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

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

There were reasonable grounds for Mr Moore's objection because the evidence sought from him may tend to incriminate him in offences arising from Mr Russell's disappearance. However, the interests of justice required that he give evidence: Mr Simmons was on trial for murder, Mr Moore's evidence was potentially significant and probative, there were no pending charges against Mr Moore, s 128 provided direct and derivative use protection, and the judge assessed it as unlikely in the circumstances that the DPP would revisit the decision to discontinue. X7 v Australian Crime Commission did not make the examination unlawful because Mr Moore was not subject to pending criminal proceedings,...

Jurisdiction
Australia
Judgment Date
14 April 2015
Procedural Posture
Criminal Law Evidence Ruling in Murder Trial / During Trial, on Kieran Moore's Objection Under S 128 of the Evidence Act 1995 (nsw) to Giving Evidence
Outcome
Mr Moore's objection was upheld as having reasonable grounds, but he was required to give evidence and was to receive a certificate under s 128 of the Evidence Act.
Legal Topics
['privilege Against Self Incrimination' 'section 128 Certificate' 'interests of Justice' 'nolle Prosequi and Discontinuance of Proceedings' 'accusatorial Process' 'compulsory Evidence From Witness Previously Charged']
['criminal Law' 'evidence'] ['privilege Against Self Incrimination' 'section 128 Certificate' 'interests of Justice' 'nolle Prosequi and Discontinuance of Proceedings' 'accusatorial Process' 'compulsory Evidence From Witness Previously Charged']

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Procedural Posture

Criminal Law Evidence Ruling in Murder Trial / During Trial, on Kieran Moore's Objection Under S 128 of the Evidence Act 1995 (nsw) to Giving Evidence

Legal Issues

  1. 1 ["Whether there were reasonable grounds for Kieran Moore's objection that the evidence may tend to prove that he committed an offence under Australian law." 'Whether, despite reasonable grounds for the objection, the interests of justice required Mr Moore to give evidence under s 128(4) of the Evidence Act 1995 (NSW).' "Whether the DPP's decision to take no further proceedings against Mr Moore and his discharge on the indictment were final." 'Whether the principles in X7 v Australian Crime Commission prevented or weighed against requiring Mr Moore to give evidence.']

Ratio Decidendi

There were reasonable grounds for Mr Moore's objection because the evidence sought from him may tend to incriminate him in offences arising from Mr Russell's disappearance. However, the interests of justice required that he give evidence: Mr Simmons was on trial for murder, Mr Moore's evidence was potentially significant and probative, there were no pending charges against Mr Moore, s 128 provided direct and derivative use protection, and the judge assessed it as unlikely in the circumstances that the DPP would revisit the decision to discontinue. X7 v Australian Crime Commission did not make the examination unlawful because Mr Moore was not subject to pending criminal proceedings,...

Court Disposition

Mr Moore's objection was upheld as having reasonable grounds, but he was required to give evidence and was to receive a certificate under s 128 of the Evidence Act.

Orders

  • ['Pursuant to s 128(2) Evidence Act I find that there are reasonable grounds for the objection taken by Kieran Moore.' 'Pursuant to s 128(4) Evidence Act I require Mr Moore to give evidence.' 'Mr Moore will have a certificate under s 128(6) of the Evidence Act.']