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R v Simmons; R v Moore (No 4)

R v Simmons; R v Moore (No 4)

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Case Copied 19 March 2015 65 min read

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Supreme Court

New South Wales

Case Name:	R v Simmons; R v Moore (No 4)
Medium Neutral Citation:	[2015] NSWSC 259
Hearing Date(s):	9-10, 18 March 2015
Date of Orders:	19 March 2015
Decision Date:	19 March 2015
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	(1) Leave pursuant to s 132A Criminal Procedure Act 1986 (NSW) is granted. (2) Order that the accused is to be tried by judge alone pursuant to s 132 Criminal Procedure Act 1986 (NSW). (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 – trial by judge alone – application out of time – whether leave should be granted – appearance of judge shopping – unedifying spectacle – no judge shopping in present case – leave granted – “interests of justice” – factors to be taken into account – whether the issue of intention requires the application of objective community standards – whether jury has advantage over judge in assessing issues of credibility – jury as “the lamp that shows that freedom lives” – prejudicial evidence – where accused required to introduce evidence to conduct his defence – whether direction to jury capable of curing prejudice – “judicial wishful thinking” – application granted
Legislation Cited:	Criminal Procedure Act 1986 (NSW)
Cases Cited:	AK v Western Australia [2008] HCA 8; 232 CLR 438 Arthurs v Western Australia [2007] WASC 182 Brown v R [1986] HCA 11; 160 CLR 171 Coates v Western Australia [2009] WASCA 142 Donai v R [2011] NSWCCA 173 Doney v The Queen [1990] HCA 51; 171 CLR 207 Elomar, Hasan, Cheikho and Jamal v R [2014] NSWCCA 303 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Hawi v R [2014] NSWCCA 83 Kingswell v R [1985] HCA 72; 159 CLR 264 Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 Makarov v R (No 3) [2008] NSWCCA 293 Murphy v R [1989] HCA 28; 167 CLR 94 R v Abrahams [2013] NSWSC 729 R v Annakin (1987) 17 NSWLR 202 R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 R v Coles (1993) 31 NSWLR 550 R v Dean [2013] NSWSC 661 R v Fardon [2010] QCA 317 R v Farrow [2014] NSWSC 1781 R v Gittany [2013] NSWSC 1503 R v Glennon [1992] HCA 16; 173 CLR 592 R v GSR (3) [2011] NSWDC 17 R v King [2013] NSWSC 448 R v Markou [2011] NSWDC 25 R v McKnight [2014] NSWSC 398 R v Perry (1993) 29 NSWLR 589 R v Simmons; R v Moore (No 2) [2015] NSWSC 143 R v Simmons; R v Moore (No 3) [2015] NSWSC 189 R v Stanley [2013] NSWCCA 124 R v Tasich [2012] NSWDC 96 R v Villalon [2013] NSWSC 1516 R…

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 259
Decision Date: 19 March 2015

CaseChat Overview and Summary

The case involved two defendants, Simmons and Moore, who were charged with various criminal offences. They applied for their cases to be heard by a judge alone, out of time, and sought leave to do so. The applications were heard in the Supreme Court of Victoria. The central legal issues before the court were whether the defendants' applications were made in a manner that suggested they were seeking to avoid a jury trial and whether the applications should be granted on the basis that it was in the interests of justice to do so.
The court held that while the applications were indeed out of time, and there was an appearance of judge shopping, the defendants were not engaging in judge shopping in the present case. The court found that the defendants' applications were not an unedifying spectacle and that the applications should be granted in the interests of justice. The court outlined the factors to be taken into account when considering whether an issue of intention required the application of objective community standards and whether a jury had an advantage over a judge in assessing issues of credibility. The court also discussed the role of the jury as "the lamp that shows that freedom lives" and the prejudicial nature of the evidence that the accused were required to introduce to conduct their defence. The court held that a direction to the jury was not capable of curing the prejudice caused by the evidence and that the applications should be granted to avoid "judicial wishful thinking."

The court granted the applications and ordered that the cases be heard by a judge alone. The court emphasised the importance of ensuring that justice is served in a manner that upholds the principles of fairness and the rule of law. The court also noted that the decision was not intended to set a precedent for future cases but was made on the specific facts and circumstances of the present case. The final orders of the court reflected the outcome of the legal issues decided in the case and provided guidance for the proceedings that were to follow.

Orders