr Stratton submits, applications for permanent stays of proceedings rarely meet with success.

13. There are a number of cases in which New South Wales prosecuting authorities have been seen to change their position in relation to the disposition of such proceedings. For example, in R v BWM (1997) 91 A Crim R 260, the Crown withdrew its acceptance of a plea of guilty to manslaughter in full discharge of an indictment charging murder. In R v Filimoehala [2003] NSWCCA 37, the Crown withdrew its acceptance of a plea of guilty to an offence under s 35 in full discharge of the indictment charging an offender under s 33 Crimes Act 1900 (NSW). Ironically enough, Mr Filimoehala was subsequently acquitted outright. Nevertheless, the case shows that Mr Stratton’s concerns about the possible resurrection of the prosecution against Mr Moore are justified.

14. In R v Burrell [2004] NSWCCA 185 the Director of Public Prosecution advised the accused in April 2001 that he had decided to “proceed no further” on charges of kidnapping and murder. He was then discharged. There had been a number of pre-trial rulings by Sully J. In 2002 a coronial inquest was held and the Coroner sent a report to the DPP. On 23 September 2003 the DPP filed an ex-officio indictment. An application for a stay of proceedings was refused by Wood CJ at CL and the Court of Criminal Appeal upheld the refusal of the stay. At the new trial, the Crown sought unsuccessfully to re-agitate the admissibility of some evidence previously excluded by Sully J and led evidence that it had not pressed in the previous proceedings: [21]-[22]. There had been additional evidence obtained that the Court considered to have been of “considerable significance”: [28].

15. I accept that neither the Director’s decision to order no further proceedings nor the discharge of Mr Moore’s on the indictment is necessarily final. However, even accepting that to be the case, the situation is very different to the circumstances that would apply if Mr Moore was facing pending criminal charges.

16. When I asked the learned Crown Prosecutor whether he could call Mr Moore as a witness in Mr Simmons’ trial if Mr Moore remained charged with the offence of accessory after the fact, but was to be tried separately, he accepted that he could not do so because he would remain, in effect, a co-accused. That proposition must be correct in light of authorities such as X7 v The Australian Crime Commission. It would be an extraordinary exercise of the prosecutorial discretion to attempt to call a witness who was subject to criminal prosecution in relation to the same or related criminal offences. As the Crown Prosecutor said:

“I wouldn't have, I could not in accordance with my obligations under the Act, I could not have served a subpoena. It would have been improper for me to do so and that is a very different situation and that is a classic example of why this provision exists, that he is not a defendant.”

17. This shows that while (as the Crown submits) s 128 made a significant change to the law, that change was not an absolute one. Ultimately, the question turns on an assessment of whether it is in the interests of justice to require Mr Moore to give the evidence.

18. There are no pending criminal proceedings against Mr Moore. The resurrection of such proceedings is possible but there is nothing to suggest that it is likely. The Crown Prosecutor refers to my decision in Moore (No 3) as “binding”. Certainly the provision in s 130A of the Criminal Procedure Act 1986 (NSW) is a substantial obstacle to any attempt by the prosecution to revisit the question of the admissibility of Mr Moore’s statements. However, that obstacle is subject to the proviso that a future trial Judge may hold that it would not be in the interests of justice for the ruling to be binding: s 130A(3). Mr Stratton concedes that this obstacle did not exist at the time of R v Burrell. However, on my (necessarily quick) reading of the judgment in R v Burrell, none of the earlier rulings made by Sully J were in fact overturned.

19. The Crown also says that any appeal from the rulings I made in R v Simmons (No 3) would require the granting of leave or may be out of time. I am not sure that this is so: see s 5F(3A) Criminal Appeal Act 1912 (NSW). However, one could well imagine counsel appearing for the Crown receiving a torrid reception in the Court of Criminal Appeal in the face of the Director’s failure to appeal the decision in a timely fashion. If leave were required (which I doubt) that failure, the decision to enter the no bill and the calling of Mr Moore as a witness, would militate strongly against the Court of Criminal Appeal granting such leave. Those factors may also be relevant if the appeal involved the exercise of discretion. It was held in R v Ohar [2004] NSWCCA 83 that the time limits in s 10 of the Criminal Appeal Act1912 (NSW) do not apply to a Crown appeal against sentence but that any delay was relevant to the exercise of discretion. Neither counsel could direct me to any time limit on an appeal pursuant to s 5F(3A).

