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Simpson v R

Simpson v R

Case [2021] NSWCCA 264 10 November 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Simpson v R [2021] NSWCCA 264
Hearing dates: 25 October 2021
Date of orders: 10 November 2021
Decision date: 10 November 2021
Before: Harrison J at [1]
Davies J at [2]
Dhanji J at [8]
Decision:
Bail granted with conditions.

Catchwords:
CRIME – bail – de novo application before the Court of Criminal Appeal – bail sought in relation to federal and state offences – Commonwealth offences of unlawful export and possession of various protected species – fraud offences contrary to state legislation – appearance of two Crown prosecutors – potential unfairness in cross-jurisdictional opposition to bail – protracted criminal record dating back to 1988 – strong Crown case – applicant likely to spend a significant period in custody if convicted – COVID-19 considerations – offences not show cause – bail risks sufficiently ameliorated by stringent conditions

Legislation Cited:
Bail Act 2013 (NSW), ss, 7, 17, 18, 19, 21, 31, 49, 67, 75
Biodiversity Conservation Act 2016 (NSW), s 2.5
Crimes Act 1900 (NSW), ss 178BA, 192E, 192J,192K, 192L
Crown Prosecutors Act 1986 (NSW), ss 3, 5, 7
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Criminal Code (Cth), ss 11.1, 11.2
Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303CA, 303CD, 303DA, 303DD, 303EA, 303EK

Cases Cited:
Cargnello v Director of Public Prosecutions (Cth) (2012) 224 A Crim R 204; [2012] NSWCCA 162
Chau v DPP (1995) 37 NSWLR 639
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; [1992] HCA 64
Clumpoint v Director of Public Prosecutions (Qld) [2005] QCA 43
Director of Public Prosecutions (NSW) v Dagdanasar [2016] NSWSC 1089
Director of Public Prosecutions v Hills (No 8) [2010] VSC 596
Director of Public Prosecutions v Hing [2017] NSWCCA 325
Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
Flower v R [2020] NSWCCA 64
JM v R [2015] NSWSC 978
M v R [2015] NSWSC 138
Plassaras v DPP (NSW) [2018] NSWCCA 218
Popovic v R [2017] NSWCCA 118
R v David Peter Cain (No.1) (2001) 121 A Crim R 365; (2001) NSWSC 116
R v Farrell [2015] NSWSC 1082
R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242
R v Kugor [2015] NSWCCA 14
R v Simpson (Supreme Court (NSW), Hidden AJ, 12 October 2020, unrep)
R v Simpson (Supreme Court (NSW), N Adams J, 15 June 2021, unrep)
R v Xi [2015] NSWSC 1575
Rakielbakhour v DPP [2020] NSWSC 323
Shalala v R [2012] NSWSC 351
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50

Category: Principal judgment
Parties: Neil Andrew Simpson (Applicant) (Self-Represented)
Regina (Crown)
Representation:
Counsel:
N Evans (Commonwealth Director of Public Prosecutions)
C Dodds (Director of Public Prosecutions NSW)
Solicitors:
Commonwealth Director of Public Prosecutions
Solicitor for Public Prosecutions (NSW)

File Number(s): 2021/194286
Publication restriction: Nil

Judgment

HARRISON J: I agree that the…

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 Simpson v R

Details

AGLC: Simpson v R [2021] NSWCCA 264
Case: [2021] NSWCCA 264
Decision Date: 10 November 2021

CaseChat Overview and Summary

Simpson v R involved an application for bail made by the defendant, Simpson, in the Court of Criminal Appeal. Simpson sought bail in relation to both federal and state offences. The federal offences involved the unlawful export and possession of protected species, while the state offences related to fraud. The application was heard de novo, with two Crown prosecutors appearing to oppose the application. The key issues before the court were whether the applicant should be granted bail, considering the cross-jurisdictional opposition and the potential unfairness it presented, as well as the applicant's criminal history and the strength of the prosecution case.

The court considered the significant criminal history of the applicant, dating back to 1988, and the potential consequences of conviction, which would likely result in a lengthy period of imprisonment. The court also took into account the strong evidence against the applicant, which made the prospects of success at trial appear favourable to the prosecution. Additionally, the court acknowledged the need to balance the applicant's right to liberty against the risk of reoffending and the impact of COVID-19 on the prison system. The court found that the applicant's risk of reoffending was mitigated by the stringent bail conditions that were proposed, which included electronic monitoring and strict reporting requirements.

In light of the above considerations, the court concluded that the applicant had made out a sufficient case for bail. The court was satisfied that the stringent bail conditions were sufficient to address the risk of reoffending and that the applicant's rights to a fair trial were not compromised by the cross-jurisdictional opposition to the application. The court granted the application for bail, subject to the conditions proposed by the applicant.

Orders