R v Bessa Da Silva

Case [2022] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v BESSA DA SILVA

Criminal Trial by Judge Alone

[2022] SASC 28

Reasons for the Verdict of the Honourable Justice Stein  

25 March 2022

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - WOUNDING OR SHOOTING OFFENCES - SHOOTING

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AID, ABET, COUNSEL OR PROCURE - GENERALLY

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - GENERALLY

On 23 April 2020, the victim was shot in the face while seated in the driver’s seat of his vehicle. The defendant was charged with the attempted murder of the victim contrary to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (SA) and, in the alternative, aggravated causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA). The prosecution case relied on circumstantial evidence, including CCTV footage prior to and after the shooting.

Held, acquitting the defendant of both charges:

1.The evidence was insufficient to prove beyond reasonable doubt that the defendant shot the victim.

2.The evidence was insufficient to prove beyond reasonable doubt that the defendant was engaged in a joint criminal enterprise with, or aided and abetted, another person who was present at the time the victim was shot.

Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 11, 23(1), 267, 270A; Evidence Act 1929 (SA), referred to.

Domican v The Queen (1992) 173 CLR 555; Giorgianni v The Queen (1985) 156 CLR 473; Kural v The Queen (1987) 162 CLR 502; Likiardopoulos v The Queen (2012) 247 CLR 265; McAuliffe v The Queen (1995) 183 CLR 108; Miller v The Queen (2016) 259 CLR 380; R v Baden-Clay (2016) 258 CLR 308; R v BS [2020] SASC 138; R v Cekic [2015] SASC 47; R v Golding and Edwards (2008) 100 SASR 216; R v Micallef (2002) 136 A Crim R 127; Shepherd v The Queen (1990) 170 CLR 573; R v Singh [2019] SASCFC 51; R v Sully [2011] SASC 169; R v Tartaglia (2011) 110 SASR 378, applied.

Barca v The Queen (1975) 133 CLR 82; Dansie v The Queen [2020] SASCFC 103; Holland v Jones (1917) 23 CLR 149; Nasaris v The Queen [2021] SASCA 143; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Davidson v The Queen (2009) 75 NSWLR 150; R v Hillier (2007) 228 CLR…

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AGLC
R v Bessa Da Silva [2022] SASC 28
Case
[2022] SASC 28
Decision Date

CaseChat Overview and Summary

In the matter of R v Bessa Da Silva, the appellant was charged with the offence of attempted murder, arising from an incident on 23 April 2020 at Waterloo Corner. The case before the court was substantially circumstantial, relying on inferences drawn from CCTV footage, forensic evidence, and witness testimonies. The prosecution's case included proving that the appellant intended to kill the victim, that he attempted to execute this intent, and that the act was done without lawful excuse. The court was also tasked with determining if the prosecution had proven the existence of a joint criminal enterprise or that the appellant aided and abetted another person in the commission of the offence.

The legal issues central to the case were whether the prosecution had established the appellant's primary liability for attempted murder beyond reasonable doubt and, if not, whether they had proven his ancillary liability through participation in a joint criminal enterprise or aiding and abetting another in the offence. The court considered the principles of circumstantial evidence, which require that the evidence must exclude any reasonable hypothesis other than the guilt of the accused. The prosecution had to prove that the totality of the circumstances established was inconsistent with any hypothesis of innocence.

The court found that the evidence did not support the conclusion that the appellant was the shooter beyond reasonable doubt. The circumstantial evidence, while suggestive, did not meet the required standard of excluding every reasonable hypothesis of innocence. The court further determined that the prosecution failed to prove the existence of a joint criminal enterprise or that the appellant aided and abetted another in the offence. The evidence did not sufficiently establish the necessary agreement or participation in a joint criminal venture.

In conclusion, the court acquitted the appellant of both charges. The evidence was deemed insufficient to prove beyond reasonable doubt that the appellant shot the victim or that he was involved in a joint criminal enterprise or aided and abetted another person in the offence. The court found that the prosecution had not excluded every reasonable hypothesis of innocence, thereby failing to meet the required standard of proof.