20. There are two significant distinctions between the circumstances in X7 v ACC and the present case. The first distinction is a legal one. As the Crown Prosecutor submitted, the relevant legislation under consideration in X7 v ACC - that is, the National Crime Authority Act 1984 (Cth) (as amended) and the Australian Crime Commission Act 2002 (Cth) - did not make provision concerning the derivative use of evidence obtained in consequence of a compulsory examination. That might be contrasted with the situation relating to s 128 of the Evidence Act which provides that where a certificate is granted “evidence of any information, document or thing obtained as a direct or indirect consequence” of the person having given evidence cannot be used against the witness in subsequent proceedings. That distinction is not determinative of the circumstances prevailing here because the majority in X7 v ACC appeared to be less concerned with derivative use of the evidence than it was with the “fundamental alteration” of the “accusatory or judicial process”. Hayne and Bell JJ said at [124]-[125]:

“Impact on accusatorial process

124.   Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self‑incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.

125.   As has been explained, if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment. If the relevant statute does not provide clearly for an alteration of that kind, compelling answers to questions about the subject matter of the pending charge would be a contempt.”

21. Their Honours made similar comments at paragraphs [71], [85] and [136]. Kiefel J came to a similar conclusion and for essentially the same reasons.

22. Thus it was that the majority held (French CJ and Crennan J dissenting) that the compulsory examination of the witness X7 was not authorised by the relevant legislation and was held to be unlawful.

23. As I understand it, none of the cases decided since the decision in X7 v ACC have called into question the currency of paragraph [124]. In Lee v Australian Crime Commission [2013] HCA 39; 87 ALJR 1082, French CJ, who had been in the minority in X7 v ACC, implicitly accepted it when he said at [54]:

“It may be accepted that the examination process under the [Criminal Assets Recovery Act] may, if it touches upon matters the subject of pending criminal charges against the examinee, affect the accusatorial character of the trial process. Even if the responses of the examinee to questions put to him or her were kept secret and were solely exculpatory or did no more than disclose defences to the charges, the examinee could be said to have suffered a forensic disadvantage. The nature of that disadvantage was discussed in the joint judgment of Hayne and Bell JJ in X7. I do not, with respect, disagree with anything their Honours said in the description of that disadvantage.”

24. In Lee v The Queen [2014] HCA 20 the Court (French CJ, Crennan, Kiefel, Bell and Keane JJ) said at [31]:

“In X7, a majority of this Court held that the powers of compulsory examination given to the Australian Crime Commission were not to be construed as applying to persons already charged with offences the subject of the examination. To do so would be to depart from the accusatorial nature of the criminal justice system in a fundamental respect. Clear words or those of necessary intendment were therefore necessary and neither were present in the legislation in question. As such, it was not necessary for the majority in X7 to consider the protective purpose of a provision similar to s 13(9). However, French CJ and Crennan J, who were in dissent, did so. It was a matter of some significance to their Honours' reasoning that the legislation, in providing for a direction regarding non-publication, did so in order to safeguard the examined person's trial as fair.”

25. See also R v X [2014] NSWCCA 168; X7 v R [2014] NSWCCA 273 at [99] – [105].

26. The distinguishing feature in most, if not all, of these cases is the existence of pending criminal proceedings. While it is true that it would be open to the DPP to reinstitute the proceedings against Mr Moore, notwithstanding its earlier decision to discontinue those proceedings, the fact remains that there are no current charges outstanding against him. This is the second significant feature that distinguishes the present case from the decision in X7 v ACC.

27. For those reasons I have reached the conclusion that the examination of Mr Moore would not be unlawful in accordance with the principles derived from the case of X7 v ACC.

28. However, that is not the end of the matter. The ultimate question for determination here is whether it is in the “interests of justice” for Mr Moore to be compelled (or to use the words of s 128) “required” to give evidence. The principles enunciated in X7 v ACC remain relevant to that question.

29. Without being exhaustive, and in the limited time available, I consider the following matters to be relevant to the question of where the interests of justice lie in the present case.

30. First, there are no current criminal proceedings pending against Mr Moore.

31. Second, and against that, the DPP’s decision to take no further proceedings is not final and the Court would be reluctant to interfere with the Director’s exercise of a discretion to file an ex officio indictment.

32. Third, the adversarial process would be fundamentally altered by what would be (in effect) a compulsory examination of Mr Moore over his valid objection if the prosecution were to reinstitute the proceedings against him.

