Simpson v Wilson & Anor [2001] NSWSC 982

Simpson v Wilson & Anor [2001] NSWSC 982

The later common assault and ADVO contravention proceedings were not an abuse of process. Common assault and assault occasioning actual bodily harm are different offences, the plaintiff was not subjected to repeated attempts to convict because the common assault charge could have proceeded after dismissal of the s 59 charges but was adjourned on his application, the ADVO charges had not been heard, no unfair trial was suggested, and no improper purpose was shown. The plaintiff was therefore not entitled to the relief sought.

Jurisdiction
Australia
Judgment Date
02 November 2001
Procedural Posture
Criminal Law Appeal From Local Court by Way of Summons Pursuant to S 104 of the Justices Act, 1902 / Judgment on Amended Summons Seeking Quashing Orders, Prohibition and Permanent Stay
Outcome
Amended Summons dismissed.
Legal Topics
['appeal From Local Court' 'abuse of Process' 'permanent Stay' 'double Jeopardy' 'autrefois Acquit' 'common Assault' 'assault Occasioning Actual Bodily Harm' 'apprehended Domestic Violence Order Contraventions']
['criminal Law' 'criminal Procedure'] ['appeal From Local Court' 'abuse of Process' 'permanent Stay' 'double Jeopardy' 'autrefois Acquit' 'common Assault' 'assault Occasioning Actual Bodily Harm' 'apprehended Domestic Violence Order Contraventions']

Case Brief

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Procedural Posture

Criminal Law Appeal From Local Court by Way of Summons Pursuant to S 104 of the Justices Act, 1902 / Judgment on Amended Summons Seeking Quashing Orders, Prohibition and Permanent Stay

Legal Issues

  1. 1 ['Whether the Magistrate erred in refusing a permanent stay of proceedings for abuse of process.' 'Whether a subsequent common assault charge after dismissal of assault occasioning actual bodily harm charges constituted an abuse of process.' 'Whether two subsequent charges alleging contravention of Apprehended Domestic Violence Orders constituted an abuse of process.' "Whether the prosecution's conduct or failure to proceed with a backup assault charge offended principles of finality, double jeopardy or autrefois acquit."]

Ratio Decidendi

The later common assault and ADVO contravention proceedings were not an abuse of process. Common assault and assault occasioning actual bodily harm are different offences, the plaintiff was not subjected to repeated attempts to convict because the common assault charge could have proceeded after dismissal of the s 59 charges but was adjourned on his application, the ADVO charges had not been heard, no unfair trial was suggested, and no improper purpose was shown. The plaintiff was therefore not entitled to the relief sought.

Court Disposition

Amended Summons dismissed.

Orders

  • ['The Amended Summons is dismissed.' 'The plaintiff is to pay the costs of the second defendant.' 'There will be no order as to the costs of the first defendant.']