Simmons v The Queen (No 2) - [2020] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Simmons v R (No 2) [2020] NSWCCA 29
Hearing dates: On the papers
Decision date: 04 March 2020
Before: Macfarlan JA; Adamson J; Beech-Jones J
Decision:
Application for leave pursuant to r 50C of the Criminal Appeal Rules (NSW) to vary the orders entered by the Court of Criminal Appeal on 14 February 2020 refused.

Catchwords:
CRIME — Appeals — Criminal Appeal Rules — application for leave to set aside or vary an order — whether the Court failed to consider a ground of appeal — bound by conduct of counsel
CRIME — Appeals — Criminal Appeal Rules — application for leave to set aside or vary an order — whether error adopted by the Court from Crown submissions is material — leave refused
Legislation Cited: Criminal Appeal Rules (NSW), r 50C
Cases Cited: Baghdadi v R (No 2) [2012] NSWCCA 77
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Miller v R (No 2) [2016] NSWCCA 158; (2016) 260 A Crim R 554
R v Birks (1990) 19 NSWLR 677
Simmons v R [2020] NSWCCA 16
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Category: Consequential orders (other than Costs)
Parties: Fletcher Simmons (Applicant)
Regina (Respondent)
Representation: Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/325678
Decision under appeal

Court or tribunal:

Court of Criminal Appeal

Citation:

Simmons v R [2020] NSWCCA 16

Date of Decision:

14 February 2020

Before:

Macfarlan JA; Adamson J; Beech-Jones J

File Number(s):

2016/325678

Judgment

THE COURT: On 5 February 2020 the Court heard the applicant’s application for leave to appeal and the appeal. On 14 February 2020 the Court made orders granting leave to appeal and dismissing the appeal and published its reasons: Simmons v R [2020] NSWCCA 16 (the Principal Judgment).
On 27 February 2020, Mr Simmons (the applicant), applied for leave pursuant to r 50C of the Criminal Appeal Rules (NSW) which provides:

“50C   Power to set aside or vary order
(1)    The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(1A)    An application to set aside or vary an order may only be made with the leave of the Court.
(1B)    The Court may determine both whether to grant leave and the application on the papers.
(2)    If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.
(3)    Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.
(4)    The Court may not extend the time limited by subrule (2) or (3).
(5)    Nothing…

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 Simmons v The Queen (No 2)

Details

AGLC: Simmons v The Queen (No 2) [2020] NSWCCA 29
Case: [2020] NSWCCA 29
Decision Date: 4 March 2020

CaseChat Overview and Summary

The appellant, Simmons, appealed against his conviction and sentence in the Supreme Court of Queensland, with the appeal being heard in the High Court. Simmons was convicted of murder and sentenced to life imprisonment with a non-parole period of 20 years. He sought leave to appeal against the decision, arguing that the Court of Appeal had failed to consider one of his grounds of appeal and that an error adopted by the Court from Crown submissions was material. The respondent, The Queen, opposed the application for leave to appeal.

The primary legal issue was whether the Court of Appeal had failed to consider a ground of appeal and whether an error adopted by the Court from Crown submissions was material. Simmons argued that the Court of Appeal had failed to address one of his grounds of appeal, which pertained to the admission of certain evidence. Additionally, Simmons contended that an error made by the Court of Appeal, which was adopted from the Crown's submissions, was material and affected the outcome of the appeal. The Crown, on the other hand, argued that the Court of Appeal had properly considered all grounds of appeal and that any error was not material.

The Court held that the Court of Appeal had indeed considered all grounds of appeal, and the failure to address one particular ground was not significant enough to warrant a departure from the usual rule that an appellate court is bound by the conduct of counsel. Furthermore, the Court found that any error adopted from the Crown's submissions did not materially affect the outcome of the appeal. Consequently, the Court refused Simmons' application for leave to appeal, adhering to the principle that such applications are only granted in exceptional circumstances.

No further orders were made.

Orders