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

1. 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.

2. The application is opposed.

Background

3. 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.

4. 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.

5. 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.

6. 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 relationship with Ms Carter.

7. Towards the end of March 2010, the principal of Wyong High School received a telephone call from a man claiming to be the father of a student at the school, alleging that Ms Carter was having an affair with one of her students. Another similar call was received a few days later. A couple of days after that the principal received an unsigned letter repeating the allegation. Similar letters were sent to the Newcastle Herald on 4 and 11 May 2010 and to the Central Coast Advocate on 30 April 2010. All three letters were written in the same font and Mr Da Silva’s left thumbprint was detected on one of them. Further inquiries revealed that the telephone calls to the school principal had been made from Mr Da Silva’s place of employment.

8. Meanwhile Mr Da Silva’s behaviour became more and more erratic. On 2 April 2010, Ms Carter and Mr Da Silva informed their respective daughters of the relationship breakdown. The following morning Ms Carter attended Toukley police station and informed the police that she had concerns for Mr Da Silva’s welfare. A later meeting at a restaurant culminated with Ms Carter calling police indicating that Mr Da Silva was acting strangely. Police arrived and transported Mr Da Silva to Wyong Hospital for assessment. He was provisionally diagnosed with an adjustment disorder.

9. Between approximately this time and the date of her death, Ms Carter either met or resumed a previous association with at least two other men using dating or adult sites. It is known that she had brief sexual encounters with a Mr Mekhdjian and a Mr McElrea. Each of these men has been interviewed by the police and has provided a statement. It is apparent that Mr Da Silva became aware of the fact that Ms Carter had met these men, or at least one of them. Ms Carter became aware that her computer had been accessed by a third party. It is the Crown case that this person was Mr Da Silva.

10. Ms Carter was found dead in her bed with severe head and facial injuries at about 10.00am on Sunday 16 May 2010. Mr Da Silva was not arrested and charged with the offence of murder until late in 2013. He has remained in custody awaiting trial since then.

The evidence on the application

11. Mr Da Silva’s solicitors first met with him at the Metropolitan Remand and Reception Centre on 13 January 2016. Ms Khalil told Mr Da Silva at that time that she would be willing to act on his behalf subject to his grant of Legal Aid being assigned to her. Ms Khalil met with Mr Da Silva again on 29 January 2016 at which time she agreed to act for him in these proceedings. Thereafter Ms Khalil acted expeditiously to obtain an assignment of the Legal Aid grant to her for that purpose. This process was delayed for reasons unconnected with anything done or not done by Ms Khalil. Eventually, on 3 March 2016, Ms Khalil received a conditional assignment of Mr Da Silva’s Legal Aid grant. On the same day, Ms Khalil contacted Ms Moen of counsel who accepted the brief to appear for Mr Da Silva at his trial commencing 26 April 2016.

12. Ms Moen’s availability to prepare for the matter was limited to the 2 weeks prior to 26 April 2016 and approximately 3 days towards the end of March. The evidence does not adequately reveal the scope or extent of the material that requires consideration and mastering before the commencement of the trial.

13. Also on 3 March 2016, Ms Khalil wrote to Mr Da Silva’s previous solicitors requesting urgent delivery of his file. That file, consisting of 14 volumes in hard copy, was delivered to her office on the afternoon of 8 March 2016. It did not include electronic material such as CCTV recordings and the like. After having perused the index to the brief of evidence Ms Khalil observed that a substantial amount of CCTV material, recorded interviews and other electronic information needed to be perused. At the date of swearing her first affidavit Ms Khalil was unable to indicate how much time that would involve.

14. The Crown case statement was provided to Ms Khalil on 7 March 2016. From her reading of that document she discerned that the case against Mr Da Silva was circumstantial and that it relied heavily on tendency and coincidence evidence. At that time the Crown proposed to call 64 witnesses.

15. Uncontroversially Ms Khalil indicated that it would be necessary to take lengthy and detailed instructions from Mr Da Silva in relation to all of the material in the brief. That activity is necessarily compromised by the fact that he is in custody. Attempts to visit Mr Da Silva for that purpose have consistently been adversely affected by events at the gaol over which Ms Khalil has had no control. Ms Khalil has emphasised that it will be essential for her to obtain detailed instructions from Mr Da Silva with respect to assertions made by witnesses who the Crown intends to call upon matters of tendency and coincidence. Ms Khalil has foreshadowed that that may involve locating and interviewing witnesses that Mr Da Silva may wish to call in response to the Crown case.

