Simring v Registrar, Court of Criminal Appeal [2004] NSWSC 297

New South Wales Supreme Court

CITATION : Simring v Registrar, Court of Criminal Appeal [2004] NSWSC 297 HEARING DATE(S) : Monday 5 April 2004 JUDGMENT DATE : 5 April 2004

JUDGMENT OF : Simpson J DECISION : Summons dismissed

CATCHWORDS : prior appeal to Court of Criminal Appeal - jurisdiction - no second appeal to Court of Criminal Appeal LEGISLATION CITED : Supreme Court Rules Part 13 Rule 5 CASES CITED : Grierson v The Queen (1938) 60 CLR 431 R v GS [2002] NSWCCA 4 PARTIES : Gene Simring - Plaintiff Registrar, Court of Criminal Appeal - Defendant FILE NUMBER(S) : SC 10651/04 COUNSEL : SOLICITORS : Plaintiff in person J Shevlin for Crown Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Monday 5 April 2004

10651/04 Gene SIMRING v REGISTRAR, COURT OF CRIMINAL APPEAL

JUDGMENT

1 HER HONOUR: By summons filed in this Court on 8 March 2004 the plaintiff, Gene Simring, seeks orders in the following terms: "That 1. The Registrar of the Court of Criminal Appeal in Sydney register the appeal put forward by the Plaintiff, and 2. The Registrar of the Court of Criminal Appeal put the above appeal before the Court of Criminal Appeal in Sydney for consideration." 2 He supports his application by an affidavit sworn by himself on 23 February 2004, and filed with the summons. Annexed to that are a number of documents, including submissions, which include submissions which, if the plaintiff is successful in this summons, will be put before the Court of Criminal Appeal. 3 When the matter was called on for hearing today, the plaintiff put before me an outline of submissions directed to the issues before me today. The defendant was given leave to file in court a notice of motion seeking the following orders: "1 The Plaintiff's summons be dismissed or stayed pursuant to Part 13 rule 5 of the Supreme Court Rules on the grounds that either no reasonable cause of action is disclosed in the summons or the proceedings are frivolous or vexatious or the proceedings are an abuse of the process of the Court. 2 The Plaintiff's summons be dismissed or stayed pursuant to Part 15 rule 26 of the Supreme Court Rules on the ground that either no reasonable cause of action is disclosed in the summons or the claims sought in the summons cannot succeed or the proceedings are an abuse of the Court. 3 Costs 4 Such other orders as the Court sees fit." 4 The essence of the plaintiff's claim is dependent upon these facts. The plaintiff was convicted of a number of counts of sexual misconduct, said to have occurred over a period between 1974 and 1988. He appealed to the Court of Criminal Appeal and the appeal was dismissed on 1 February 2002 in a judgment under the name of R v GS [2002] NSWCCA 4. The plaintiff was represented in the appeal by counsel. 5 He sought special leave to appeal to the High Court, but that application was dismissed. The plaintiff now seeks to appeal to the Court of Criminal Appeal a second time, this time raising different grounds, grounds that he says could have been, but were not, raised in the original appeal. 6 The plaintiff has conducted his own research into the law, although, as he pointed out to me, he has been hampered in this by limitations on his access to legal materials. Nevertheless, he is aware of those authorities which hold that on completion of an appeal to the Court of Criminal Appeal, that Court is deprived of jurisdiction to entertain a further appeal. 7 The plaintiff sought to distinguish the authorities, of which one is Grierson v The Queen (1938) 60 CLR 431, by pointing out that the grounds he now seeks to raise are different to those which were formerly raised. He therefore argued that his case is not caught by the principles stated in Grierson and other cases. 8 It might be true that these grounds were not raised in the earlier appeal, but that does not mean that the merits of the plaintiff's appeal have not been finally determined by the judgment of the Court of Criminal Appeal. Accordingly, it is correct, as the plaintiff has been told, that the Court of Criminal Appeal has no jurisdiction to entertain the appeal he now seeks to bring. 9 In those circumstances, the contentions made on behalf of the defendant that the summons is without any prospects of success must be accepted. There is no jurisdiction in the Court of Criminal Appeal to hear the appeal sought to be advanced now. The summons should be dismissed pursuant to Part 13 Rule 5 of the Supreme Court Rules and I so order.