Orders

Orders of the court

Held, acquitting the defendant of both charges:

1. The evidence was insufficient to prove beyond reasonable doubt that the defendant shot the victim.

2. The evidence was insufficient to prove beyond reasonable doubt that the defendant was engaged in a joint criminal enterprise with, or aided and abetted, another person who was present at the time the victim was shot.

Background

Background to the litigation

I direct myself that I must consider the evidence of the expert witnesses together with the evidence of all other witnesses. I must determine what of their evidence I accept and what weight is to be ascribed to that evidence and any inferences that arise from the evidence. I must not capriciously disregard unchallenged expert evidence. I can accept or reject the evidence of an expert witness in the same manner as any other witness. In assessing the evidence of an expert witness, relevant factors for my consideration include the qualifications of the witness, the extent to which their evidence accords with other evidence and their impartiality. I must not blindly follow the opinions of an expert witness. Agreed facts The parties agreed, pursuant to the provisions of the Evidence Act 1929 (SA), the following facts:Caltex CCTV – Direk1.CCTV depicting events at Caltex Direk at 2-6 Pilatus Dr (Cnr Heaslip Rd, Direk) commencing at about 11.52am on 22 April 2020 was seized by police.145b Midway Road Elizabeth Park – CCTV2.CCTV depicting events at 145b Midway Road, Elizabeth Park commencing at about 12.12pm on 22 April 2020 was seized by police.Caltex CCTV – Springbank3. CCTV depicting events at Springbank Caltex at 382-396 Waterloo Corner Rd, Burton commencing just after midnight on 23 April 2020 was seized by police.24 Hall Crescent Burton – CCTV4. CCTV depicting events at 24 Hall Crescent, Burton commencing at about 3.06am on 23 April 2020 was seized by police.7 Hoyle Court, Salisbury5. The silver Volkswagen Golf with SA registration S465CDA was located and seized from 7 Hoyle Court, Salisbury at around 10.15am on 23 April 2020.6.In and around April 2020 this vehicle was registered to Paula Bessa Da Silva, the sister of the accused.7.At 10.55am on 23 April 2020, police searched 7 Hoyle Court, Salisbury. The silver Volkswagen Golf was seized and Gunshot Residue swabs were subsequently taken by an experienced crime scene investigator. Gunshot Residue swabs were taken from:a. the steering wheel (swab 1),b. the manual gear lever, which was in neutral (swab 2),c. the handbrake, which was engaged (swab 3), andd. the turn indicator stalk (swab 4).8. The four swabs were booked into the Police Property Management System collectively under the identifier PPMS20/A34080-9.Addresses9. In and around 23 April 2020:a. 7 Hoyle Court, Salisbury was the home address of the accused.b. Unit 7, 32 Glenbrook Close, Marden was the home address of the accused’s sister Paula Bessa Da Silva.Triple Zero10. At 2.09am on 23 April 2020, a triple zero call that originated from the Property was made in relation to this matter. That call resulted in police and ambulance attending at the Property.Exhibits The majority of the exhibits comprise photographs taken by various of the witnesses. They include photographs of the crime scene, photographs of the forensic assessment of Mr Kingston’s vehicle, a table of results produced in relation to gunshot analysis and a bundle of images comprising screenshots from the CCTV footage taken at the Property.