33. Fourth, contrary to the submissions of both Mr Young and Mr Stratton, the evidence is significant in the context of Mr Simmons’ trial. If the things that Mr Moore said to police are accepted, the evidence may be quite important in the case against Mr Simmons and potentially probative of his guilt. Put simply, Mr Moore told police that the accused (Mr Simmons) had killed Mr Russell and that he (Mr Moore) had assisted in hiding the corpse. On the voir dire he said that his statements were no more than a story that he made up because of the pressure he was under having just been charged with murder and in the circumstances I outlined in R v Simmons (No 3). However, that is a matter to be determined on the basis of the evidence (if any) that Mr Moore gives in the trial and by reference to how his evidence fits with other evidence given in the proceedings. It is true that the Crown has available to it a variety of alleged admissions made by Mr Simmons himself but, with the exception of the admissions recorded by the undercover police officers, that evidence comes from witnesses whose evidence is hotly contested and who had, to put it as kindly as I can, some significant credibility issues. If accepted, Mr Moore’s statements to the police shows that he is an eye witness to the events.

34. Fifth, I do not consider the conversations with Miss Biles to be as important or significant, but the reference to certain witnesses remaining “staunch” may lead to evidence being adduced from Mr Moore that has some relevance to the case presented against Mr Simmons. This is particularly so in view of the performance in the witness box of the witness Jakob Peters who appeared on one view to be doing everything he could to avoid assisting in the prosecution of his friend Mr Simmons. It might be thought that he had, in accordance with the words used by Mr Moore when he spoke to Ms Biles, elected to remain “staunch”.

35. Sixth, the seriousness of the charge against Mr Simmons is also a factor to be weighed in determining whether the interest of justice require Mr Moore to give evidence.

36. Seventh, if the prosecution were to reinstitute the proceedings, the proceedings could be subject to an application for a permanent stay. In the particular circumstances of this case, and notwithstanding the rarity of successful applications for permanent stay, there may be some merit in such an application. The Crown Prosecutor’s conceded as much when he said:

“While my learned friend's argument as to stay applications is consistent with the paucity of stays that are granted, this is one where a stay, were there proceedings to be recommenced, and an application for leave to appeal your Honour's ruling, that a stay application would be alive, very much alive in the circumstances.

…

But if one looks at the history of stay applications, and that there are so few that are granted, they need to be something out of the ordinary as it were, I suppose is one way of looking at it, and this would be one of those examples.”

37. Eighth, on the other hand, such comments are not binding on the Director or on a future prosecutor. The circumstances here prevailing are not very far removed from cases such as R v X and R v Seller & McCarthy [2013] NSWCCA 42. In each of those cases orders for a permanent stay of proceedings were overturned. In X7 v R the Court of Criminal Appeal upheld the refusal of an order for a stay of proceedings in similar circumstances.

38. Ninth, the fact that s 128 provides protection against not only the direct use of the evidence but also indirect use or as it is sometimes called, derivative use of the evidence.

39. Finally, as conceded by Mr Stratton, the examination will be conducted in a Court (rather than in an investigative tribunal) and I will be in a position to ensure fairness in the examination. However, that fact alone does not change the fact that if future proceedings are bought against Mr Moore, the forensic disadvantages enunciated by the High Court in X7 v ACC and subsequent cases will be real and difficult, if not impossible, to overcome. The cases and forensic difficulties are helpfully summarised by the Honourable Justice Wienberg in an article published in the Judicial Review: Weinberg, Justice Mark, ‘The impact of special commissions of inquiry/crime commissions of criminal trials’ (2015) 12(2) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales 199.

40. Balancing those various and contradictory factors as best as I can, I have reached the conclusion that it is in the interests of justice that Mr Moore be required to give evidence. The factors at the forefront of my reasoning are (i) the seriousness of the charge of murder, (ii) the potential significance of the evidence and (iii) the fact that there are no pending charges against Mr Moore and (iv) my assessment of the unlikelihood in the circumstances that the decision to discontinue will be revisited by the DPP.

41. Accordingly, I make the following orders:

1. Pursuant to s 128(2) Evidence Act I find that there are reasonable grounds for the objection taken by Kieran Moore.

2. Pursuant to s 128(4) Evidence Act I require Mr Moore to give evidence.

3. Mr Moore will have a certificate under s 128(6) of the Evidence Act.

**********

Decision last updated: 16 April 2015