Simmons v Director of Public Prosecutions [2009] NSWSC 1062

Reported Decision : 75 NSWLR 453

New South Wales Supreme Court

CITATION : Simmons v Director of Public Prosecutions [2009] NSWSC 1062

HEARING DATE(S) : 5 June 2009

JUDGMENT DATE : 7 October 2009

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

(i) Leave to appeal against the conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be granted;

(ii) The appeal be upheld;

DECISION : (iii) The conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be set aside;

(iv) The matter of the charge against Mr Alexander Simmons for common assault, in contravention of s 61 of the Crimes Act 1900, be remitted to the Local Court sitting at the Downing Centre for redetermination, in accordance with law;

(v) Pursuant to s 70 of the Crimes (Appeal and Review) Act 2001, there be no order for costs.

CATCHWORDS : CRIMINAL LAW – appeal – back-up charge before Local Court – defendant unaware that back-up charge to be determined – denial of natural justice – magistrate not informed of understanding of the defendant – misunderstanding – denial of natural justice – conviction quashed

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900

CATEGORY : Principal judgment

Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 R v Abboud [2005] NSWCCA 251 CASES CITED : R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82