Da Silva v The Queen - [2012] NSWCCA 129

Court of Criminal Appeal

New South Wales

Case Title: Da Silva v R

Medium Neutral Citation: [2012] NSWCCA 129

Hearing Date(s): 9 May 2012; reasons 29/05/2012

Decision Date: 09 May 2012

Before: Whealy JA, Hidden J, Schmidt J

Decision:
(1) An order that the time for bringing the applicant's appeal be extended.

(2) An order that the two convictions against the appellant be set aside.

(3) An order that there be a new trial on both counts in the indictment.

Catchwords: CRIMINAL LAW - appeal - conviction - miscarriage of justice - fresh evidence - statements not known to accused at time of trial - statements made after trial by Crown witness - likelihood that jury would have arrived at a different verdict.

Cases Cited: - R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417

Category: Principal judgment

Parties: Rodney Rodrigues Da Silva (Applicant)
Crown (Respondent)

Representation

- Counsel: Counsel:
Dr S. Bogan (Applicant)
Ms N. Noman (Respondent)
I.D. Bourke (Intervenor: NSW Commissioner of Police)

- Solicitors: Solicitors:
CrimLaw (NSW) Pty Ltd (Applicant)
Director of Public Prosecutions (Respondent)
Crown Solicitor's Office (Intervenor)

File Number(s): 2007/009452

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Woods QC DCJ

- Date of Decision: 18 June 2010

JUDGMENT

THE COURT: On 9 May 2012, this Court heard an appeal by Rodney Rodrigues Da Silva ("the appellant") against his conviction, and a Crown appeal asserting manifest inadequacy in the sentence imposed upon him.
At the conclusion of the hearing, the Court made the following orders:
(1) An order that the time for bringing the applicant's appeal be extended.
(2) An order that the two convictions against the appellant be set aside.
(3) An order that there be a new trial on both counts in the indictment.
Later on the same day, in Chambers, the Court dismissed the Crown appeal against sentence. These are the reasons of the Court for the orders that were made.

The trial

On 11 November 2009, an indictment was presented against the appellant which contained the following two counts:
(1) On 27 December 2006 at Belmont in the State of New South Wales, being armed with an offensive weapon, namely a shotgun, [he] robbed David Reid of a sum of money, at the property of Belmont North Meats and immediately before such robbery wounded David Reid.
(2) On 27 December 2006 at Belmont in the State of New South Wales, being armed with a dangerous weapon, namely a shotgun, robbed Christine Huber of a sum of money, at the property Belmont North Meats.
The trial ran through until 3 December 2009, when the jury retired to consider its verdict. The next day, it returned verdicts of guilty on both counts.
The Crown case was that on 27 December 2006 at approximately 3.40am an armed robbery had been carried out at the home of David Reid and Christine Huber. Mr Reid was shot twice, sustaining very serious injuries, and Ms Huber was threatened with a…

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 [2012] NSWCCA 129
Case: [2012] NSWCCA 129
Decision Date: 09 May 2012

CaseChat Overview and Summary

The case of Da Silva v The Queen involved the appellant, who had been convicted of a serious criminal offence, appealing against the conviction on the grounds of a miscarriage of justice. The appeal was based on fresh evidence, specifically statements made by a Crown witness after the trial, which were not known to the accused at the time. The appellant argued that the jury would likely have reached a different verdict had they been aware of this evidence. The appeal was heard by the High Court of Australia.

The legal issues central to this appeal revolved around the criteria for admitting fresh evidence in criminal cases and the impact of such evidence on the outcome of a trial. The court needed to determine whether the new statements from the Crown witness constituted fresh evidence that was both material and could have reasonably affected the jury's decision. Additionally, the court had to consider whether the admission of this evidence could lead to a miscarriage of justice by altering the outcome of the trial.

The High Court held that the new statements from the witness were indeed fresh evidence that had not been available at the time of the trial. The court found that these statements were material to the case and could have reasonably influenced the jury's verdict. Given the significance of the evidence and the likelihood that it would have led to a different outcome, the court concluded that a miscarriage of justice had occurred. Consequently, the conviction was quashed, and a new trial was ordered.

Orders