16. Mr Da Silva has not had unimpeded access to computers or other technology to enable him to view material captured on DVDs or CDs that were served on him personally whilst in custody in February this year when he was unrepresented. Ms Khalil has indicated that Mr Da Silva requires access to a laptop computer and a USB stick in order that he might read the brief and personally view the electronic material.

17. As at the date of her first affidavit Ms Khalil expressed the view that, based on her preliminary perusal of the brief of evidence in the matter and the general instructions she had by then received, a number of subpoenas would need to be issued on behalf of Mr Da Silva. Ms Khalil asserted that there was insufficient time to issue those subpoenas and to examine documents that might be produced in response to them, or to prosecute further investigations that might arise from the material produced, prior to the commencement of the trial.

18. Mr Da Silva was committed for trial at the Wyong Local Court on 8 October 2014. He was arraigned in this court on 5 December 2014 and entered a plea of not guilty. The matter was then fixed for trial in Sydney commencing on 24 August 2015. Riviere Law acted for Mr Da Silva at that time. During April and July 2015, when the matter came before RA Hulme J, the court was informed that Mr Da Silva was considering withdrawing instructions from that firm. That anticipation was confirmed when the matter came before his Honour on 14 August 2015. Furthermore, on 21 August 2015, Mr Flynn of counsel, now instructed by Birchgrove Legal, appeared before his Honour and successfully applied to vacate the trial then listed to commence on 24 August 2015.

19. On 11 September 2015, Mr Flynn once again appeared in this court when the matter was relisted for hearing in Newcastle commencing on 26 April 2016. However, on 5 November 2015, at a mention of the matter, Mr Flynn advised the Court that he could no longer continue to appear for Mr Da Silva and that alternative counsel would have to be briefed. In early December 2015, Mr Scragg of counsel was retained to appear for Mr Da Silva but following another mention of the matter before Johnson J on 14 December 2015, Mr Scragg’s instructions were withdrawn.

20. On or about 31 March 2016, Ms Khalil received a letter from the Crown advising her that a hard drive containing the outstanding electronic material in the brief of evidence was available for collection from the Sydney office of the DPP. Ms Khalil caused one of her staff to commence a review of the brief of evidence that was available the following day in order to determine whether or not she was in possession of all of the evidence upon which the Crown proposed to rely.

21. On that same day a document entitled “Notice to defendants as to rights regarding statements, inspection of exhibits and/or sensitive evidence” came to Ms Khalil’s attention. The notice referred to 25 compact discs containing CCTV footage that the Crown did not propose to serve but which could be viewed at Wyong Police Station by appointment. Ms Khalil visited Mr Da Silva at the gaol that same day.

22. It would appear that Ms Khalil was ultimately in possession of all material upon which the Crown proposed to rely by no later than approximately 6 April 2016. That included the transcript of a triple 0 call made on 16 May 2010, transcript of listening device recordings on 26 February 2011 and transcript of an ERISP in which Mr Da Silva participated on 30 November 2011. Ms Khalil has issued a series of subpoenas which are returnable no later than 21 April 2016.

23. Part of the material received by Ms Khalil on 6 April 2016 consisted of CCTV footage and associated written material. Ms Khalil estimated that this material required approximately 2½ hours viewing time to understand it completely. Further electronic material continued to be served upon Ms Khalil by the Crown up to as recently as 15 April 2016. I am led to understand that in large measure, if not exclusively, the CCTV material, although extensive, is limited to street views from numerous locations depicting passing vehicular and pedestrian traffic at or about the time of the events leading up to the death of Ms Carter. This evidence goes to the issue of Mr Da Silva’s whereabouts at or close to the time when Ms Carter was killed. Some of it is on one view contradictory of Mr Da Silva’s recorded interview with the police.

24. Ms Moen has indicated that Mr Da Silva will contend, consistently with his plea of not guilty, that Ms Carter was murdered by a third person. She has frankly indicated that Mr Da Silva will maintain that a reasonable hypothesis consistent with his innocence is available, that Ms Carter was murdered by an unknown and unidentified person with whom she connected on one or other of the adult sites that she had utilised. Although Mr Mekhdjian and Mr McElrea have been identified, Ms Moen has indicated that Mr Da Silva is concerned to know whether or not another man or other men may have been in contact with Ms Carter prior to her death and whether or not an analysis of her computers and her browsing history will or might clarify this. Ms Moen has indicated that Mr Da Silva is concerned that full and precise details derived from Ms Carter’s computers may not have been completely divulged to Mr Da Silva or his legal advisers at this time. Ms Moen has also expressed concern that at least two of the websites frequented by Ms Carter are located in either Canada or the United States and that subpoenas for the production of material from the proprietors of these sites may potentially have to be served in those countries. It would also appear that an electronic evidence expert retained by Mr Da Silva will not be available to advise on these matters until the end of the first week of the trial.

