Simmons v R (No 2) [2020] NSWCCA 29

Simmons v R (No 2) [2020] NSWCCA 29

Leave to vary or set aside the Court’s orders under r 50C was refused because (1) the proportionality ground (ground 3) was properly treated as dependent on other grounds by the applicant’s concession through counsel, binding the applicant, and was covered by the Court’s reasoning; (2) the factual error adopted from the Crown submissions was not material to the outcome of the appeal as it did not affect the grounds regarding manifest excess or proportionality, and thus did not justify re-opening or varying the orders.

Parties
Applicant: Fletcher Simmons; Respondent: Regina
Jurisdiction
Australia
Judgment Date
04 March 2020
Procedural Posture
Criminal Appeal / Application for Leave to Vary or Set Aside Previous Orders (r 50 C Criminal Appeal Rules)
Outcome
Application for leave to vary or set aside previous orders refused
Legal Topics
Application to Vary or Set Aside Order, Grounds of Appeal, Concessions by Counsel, Material Error Requirement
Criminal Law Appellate Procedure Application to Vary or Set Aside Order Grounds of Appeal Concessions by Counsel Material Error Requirement

Case Brief

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Parties

Fletcher Simmons

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Vary or Set Aside Previous Orders (r 50 C Criminal Appeal Rules)

Legal Issues

  1. 1 Whether failure to address a ground of appeal justifies leave to vary or set aside an order under r 50C
  2. 2 Whether an error in fact adopted from Crown submissions was material to the outcome

Ratio Decidendi

Leave to vary or set aside the Court’s orders under r 50C was refused because (1) the proportionality ground (ground 3) was properly treated as dependent on other grounds by the applicant’s concession through counsel, binding the applicant, and was covered by the Court’s reasoning; (2) the factual error adopted from the Crown submissions was not material to the outcome of the appeal as it did not affect the grounds regarding manifest excess or proportionality, and thus did not justify re-opening or varying the orders.

Court Disposition

Application for leave to vary or set aside previous orders refused

Orders

  • Application for leave pursuant to r 50C of the Criminal Appeal Rules (NSW) to vary the orders entered by the Court of Criminal Appeal on 14 February 2020 refused.