Simmons v Director of Public Prosecutions [2009] NSWSC 1062

Simmons v Director of Public Prosecutions [2009] NSWSC 1062

Although the Magistrate had all three charges before her and the evidence allowed a finding on common assault, Mr Simmons' legal representatives reasonably misunderstood, from the way the common assault was described and handled as a back-up charge and from the absence of submissions or cross-examination directed to the broader assault allegation, that the common assault charge would not be determined except on the particularised kicking allegation or until after the primary charge. Because the Local Court did not ensure that Mr Simmons had an opportunity to deal with the different conduct relied on for common assault, he was denied procedural fairness, requiring the conviction and...

Jurisdiction
Australia
Judgment Date
07 October 2009
Procedural Posture
Criminal Law Appeal From Local Court Conviction and Sentence / Application for Leave to Appeal and Appeal in the Supreme Court of New South Wales, Common Law Division
Outcome
Leave to appeal granted; appeal upheld; Local Court conviction and sentence set aside; common assault charge remitted to the Local Court for redetermination; no order for costs.
Legal Topics
['common Assault' 'back Up Charge' 'procedural Fairness' 'natural Justice' 'leave to Appeal' 'sentencing']
['criminal Law' 'criminal Procedure' 'administrative Law'] ['common Assault' 'back Up Charge' 'procedural Fairness' 'natural Justice' 'leave to Appeal' 'sentencing']

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Procedural Posture

Criminal Law Appeal From Local Court Conviction and Sentence / Application for Leave to Appeal and Appeal in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ['Whether Mr Simmons was denied procedural fairness when the Local Court determined the common assault charge as a back-up charge without ensuring he had an opportunity to address and present his case on that charge.' 'Whether leave to appeal was required because the alleged denial of procedural fairness was not a question of law alone.' 'Whether the conviction and sentence for common assault should be set aside and the matter remitted.']

Ratio Decidendi

Although the Magistrate had all three charges before her and the evidence allowed a finding on common assault, Mr Simmons' legal representatives reasonably misunderstood, from the way the common assault was described and handled as a back-up charge and from the absence of submissions or cross-examination directed to the broader assault allegation, that the common assault charge would not be determined except on the particularised kicking allegation or until after the primary charge. Because the Local Court did not ensure that Mr Simmons had an opportunity to deal with the different conduct relied on for common assault, he was denied procedural fairness, requiring the conviction and...

Court Disposition

Leave to appeal granted; appeal upheld; Local Court conviction and sentence set aside; common assault charge remitted to the Local Court for redetermination; no order for costs.

Orders

  • ['Leave to appeal against the conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be granted;' 'The appeal be upheld;' 'The conviction and sentence imposed by the Local Court on Mr Alexander Simmons on 16 February 2009 be set aside;' 'The matter of the charge against Mr...