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 refusedLegislation 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 46Category: 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…
Continue reading Simmons v The Queen (No 2)
Sign in free to access the full text
- AGLC
- Simmons v The Queen (No 2) [2020] NSWCCA 29
- Case
- [2020] NSWCCA 29
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.