R v Simmons (No 6) [2015] NSWSC 418

Supreme Court New South Wales

Medium Neutral Citation: R v Simmons (No 6) [2015] NSWSC 418 Hearing dates: 13-14 April 2015 Date of orders: 14 April 2015 Decision date: 14 April 2015 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) Pursuant to s 128(2) Evidence Act I find that there are reasonable grounds for the objection taken by Kieran Moore. (2) Pursuant to s 128(4) Evidence Act I require Mr Moore to give evidence. (3) Mr Moore will have a certificate under s 128(6) of the Evidence Act. Catchwords: CRIMINAL LAW – EVIDENCE – privilege against self-incrimination - objection by witness who was previously charged as an accessory – finality of decision by DPP to discontinue proceedings – decision not final – application of High Court decision in X7 v Australian Crime Commission to s 128 Evidence Act – whether in the interests of justice to require witness to give evidence – relevant considerations – protection afforded by certificate – potential of ruling to fundamentally alter accusatorial process – no pending criminal proceedings – reasonable grounds for objection but witness required to give evidence – certificate granted Legislation Cited: Evidence Act 1995 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW) Crimes Act 1900 (NSW) National Crime Authority Act 1985 (Cth) Australian Crime Commission Act 2002 (Cth) Cases Cited: Beckett v State of New of New South Wales [2013] HCA 17 Lee v Australian Crime Commission [2013] HCA 39; 87 ALJR 1082 Lee v The Queen [2014] HCA 20 R v Burrell [2004] NSWCCA 185 R v BWM (1997) 91 A Crim R 260 R v Filimoehala [2003] NSWCCA 37 R v Mellifont (1992) 64 A Crim R 75 R v Ohar [2004] NSWCCA 83 R v Seller & McCarthy [2013] NSWCCA 42 R v Simmons (No 5) (Non-Publication Orders) [2015] NSWSC 333 R v Simmons; R v Moore (No 2) [2015] NSWSC 143 R v Simmons; R v Moore (No 3) [2015] NSWSC 189 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 R v X [2014] NSWCCA 168 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 X7 v R [2014] NSWCCA 273 Texts Cited: Weinberg, Justice Mark, 'The impact of special commissions of inquiry/crime commissions of criminal trials' (2015) 12(2) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales 199. Category: Procedural and other rulings Parties: Crown Tony James Simmons (Accused) Kieran Moore (Witness) Representation: Counsel: P Barrett (Crown) P Young SC (Simmons) J Stratton SC (Moore, intervening)