R v Da Silva - [2016] NSWSC 499

Supreme Court

New South Wales

Medium Neutral Citation: R v Da Silva [2016] NSWSC 499
Hearing dates: 31 March, 19 and 21 April 2016
Date of orders: 21 April 2016
Decision date: 21 April 2016
Before: Harrison J
Decision:
Application to vacate trial date refused

Catchwords: PRACTICE AND PROCEDURE – application to vacate trial date – murder – where defendant seeks time to have an expert examine victim’s computers –circumstantial case – where victim possibly in contact with unknown persons via online dating sites – whether examination of computers will advance reasonable hypothesis consistent with innocence
Cases Cited: R v Alexandroaia (1995) 81 A Crim R 286
Category: Procedural and other rulings
Parties: Regina (Crown)
Ricardo 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: Mr Da Silva applies to vacate his trial, presently scheduled to commence in Newcastle on 26 April 2016 with an estimate of six weeks. He is charged that on or about 16 May 2010 at Woongarrah in the State of New South Wales he did murder Amanda Carter. In support of the application Mr Da Silva relies upon two detailed and helpful affidavits sworn by Fouadi Khalil on 29 March and 18 April 2016 respectively.
The application is opposed.

Background

The following summary is drawn from the Crown Case Statement. I acknowledge that Mr Da Silva has not indicated his acceptance of the truth or accuracy of any of it.
Amanda Carter was a 46 year old school teacher at Wyong High School. Mr Da Silva had been employed as a real estate agent working in Charmhaven. He came to Australia from Trinidad and Tobago in 1971. Ms Carter and Mr Da Silva met via an online dating site in 2006. They formed a relationship. In 2009 Mr Da Silva moved into Ms Carter’s home in Ivory Crescent, Woongarrah, while simultaneously maintaining his own rented premises in Bonnells Bay.
The relationship began to sour in 2009 in association with mutual allegations of infidelity. Notwithstanding that, Mr Da Silva proposed marriage to Ms Carter in November that same year and they became engaged. Things did not improve between them, however, and they separated for the final time on 14 February 2010. Mr Da Silva did not take kindly to the termination of the relationship. Disputes arose concerning Mr Da Silva’s possessions at Ms Carter’s home and the use of motor vehicles that they owned.
On 14 March 2010, an argument occurred at Ms Carter’s home. Mr Da Silva left the premises in Ms Carter’s motor vehicle and crashed into a pole. He was admitted to hospital where he remained for a few days. Thereafter Mr Da Silva began working odd hours, sometimes arriving at work very early and leaving very late. He was observed by fellow workers to be drinking. This was behaviour that had not been evident prior to the cessation of his…

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 499
Case: [2016] NSWSC 499
Decision Date: 21 April 2016

CaseChat Overview and Summary

The case of R v Da Silva involved the defendant's application to vacate the trial date for a murder charge. The defendant sought additional time to allow an expert to examine the victim's computers, aiming to uncover information that might support a hypothesis consistent with his innocence. This included the possibility that the victim had been in contact with unknown persons via online dating sites. The application was heard in a higher court, tasked with determining the legal sufficiency of the application and the necessity of the proposed expert examination.

The court was required to decide whether the defendant's application was justified under the circumstances. Specifically, the court had to assess the strength of the circumstantial case against the defendant and whether the examination of the victim's computers could potentially yield evidence supporting a hypothesis of innocence. This involved a delicate balance between the defendant's right to a fair trial and the need for the judicial process to proceed efficiently. The court also needed to consider whether the defendant's claims of potential new evidence were sufficiently plausible to warrant a postponement of the trial.

In evaluating the application, the court examined the strength of the circumstantial evidence against the defendant and the potential significance of the computer examination. The court acknowledged the defendant's right to a fair trial but also recognised the importance of judicial efficiency. Ultimately, the court found that the circumstantial evidence against the defendant was strong, and the potential benefits of the computer examination did not outweigh the public interest in the timely resolution of the case. Consequently, the court dismissed the application to vacate the trial date.

The court did not grant the defendant's application to vacate the trial date. The trial proceeded as scheduled, with the court emphasising the need for judicial efficiency and the strength of the evidence against the defendant. The court's decision underscored the importance of ensuring that the judicial process does not unduly delay, particularly in serious criminal cases.

Orders