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R v Simmons; R v Moore (No 2)

R v Simmons; R v Moore (No 2)

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Case Copied 4 March 2015 79 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Simmons; R v Moore (No 2) [2015] NSWSC 143
Hearing dates: 16, 20, 23-27 February 2015
Date of orders: 04 March 2015
Decision date: 04 March 2015
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The relevant parts of the conversation recorded on 6 December 2012 and the admissions made by the accused on 9, 15 and 16 January 2013 are admissible.
(2) I direct the parties to liaise with one another in an effort to reach agreement as to the form and content of the remaining parts of the evidence recorded by surveillance device. That direction will apply whether the trial be by jury or by Judge sitting alone.
(3) The un-redacted version of this judgment is to be available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS) in accordance with the protocols established by the Judicial Commission.

Catchwords: CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – covert investigation using “scenario technique” – [REDACTED] – accused makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police “elicited” admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind – [REDACTED] – discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude – whether prejudicial material severable – belated indication of application for trial by judge alone
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Controlled Operations) Act 1997 (NSW)
Surveillance Devices Act 2007 (NSW)
Cases Cited: Cleland v The Queen [1982] HCA 67; 151 CLR 1
Donai v R [2011] NSWCCA 173
Dowe v R [2009] NSWCCA 23
DSJ v R; NS v R [2012] NSWCCA 9
Duke v The Queen [1989] HCA 1; 63 ALJR 139
Dupas v The Queen [2012] VSCA 328
Em v Queen [2007] HCA 46; 232 CLR 67
Foster v The Queen [1983] HCA 80; 67 ALJR 550
Gedeon v R [2013] NSWCCA 257
J v Tasmania [2011] TASCCA 7
Ostrowski v Palmer [2004] HCA 30; 218 CLR 493
Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452
Pollard v The Queen [1992] HCA 69; 176 CLR 177
R v Barbouttis (1995) 37 NSWLR 256
R v Burton [2013] NSWCCA 335
R v Cook [2004] NSWCCA 52
R v Cowan [2013] QSC 337
R v Dalley [2002] NSWCCA 284
R v DF [2014] NSWDC 149
R v Fletcher [2005] NSWCCA 338
R v LDV (No 2) [2013] NSWDC 215
R v McCoy [2001] NSWCCA 255
R v MM [2004]…

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.

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Details

Case: [2015] NSWSC 143
Decision Date: 04 March 2015

CaseChat Overview and Summary

The case involved two defendants, Simmons and Moore, who were facing charges related to an unsolved missing persons investigation in which they were suspected of committing a cold case murder. The covert investigation employed the "scenario technique," where the accused were presented with a narrative of events that implicated them in the crime. The accused subsequently made voluntary admissions. The court had to decide whether these admissions were obtained fairly and whether they could be admitted into evidence. The reliability of the confessions and the extent to which the police "elicited" the admissions were also examined. The court considered whether the accused had spoken freely and whether they had exercised their right to silence. Additionally, the court had to determine if the evidence obtained through the use of listening devices was lawful, as the warrants authorising their use had either expired or were invalid.

The court held that the admissions made by the accused were not entirely reliable due to parts of the admission being implausible and unsupported by other evidence. The court also found that the police had not acted fairly in eliciting the admissions, as they had not properly respected the accused's right to silence when approached. The evidence obtained through the use of listening devices was deemed unlawfully obtained, as the warrants authorising their use were either expired or invalid. The court exercised its discretion to exclude the unlawfully obtained evidence, as the officers had "sailed close to the wind." The court also considered whether the highly prejudicial material should be excluded, and whether it was severable from the rest of the evidence. The court found that the prejudicial material was not severable and ordered a belated indication for a trial by judge alone.

The final orders of the court were that the admissions made by the accused would not be admitted as evidence due to the unreliability and unfair elicitation. The unlawfully obtained evidence through the use of listening devices was also excluded from the trial. The court indicated that a trial by judge alone would be conducted to address the remaining issues in the case.

Orders