Da Silva v The Queen - [2016] NSWCCA 40

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Da Silva v R
Medium Neutral Citation:	[2016] NSWCCA 40
Hearing Date(s):	11 March 2016
Decision Date:	11 March 2016
Before:	Basten JA at [1]; R A Hulme J at [30]; Button J at [31]
Decision:	(1) Extend the time for lodging an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act from the judgment of Johnson J delivered on 14 December 2015. (2) Refuse leave to appeal.
Catchwords:	APPEAL – bias – interlocutory appeal – pre-trial management in relation to trial on indictment – judge drew authorities to parties’ attention before hearing – whether that conduct indicated pre-judgment PRACTICE AND PROCEDURE – criminal appeal – application to stay trial pending committal hearing – committal hearing waived – application to waive signed by applicant’s solicitor – DPP finds bill – applicant arraigned – no indication as to purpose of committal – whether application futile – Criminal Procedure Act 1986 (NSW), s 68, s 91 PRACTICE AND PROCEDURE – criminal appeal – application for change of venue due to pre-trial publicity – whether jury selection likely to fail to produce impartial jury - Jury Act 1977 (NSW), s 38; Criminal Procedure Act 1986, s 30
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 30, 68 Jury Act 1977 (NSW), s 38
Cases Cited:	Barron v Attorney General (1987) 10 NSWLR 215 Barton v The Queen (1980) 147 CLR 75 Crowe v Director of Public Prosecutions (NSW) [2015] NSWSC 747 Hiroti v The Queen [1997] NTSC 103; 140 FLR 366; 95 A Crim R 72 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Potier v Magistrate Maloney [2005] NSWSC 336 R v Rawlinson [2013] NSWSC 1722 Sergi v Director of Public Prosecutions (Court of Appeal, unrep, 10 September 1991)
Category:	Principal judgment
Parties:	Ricardo Francis Herman Da Silva (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant self-represented Mr E Balodis (Respondent) Solicitors: Applicant self-represented Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/361049
Decision under appeal:
Court or Tribunal:	Supreme Court
Jurisdiction:	Common Law Division
Citation:	[2015] NSWSC 1909
Date of Decision:	14 December 2015
Before:	Johnson J
File Number(s):	2013/361049

JUDGMENT

BASTEN JA: The applicant, Ricardo Da Silva, is due to stand trial for murder, commencing on 26 April 2016 in the Supreme Court at Newcastle. On 8 December 2015 he filed a motion seeking orders that the trial date be vacated and the matter remitted to the Local Court for a committal hearing and otherwise that the venue for the trial be changed from Newcastle to Sydney. On 14 December 2015 Johnson J dismissed the motion.[1] The applicant has sought leave to appeal from the order dismissing the notice of motion.
[1] R v Dasilva [2015] NSWSC 1909.
Pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) an accused person in proceedings for prosecution on indictment in the Supreme Court has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Da Silva v The Queen

Details

AGLC: Da Silva v The Queen [2016] NSWCCA 40
Case: [2016] NSWCCA 40
Decision Date: 11 March 2016

CaseChat Overview and Summary

The appeal by Da Silva against the decision of the Supreme Court of New South Wales in the case of The Queen v Da Silva involved the defendant's challenge to the trial process on the grounds of alleged bias by the trial judge. The case was heard in the Court of Criminal Appeal of New South Wales. Da Silva contested the validity of the trial proceedings, arguing that the trial judge's actions prior to the hearing indicated a pre-judgment on the case.

The court was tasked with determining whether the trial judge's conduct, specifically drawing authorities to the parties' attention before the hearing, constituted a demonstration of pre-judgment and thus warranted a stay of the trial. Additionally, the court had to consider the procedural validity of the trial process, including the waiver of the committal hearing and the subsequent arraignment of the defendant. The relevance of the application to stay the trial pending a committal hearing, the legality of the waiver signed by the applicant's solicitor, and the decision of the Director of Public Prosecutions to proceed with the bill were central to the legal issues at hand.

In its reasoning, the Court of Criminal Appeal noted that the application to stay the trial was deemed futile as the committal hearing had already been waived by the applicant. The court emphasised that the application was signed by the applicant's solicitor and that there was no indication as to the purpose of the committal. The court found no basis for the claim of bias by the trial judge and dismissed the appeal, affirming the trial's procedural integrity. Consequently, the appeal was unsuccessful, and the trial proceeded as scheduled.

No further orders were made by the Court of Criminal Appeal beyond the dismissal of the appeal. The trial continued in the Supreme Court as planned, with the procedural matters determined by the appeal court being upheld.

Orders