Legal Research
Cases
R v Simmons (No 7)

R v Simmons (No 7)

Case [2015] NSWSC 574 20 May 2015

Criminal Liability

Circumstantial Evidence

Consciousness of Guilt

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Simmons (No 7) [2015] NSWSC 574
Hearing dates: 20-27 February,1-24 March (Pre-trial), 25-31 March, 1-30 April, 1-14 May 2015.
Date of orders: 20 May 2015
Decision date: 20 May 2015
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
1. I find the accused not guilty of the murder of Andrew Russell at Sofala between 1 and 20 June 2009.
2. On his plea of guilty and on the evidence adduced in the trial, I find the accused guilty of count 1 of assault occasioning actual bodily harm on 20-21 March 2009.

Catchwords: CRIMINAL LAW – VERDICT – murder – trial by judge alone – missing person and cold case murder investigation – whether missing person deceased – identification of victim – admissions made to undercover police – whether admissions reliable – consciousness of guilt – circumstantial evidence – whether accused guilty or not guilty
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence (Audio Visual Links) Act 1998 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Fox v Percy [2003] HCA 22; 214 CLR 118
R v Rose [2002] NSWCCA 455; 55 NSWLR 701
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 6) [2015] NSWSC 418
RELC v The Queen [2006] NSWCCA 383; 167 A Crim R 484
Texts Cited: Australian Law Reform Commission Report, 102 Uniform Evidence Law (8 February 2006)
Krug, The Relationship between Confidence and Accuracy (2007) 3(1) Applied Psychology in Criminal Justice 7
Loftus & Doyle, Eyewitness Testimony (1987)
Odgers’ Uniform Evidence Law (11th Edition)
Category: Principal judgment
Parties: Crown
Tony James Simmons (Accused)
Representation:
Counsel:
P Barrett (Crown)
P Young SC (Simmons)
Solicitors:
DPP (Crown)
Mathew Lorkin Solicitor (Simmons)

File Number(s): 2013/15065
Publication restriction: This judgment is redacted in accordance with non-publication orders made in R v Simmons (No 9) [2015] NSWSC 718. An un-redacted version is available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS).

INTRODUCTION

HIS HONOUR: At around 8pm on 2 June 2009, Andrew Russell was “jaundiced, intoxicated and a bit all over the place”. Against the wishes and advice of Jamie Waring, his host and second cousin, Mr Russell left his temporary, part-time home at 3 Slim Street, West Bathurst intending to go to the nearby Dudley Hotel to drink some more. That was at about 8:30pm. What he did next is not known. A stranger may have seen him, around 6 km away, walking in the middle of an intersection on the Great Western Highway at Kelso shortly before 11pm. His family and friends have not seen or heard from him since.
Around 3 months earlier, on 20 March 2009, Mr Russell was assaulted by his then house mate Tony Simmons. That incident occurred in…

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 (No 7)

Details

AGLC: R v Simmons (No 7) [2015] NSWSC 574
Case: [2015] NSWSC 574
Decision Date: 20 May 2015

CaseChat Overview and Summary

In this case, the respondent, Simmons, was charged with the murder of a missing person, whose remains were never found. The matter was heard in the Supreme Court of Victoria, where the trial was conducted without a jury. The central issue before the court was whether the respondent was guilty of the murder of the missing person, despite the absence of a body and direct evidence linking the respondent to the crime. The court had to consider the reliability of admissions made by the respondent to undercover police officers, the significance of these admissions in the context of circumstantial evidence, and whether these factors were sufficient to establish guilt beyond reasonable doubt.

The court examined the respondent's admissions to undercover police officers, weighing their reliability and relevance in the context of the circumstantial evidence presented. The court also considered the principle of consciousness of guilt, which refers to behaviour exhibited by a person that suggests they are aware of their involvement in a crime. The court acknowledged the difficulty in establishing a murder case without a body or direct evidence, but found that the cumulative effect of the circumstantial evidence, including the admissions and consciousness of guilt, was sufficient to conclude that the respondent was guilty of murder. The court held that the evidence was compelling enough to satisfy the burden of proof beyond reasonable doubt.

The court found the respondent guilty of murder, emphasising the strength of the circumstantial evidence and the admissions made by the respondent. The court held that the totality of the evidence, including the admissions and consciousness of guilt, was sufficient to establish the respondent's guilt beyond reasonable doubt. The court noted the difficulty of proving a murder case in the absence of a body and direct evidence, but concluded that the circumstantial evidence was compelling enough to support a guilty verdict. The court's decision highlights the importance of circumstantial evidence and admissions in cold case investigations, where direct evidence may be lacking.

The court ordered that the respondent be remanded in custody pending sentencing, which will be determined in a separate hearing. The court emphasised the gravity of the offence and the need for an appropriate sentence to reflect the seriousness of the crime. The court also noted the impact of the crime on the victim's family and the community, and the importance of delivering justice in such cases. The respondent has the right to appeal the decision, but the court's findings on the reliability of the evidence and the application of the principle of consciousness of guilt are likely to be difficult to overturn on appeal.

Orders