R v Da Silva

[2016] NSWSC 763

Supreme Court

New South Wales

Medium Neutral Citation:	R v Da Silva [2016] NSWSC 763
Hearing dates:	24 May 2016
Date of orders:	24 May 2016
Decision date:	24 May 2016
Before:	Harrison J
Decision:	Application for adjournment is refused
Catchwords:	ADJOURNMENT APPLICATION – computer records of deceased – where deceased utilised online dating and adult websites to meet men – where Crown case indicates that only a non-exhaustive examination of the computer was conducted by investigating police – whether accused ought to be given an adjournment of seven sitting days mid-trial to permit expert to examine records completely – where no evidence available to suggest that a more detailed examination would be likely to produce anything further – where no question of any inference adverse to the accused if he failed to conduct an exhaustive examination of the computer
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ricardo Francis Herman Da Silva (Accused)
Representation:	Counsel: L Carr (Crown) A Moen (Accused)   Solicitors: Director of Public Prosecutions (Crown) Fay Rose Legal (Accused)
File Number(s):	2013/361049
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The case for the Crown closed at lunchtime on Monday 23 May 2016. At the request of Mr Da Silva I adjourned the proceedings until 10.00 am on Wednesday 25 May 2016 in order to permit Mr Da Silva’s legal representatives to take further instructions from him before being required to indicate whether or not he intended to call or to tender any further evidence. At 3.00 pm on Tuesday 24 May 2016, which was the 17th day of the trial, Mr Da Silva applied to adjourn the hearing until Thursday 2 June 2016. That application was made having regard to the following matters.

2. Part of the Crown case has consisted of the tender of material taken from the computer used by the deceased. It is uncontroversial that her computer records reveal that the deceased was actively involved in both successful and unsuccessful attempts to meet men utilising online dating and adult websites such as RSVP and Adult Friend Finder. Some of the men that the deceased met in this way have given evidence in the trial and others have been identified and spoken to by the police. Others still remain unidentified, apart from their user name, and have neither been located nor spoken to by the police. The evidence in the trial also includes printouts of electronic conversations between the deceased and some of these men, or what have been referred to as chat logs.

3. It is conceded on behalf of the Crown that the investigating police have not exhaustively gathered or analysed the entirety of the deceased’s computer records. It remains possible that the deceased may have conversed with other men using her computer but that neither their existence at all nor their identity has been established. It is equally possible that the deceased did not make contact in this way with any men other than those who have in fact been identified or at least nominated as a participant with the deceased in these electronic conversations.

4. I am informed that Mr Da Silva has qualified a computer expert with a view to gaining access to the deceased’s computer in order exhaustively to analyse it and to determine if possible whether or not the deceased in fact communicated with any men other than those who have been referred to in the Crown case. I am also informed that for a combination of reasons, including the arduous nature of the task and the availability of the expert in question, the proposed exercise cannot be completed before 2 June 2016. An adjournment until then would necessitate keeping the jury out of court for what would in total be seven complete sitting days.

5. I indicated yesterday that I was not prepared to accede to Mr Da Silva’s application. There are several reasons for this.

6. First, I consider that a delay of seven days at this stage of the trial is unacceptable and not in the interests of justice. The members of the jury perform an obviously important, not to say critical, part in the trial and their respective personal positions and convenience need to be respected and understood. I do not consider that their position is paramount, and I accept that I would have to yield in a proper case to the interests of the parties or either of them. However, I remain mindful of the fact that an unexplained delay of more than a week between the close of the Crown case and whatever in fact becomes the next step in the trial is unsatisfactory and ought where possible to be avoided. A delay of that nature may not be unprecedented but is unique at least in my experience. It is not reasonable in my opinion for the jury to be expected to take a break of seven days mid-trial unless the circumstances made such a course effectively unavoidable.

7. Secondly, and perhaps more fundamentally, Mr Da Silva’s concerns proceed upon a basic misconception about his position in a criminal trial and some perceived obligation or onus upon him to rebut the Crown case. I have previously considered these matters in a similar application when the trial commenced. It is unnecessary in any detail to revisit what I said at that time. However, Mr Da Silva bears no onus of any kind to rebut the Crown case or to prove or establish any single matter of fact in issue in this trial. The strength of the inference that there may have been another man or other men with whom the deceased made contact through adult or dating websites is not diminished by any failure by Mr Da Silva to establish positively that there were such men. Indeed, the evidence in the Crown case makes it clear that the non-exhaustive nature of the police investigation in this area leaves that prospect completely open. Moreover, there exists a possibility of equal probability that an examination of the deceased’s computer in greater detail will demonstrate the absence of such men. The forensic consequences for Mr Da Silva would in those circumstances be considerably less beneficial than the present state of uncertainty.

8. Thirdly, and in a related sense, counsel for Mr Da Silva expressed concern about what impression the jury may be left with if she did not actively pursue the inquiry into whether or not the deceased’s computer records had been thoroughly examined. Once again I indicated that proper directions to the jury would include a reference to Mr Da Silva’s right to remain silent on the one hand and the total absence of any obligation upon him to prove or to disprove any fact on the other hand. Standard directions to juries include emphatic references to the fact that it would be wrong to make any assumptions about, or to draw any conclusions from, the fact that an accused person may have been able to call evidence in his or her case but declined to do so.

9. Fourthly, the course which Mr Da Silva wishes to pursue approaches what in other contexts has been referred to as a fishing expedition. There is so far no hint or stronger indication from the evidence indicating or suggesting what, if anything, a further examination of the deceased’s computer might reveal. I would have been more favourably inclined to the present application if there were some sense from the evidence that Mr Da Silva’s position would be improved by the adjournment because it was likely that another man or several other men might be shown to have corresponded with the deceased on the relevant websites. There is presently no such indication from the evidence that this might be so. The course proposed by Mr Da Silva is therefore particularly dangerous as it carries the potential to convert what is at present a helpful uncertainty into problematic certainty.

10. Fifthly, the likelihood that the deceased has been killed by an assailant with whom she has had no more than a conversation or chat utilising some facilitating website is highly unlikely and amounts to or approaches complete speculation. There is no evidence to support the proposition that the deceased engaged in electronic conversations with any men in anything other than a polite and friendly fashion. The often titillating tone of the conversations with the correspondents who have been identified, or whose conversations have been tendered in the Crown case, does not lend support to the prospect that the deceased may have inadvertently offended or sufficiently provoked some as yet unidentified person randomly to commit the acts that caused her death. Moreover, the chat logs that are in evidence significantly do not demonstrate or suggest that the deceased was ever so incautious as to reveal her true identity or her residential address to a man with whom she conversed. The prospect that she may have done so only in conversations that have never even been identified or discovered remains remote.

11. Finally, with one small difference, this application is a reprise of the original application to adjourn the trial. That difference consists in the fact that Mr Da Silva’s legal representatives are now somewhat better informed about all of the electronic and computer evidence in the trial and correspondingly better able to form a judgment about the utility of their expert’s opinions. However, I am not satisfied that that difference should lead to a different result.

12. In my view the previously identified reasons for refusing the application should prevail. It follows that Mr Da Silva’s further application for an adjournment is refused.

**********

Decision last updated: 09 June 2016