SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0005
| SENAKA ROHAN DE SILVA | Appellant |
| v | |
| THE QUEEN | |
| Respondent |
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| JUDGES | PRIEST and COGHLAN JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 November 2013 |
| DATE OF JUDGMENT | 28 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 339 |
| JUDGMENT APPEALED FROM | DPP v DeSilva (Judge Lawson, County Court of Victoria at Melbourne, 19 December 2012) |
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CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against a child under the age of 16 years – Whether trial miscarried because of counsel’s failure to adduce evidence of the appellant’s good character - Whether trial miscarried because of counsel’s failure to object to evidence of an expert – Crown concession – Appeal allowed – Convictions quashed and retrial ordered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr T Danos | Robert Stary Lawyers |
| For the Crown | Mr C T Carr | Mr C Hyland, Solicitor for Public Prosecutions |
PRIEST JA
COGHLAN JA
LASRY AJA
Introduction
When this matter came on for hearing on 25 November 2013, the respondent properly and fairly conceded error had been shown and that the appeal should succeed on grounds 1 and 2. The Court was of the view that the concession was properly made and should be acted upon. Thus the Court made orders that the application for leave to appeal against conviction be granted; the appeal be treated as instituted instanter and allowed; the convictions and sentences be set aside; and there be a new trial.
These are the Court’s reasons for those orders.
Convictions and sentence
On 11 September 2012, following a ten day trial, the appellant was found guilty by a jury in the County Court of two charges of sexual penetration of a child under 16[1] (charges 1 and 9), and five charges of indecent act with or in the presence of a child under 16[2] (charges 2, 5, 10, 11 and 13). All verdicts, save for that on charge 13, were by a majority. Directed verdicts of acquittal were entered on six charges (charges 12, 14, 17, 18, 19 and 20).[3]
[1]Crimes Act 1958, s 45(1).
[2]Crimes Act 1958, s 47(1).
[3]Criminal Procedure Act 2009, s 241(2)(b).
The jury were unable to reach verdicts on 14 charges (charges 3, 4, 6, 7, 8, 15, 16 and 21 to 27). A Notice of Discontinuance with respect to those charges was filed on 17 September 2012.[4]
[4]Criminal Procedure Act 2009, s 177(1)(b).
On 19 December 2012, the trial judge imposed a total effective sentence of eight years and six months’ imprisonment upon which she fixed a non-parole period of six years.
Overview
The offences were alleged to have occurred on various occasions between 16 December 1997 and 31 January 2000. ML, the complainant, was aged between 9 and 12 years during that period, and the appellant was aged 44 to 46. The appellant was a friend of ML’s father. They had regular contact…
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- AGLC
- De Silva v The Queen [2013] VSCA 339
- Case
- [2013] VSCA 339
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the trial had miscarried due to counsel’s failure to present evidence of the appellant’s good character and their failure to object to the expert evidence. The appellant argued that the absence of character evidence deprived him of a fair trial, while the prosecution conceded that the trial was flawed due to these errors. The court had to assess the impact of these errors on the fairness and outcome of the trial.
The court found that the trial had indeed miscarried because of counsel’s failure to adduce evidence of the appellant’s good character and their failure to object to the expert evidence. The court held that these errors significantly impaired the appellant's right to a fair trial, leading to a miscarriage of justice. Consequently, the court quashed the appellant's convictions and ordered a retrial. This decision underscores the importance of legal representation in ensuring a fair trial and the potential consequences of ineffective assistance of counsel.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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