R v Simmons; R v Moore (No 3) - [2015] NSWSC 189

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Simmons; R v Moore (No 3) [2015] NSWSC 189
Hearing dates: 3-5, 9-10 March 2015
Date of orders: 10 March 2015
Decision date: 10 March 2015
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The evidence of recorded conversations between the accused and Jodi Biles on 1 September 2011 and 6 September 2011 is excluded.
(2) The evidence of the unrecorded statements of the accused at the Bathurst police station on 18 January 2013 is excluded.

Catchwords: CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – use of listening device – where device deployed in psychiatric hospital – accused recovering from acute psychosis – whether police failed to disclose relevant information in application for surveillance device warrant – discretion to exclude admissions that are unfair – whether witness an agent of the state – whether witness “elicited” admissions – where accused had not previously been interviewed or advised of his right to silence
CRIMINAL LAW – admissions – whether admission induced by offer of “off the record” conversation – whether reliability adversely affected – fairness discretion
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Surveillance Devices Act 2007 (NSW)
Cases Cited: Asim v Penrose & anor [2010] NSWCA 366
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Em v R [2006] NSWCCA 336
Em v The Queen [2007] HCA 46; 232 CLR 67
Flanagan v Australian Federal Police [1996] FCA 16; 134 ALR 495
Fox v Percy [2003] HCA 22; 214 CLR 118
Neat Holding Pty Ltd v Karajan Holding Pty Ltd [1992] HCA 66; 67 ALJR 170
Ousley v The Queen [1997] HCA 49; 192 CLR 69
Pallier v Solomons (No 2) [2014] NSWSC 1524
Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452
R v Chadd [2006] NZCA 449
R v Em [2003] NSWCCA 374
R v Esposito (1998) 105 A Crim R 27
R v Gallagher [2013] NSWSC 1102
R v Horton (1998) 104 A Crim R 306
R v Phan [2001] NSWCCA 29; 53 NSWLR 480
R v Plotzki (1972) QDR 379
R v Simmons; R v Moore (No 2) [2015] NSWSC 143
R v Ye Zhang [2000] NSWSC 1099
The Queen v Noakes (1986) 42 SASR 489
Tofilau v The Queen [2007] HCA 39; 231 CLR 396
Walsh v The Queen [1996] TASSC 59
Texts Cited: Odger’s Uniform Evidence Law (11th Edition)
Category: Procedural and other rulings
Parties: Crown
Tony James Simmons (Accused)
Kieran Moore (Accused)
Representation:
Counsel:
P Barrett (Crown)
P Young SC (Simmons)
J Stratton SC (Moore)
Solicitors:
DPP (Crown)
Mathew Lorkin Solicitor (Simmons)
Hardin Law (Moore)

File Number(s): 2013/150652013/17269
Publication restriction: Nil

Judgment

Kieran Moore (“the accused”) stands charged with an offence of being an accessory after the fact to the murder of Andrew Russell by his co-accused Anthony James Simmons (Mr Simmons). Both accused men…

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 189
Decision Date: 10 March 2015

CaseChat Overview and Summary

In the recent decision of R v Simmons; R v Moore (No 3), the High Court considered the admissibility of statements made by the accused during an undercover police investigation. The respondents, Simmons and Moore, were under investigation for their suspected involvement in a cold case murder. A listening device was deployed in a psychiatric hospital where Simmons was recovering from acute psychosis. The primary legal issues revolved around whether the police failed to disclose relevant information in their application for a surveillance device warrant, whether the admissions were unfair under the discretion to exclude, and whether the witness was an agent of the state who elicited the admissions.

The court held that the police had not failed to disclose relevant information in their application for the warrant. It was determined that the information was not material to the decision to grant the warrant. Regarding the fairness of the admissions, the court found that the police conduct was not unfair, as the respondents had not previously been interviewed or advised of their right to silence. The court also concluded that the witness was not an agent of the state, and therefore, the fairness discretion did not apply. Furthermore, the court found that the admissions were not induced by an offer of an "off the record" conversation, and thus, their reliability was not adversely affected.

Ultimately, the High Court found that the admissions were properly admitted into evidence, and the convictions of the respondents were upheld. The court's decision underscores the importance of ensuring that police conduct is fair and that admissions are reliable when considering their admissibility in criminal proceedings. The final orders of the court confirmed the convictions of Simmons and Moore, and the matter was remitted to the trial court for sentencing.

Orders