Evidence

Evidence Before The Court

An inference must rest on something more than mere conjecture to be reasonable.[10][10] Peacock v The King (1911) 13 CLR 619 at 661; R v Baden-Clay (2016) 258 CLR 308 at [47].Circumstantial evidence The prosecution case against Mr Bessa Da Silva is circumstantial. I must apply well-settled principles concerning cases that are based upon circumstantial evidence.[11] [11] R v Baden-Clay (2016) 258 CLR 308 at [46]-[47]. When the case against an accused is based substantially upon circumstantial evidence, a jury cannot return a verdict of guilty unless the circumstances are inconsistent with any reasonable hypothesis other than the guilt of the accused.[12] It is necessary not only that the accused’s guilt should be a rational inference but that it should be “the only rationale inference that the circumstances would enable [the fact finder] to draw…”.[13] [12] Barca v The Queen (1975) 133 CLR 82 at 104; Peacock v The King (1911) 13 CLR 619 at 634.[13] Plomp v The Queen (1963) 110 CLR 234 at 252 per Menzies J. In Plomp v The Queen (“Plomp”), Dixon CJ said:[14]If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.[14] Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ. In R v Micallef, after referring to Plomp, Dunford J said that in cases of circumstantial evidence:[15] There is often a tendency … to consider whether each individual circumstance can be separately explained away as being consistent with innocence; or to consider whether a path, however tortuous, can be found through a combination of the circumstances, which as a matter of strict logic, is capable of being reconciled with a conclusion of innocence. The correct test, however … is whether, judging the matter rationally in the light of the common experience of human affairs, the combination and totality of the facts proved are consistent with innocence.”[15] R v Micallef (2002) 136 A Crim R 127 at [42] per Dunford J. There may be evidence which, considered in isolation, is consistent with innocence. However, all of the circumstances established by the evidence must be considered and weighed in determining whether there is reasonably open on the evidence an inference which is consistent with innocence.[16] [16] R v Hillier (2007) 228 CLR 618 at [46]-[48] per Gummow, Hayne and Crennan JJ; see also Dansie v The Queen [2020] SASCFC 103 at [295] per Nicholson J; at [446]–[465] per Livesey J. In R v Baden-Clay (“Baden-Clay”), the High Court stated:[17]For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[17] (2016) 258 CLR 308 at [47].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A significant part of the prosecution case was circumstantial and relies on me drawing a number of inferences. Critical issues for consideration The prosecution states there are two key issues and subsidiary issues for me to determine. The first key issue (for the primary liability case) is whether I am satisfied beyond reasonable doubt that Mr Bessa Da Silva was the shooter. If I am not satisfied beyond reasonable doubt that Mr Bessa Da Silva was the shooter, the subsidiary issues (for the accessorial liability case) are whether the prosecution has proved beyond reasonable doubt that Mr Bessa Da Silva introduced a firearm pursuant to a joint criminal enterprise with Mr Johnstone or whether Mr Bessa Da Silva aided and abetted Mr Johnstone in the offending. The second issue is whether the prosecution has excluded beyond reasonable doubt any lawful justification for the offending. Legal elements of attempted murder The accused was charged with the offence of attempted murder. The particulars of the charge are that on 23 April 2020 at Waterloo Corner Mr Bessa Da Silva attempted to murder Jason Kingston. In order to prove the offence of attempted murder (primary liability case), the prosecution must prove the following three elements beyond reasonable doubt:[1] 1. the accused intended to kill the victim;2.the accused attempted to execute that intention to kill in the sense that the accused did an act or a series of acts which were immediately directed towards fulfilling that intention; and3. the act or series of acts were done without lawful excuse.[1] R v BS [2020] SASC 138 at [6] per Lovell J. In order for Mr Bessa Da Silva to be guilty of attempted murder on the prosecution’s primary case, I must be satisfied beyond reasonable doubt that Mr Bessa Da Silva intended to kill Mr Kingston, attempted to carry out that intention by an act, being the shooting of Mr Kingston, and that the shooting was done without lawful excuse. Joint enterprise In order to prove the alternative ancillary liability case, the prosecution must establish the existence of a joint criminal enterprise or establish that Mr Bessa Da Silva aided and abetted Mr Johnstone. A joint criminal enterprise exists where two or more people agree to carry out acts involving the commission of a crime. If the offence is committed pursuant to that agreement, all those participating are guilty, regardless of the particular role each played. The elements of liability under the doctrine of joint criminal enterprise are:[2]1.the accused entered into an agreement with one or more other people to commit the offence;2.the accused participated in the joint agreement;3.while the agreement was on foot, one or more of the parties to the agreement did the acts necessary to commit the charged offence; and4.the accused had the state of mind necessary to commit the charged offence.[2] Likiardopoulos v The Queen (2012) 247 CLR 265 at [19]; Miller v The Queen (2016) 259 CLR 380 at [4]. The agreement may be inferred from the conduct of the persons involved.[3] [3] Miller v The Queen (2016) 259 CLR 380 at [4]; McAuliffe v The Queen (1995) 183 CLR 108 at 114.