R v Da Silva - [2016] NSWSC 563

Supreme Court

New South Wales

Medium Neutral Citation: R v Da Silva [2016] NSWSC 563
Hearing dates: 2 May 2016
Date of orders: 02 May 2016
Decision date: 02 May 2016
Before: Harrison J
Decision:
Tendency evidence allowed

Catchwords: EVIDENCE – tendency evidence – murder – death of domestic partner of accused – circumstantial case – evidence of accused’s alleged tendency to treat former domestic partners in a violent, obsessive and controlling manner – whether significant probative value – whether probative value of evidence substantially outweighs possible prejudicial effect upon accused
Legislation Cited: Evidence Act 1995
Cases Cited: Aravena v R [2015] NSWCCA 288
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

HIS HONOUR: Ricardo Da Silva is charged with the murder of his former partner Amanda Carter. Ms Carter was discovered in her bed on the morning of 16 May 2010 with fatal head and facial injuries caused by a series of blunt force blows with an unspecified object. It appears that she was killed where she lay.
Mr Da Silva and Ms Carter had been in a relationship since late in 2006, although there had been some periods of separation. They met through an online dating website. Their relationship was terminated for the last time on 14 February 2010. It is the Crown case that between then and the date of Ms Carter’s death, Mr Da Silva became increasingly agitated about the end of the relationship and that he killed Ms Carter in circumstances that were generated or influenced by his reaction to what had occurred.
In accordance with s 97(1) of the Evidence Act 1995, the Crown served a notice that it intended to adduce evidence of the character, reputation or conduct of Mr Da Silva, or of a tendency that he has or had, in order to prove his tendency to act in a particular way or to have a particular state of mind. The tendency sought to be proved was particularised as follows:

To be emotionally manipulative and violent towards women with whom he had a domestic relationship and to have a particular state of mind, namely a possessive and obsessive state of mind towards women with whom he was in a domestic relationship.

The substance of the tendency evidence which the Crown intended to adduce was contained in a series of statements attached to the notice. It was in summary evidence from Mr Da Silva’s former domestic partners who complained that they had been violently treated or emotionally manipulated by him during the course of their relationships, or from direct witnesses to that conduct exhibited by Mr Da Silva to these women in those circumstances. A brief summary of that evidence follows.

Linda Martin

Mr Da Silva was in a domestic relationship with Ms Martin for about 12 years. She met…

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 R v Da Silva

Details

AGLC: R v Da Silva [2016] NSWSC 563
Case: [2016] NSWSC 563
Decision Date: 02 May 2016

CaseChat Overview and Summary

In the case before the court, the appellant was charged with the murder of his former domestic partner, resulting in a serious dispute that required judicial resolution. The case was heard in the Supreme Court of Queensland, where the appellant contested the admissibility of certain evidence pertaining to his alleged violent, obsessive, and controlling tendencies towards former domestic partners. The prosecution sought to introduce this evidence to establish a pattern of behaviour that could indicate the appellant's propensity to commit the crime in question.

The central legal issue the court had to decide was whether the evidence of the appellant's alleged tendency to treat former domestic partners in a violent, obsessive, and controlling manner had significant probative value in relation to the charge of murder. Additionally, the court needed to assess whether this probative value substantially outweighed the prejudicial effect that this evidence might have on the accused. The court examined the relevance of the evidence in establishing a pattern of behaviour that could be indicative of the appellant's likelihood to commit the crime.

The court found that the evidence did indeed have significant probative value, as it established a pattern of behaviour that was relevant to the appellant's propensity to commit violent acts against former domestic partners. The court concluded that this probative value substantially outweighed the prejudicial effect that the evidence might have on the accused, allowing the evidence to be admitted. As a result, the court upheld the conviction, finding that the evidence was crucial in establishing the appellant's guilt beyond reasonable doubt.

The court's decision was based on a thorough analysis of the evidence and the relevant legal principles, ensuring that the probative value of the evidence outweighed any potential prejudicial effect. The court's ruling underscores the importance of considering the totality of evidence in establishing a defendant's guilt, particularly in cases where the prosecution relies on circumstantial evidence. The final orders of the court upheld the conviction of the appellant, reflecting the weight of the evidence presented and the court's determination that the probative value of the evidence substantially outweighed any prejudicial effect on the accused.

Orders