R v Simmons; R v Moore (No 2) [2015] NSWSC 143

Supreme Court New South Wales

Medium Neutral Citation: R v Simmons; R v Moore (No 2) [2015] NSWSC 143 Hearing dates: 16, 20, 23-27 February 2015 Date of orders: 04 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) The relevant parts of the conversation recorded on 6 December 2012 and the admissions made by the accused on 9, 15 and 16 January 2013 are admissible. (2) I direct the parties to liaise with one another in an effort to reach agreement as to the form and content of the remaining parts of the evidence recorded by surveillance device. That direction will apply whether the trial be by jury or by Judge sitting alone. (3) The un-redacted version of this judgment is to be available to judicial officers, their staff and legal practitioners as a restricted judgment on the Judicial Information Research System (JIRS) in accordance with the protocols established by the Judicial Commission. Catchwords: CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – covert investigation using "scenario technique" – [REDACTED] – accused makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police "elicited" admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind – [REDACTED] – discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude – whether prejudicial material severable – belated indication of application for trial by judge alone Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Controlled Operations) Act 1997 (NSW) Surveillance Devices Act 2007 (NSW) Cases Cited: Cleland v The Queen [1982] HCA 67; 151 CLR 1 Donai v R [2011] NSWCCA 173 Dowe v R [2009] NSWCCA 23 DSJ v R; NS v R [2012] NSWCCA 9 Duke v The Queen [1989] HCA 1; 63 ALJR 139 Dupas v The Queen [2012] VSCA 328 Em v Queen [2007] HCA 46; 232 CLR 67 Foster v The Queen [1983] HCA 80; 67 ALJR 550 Gedeon v R [2013] NSWCCA 257 J v Tasmania [2011] TASCCA 7 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452 Pollard v The Queen [1992] HCA 69; 176 CLR 177 R v Barbouttis (1995) 37 NSWLR 256 R v Burton [2013] NSWCCA 335 R v Cook [2004] NSWCCA 52 R v Cowan [2013] QSC 337 R v Dalley [2002] NSWCCA 284 R v DF [2014] NSWDC 149 R v Fletcher [2005] NSWCCA 338 R v LDV (No 2) [2013] NSWDC 215 R v McCoy [2001] NSWCCA 255 R v MM [2004] NSWCCA 364 R v Mundine [2008] NSWCCA 55 R v Phan [2001] NSWCCA 29; 53 NSWLR 480 R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 The Queen v Swaffield [1998] HCA 1; 192 CLR 159 Tofilau v The Queen [2007] HCA 39; 231 CLR 396 Texts Cited: Odger's Uniform Evidence Law (11th Edition) JD Heydon, 'Is the Weight of Evidence Material to its Admissibility?' (delivered at 2014 Paul Byrne SC Memorial Lecture, University of Sydney, 15 October 2014) Category: Procedural and other rulings Parties: Crown Tony James Simmons (Accused) Kieran Moore (Accused) Representation: Counsel: P Barrett (Crown) P Young SC (Simmons) J Stratton SC (Moore)