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De Silva v The Queen

De Silva v The Queen

Case [2013] VSCA 339 28 November 2013

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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…

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 De Silva v The Queen

Details

AGLC: De Silva v The Queen [2013] VSCA 339
Case: [2013] VSCA 339
Decision Date: 28 November 2013

CaseChat Overview and Summary

In the High Court of Australia, the appellant, De Silva, appealed against his conviction for sexual offences against a child under the age of sixteen years. The primary focus of the appeal was the conduct of the appellant's legal counsel during the trial, specifically their failure to present evidence of the appellant's good character and their failure to object to certain expert evidence presented by the prosecution. The respondent, the Crown, conceded that the trial had indeed miscarried due to these failings.

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