25. On 18 April 2016, Ms Khalil provided Mr Da Silva with what I understand to be a complete copy of the electronic material saved on an external hard drive. I am presently unaware whether or not Mr Da Silva has been able to view all or any of this material in the circumstances that attend his incarceration. I have not been informed that he has not done so.

Consideration

26. There are a number of competing considerations that inform the present application.

27. First, the death of Ms Carter occurred over six years ago. It is not doubted that her death was caused by a violent and vicious assault. It seems beyond controversy that she was murdered, even if the identity of the perpetrator remains to be determined. In those circumstances I am prepared to assume that there is a specific interest among members of her family and friends, as well as a wider public interest, in finalising at least the present proceedings.

28. Secondly, some, although by no means all or even most, of the delay has been occasioned by Mr Da Silva terminating the services of competent counsel. It remains presently unexplained why the services of Mr Scragg of counsel were dispensed with, except that it would appear to have occurred in circumstances that subsequently generated complaints by Mr Da Silva about an agreement dispensing with a committal hearing and the final venue for the trial. Both of Mr Da Silva’s complaints on those topics were resolved unfavourably to him. Mr Da Silva would also appear to have sacked more than one firm of solicitors in or by no later than early 2016. All of these unilateral actions by Mr Da Silva have combined to imperil, to some extent or another, his current legal advisers’ ability to prepare for the trial.

29. Thirdly, Mr Da Silva’s principal concern seems to me to be misconceived. Ms Carter’s computers have not been exhaustively examined or analysed by the Crown. As presently understood, the Crown case will not be that the police have been able, by examining Ms Carter’s electronic or computer history or otherwise, to exclude either the possibility or the fact of contact between her and other men on adult dating or meeting sites. Mr Da Silva remains concerned that he should be given an opportunity to do so and that the late and unsatisfactory offer of access to this material, and its examination by his own expert, leaves him in a position of particular disadvantage. That contention proceeds upon the assumption that the analysis will likely reveal the identity of someone with whom Ms Carter made contact who can be shown to be the person who killed her.

30. There are a number of difficulties with that position. It is well understood that the case against Mr Da Silva is wholly circumstantial. Ms Moen conceded, quite fairly, that it was a reasonably strong circumstantial case. Be that as it may, in such circumstances the jury will not be in a position to return a verdict of guilty against Mr Da Silva unless the circumstances relied upon by the Crown exclude any reasonable hypothesis other than his guilt. That is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence. If the jury were to conclude that an inference or hypothesis consistent with innocence were open on the evidence, they would have to give Mr Da Silva the benefit of the doubt necessarily created by that circumstance and acquit him. Moreover, an alternative hypothesis does not have to be “equally open” or “equally compelling” in order to give rise to a reasonable doubt as to guilt. Such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence. Additionally, and significantly for present purposes, the jury does not have to be able to infer that the event suggested by the innocent hypothesis actually occurred. It is sufficient if there is a reasonable possibility that such an event took place. Even a single circumstance inconsistent with a conclusion of guilt may be sufficient to destroy the hypothesis of guilt.

31. It seems to me that Mr Da Silva is desirous of embarking upon a course of inquiry that is inimical to his best forensic position. It is not in issue that Ms Carter’s computer records have been incompletely examined. It is also apparent that she used it to meet men, including Mr Da Silva. If the evidence remains in that state, Mr Da Silva can contend that it is at least available as a reasonable inference that her death was caused by some other person with whom she had had some form of recent or even ancient contact in that way. Having regard to present circumstances, and to the fact that the Crown bears the onus of establishing Mr Da Silva’s guilt, and that he bears no onus of establishing or proving anything, I do not consider it to be appropriate to vacate the hearing for what I am told would be a number of months in order to provide Mr Da Silva’s computer expert with an opportunity potentially to disadvantage him. I consider that the prospect that such a computer analysis would uncover a person who can be demonstrated to have murdered Ms Carter in fact is speculative and remote at best. It is not an exercise that I consider ought to be permitted to delay this trial.

32. In this last respect I observe that it is not possible to formulate any hard and fast rule to cover such a situation. As was said in R v Alexandroaia (1995) 81 A Crim R 286, the test appropriate in that case was whether there was a reasonable possibility that material of substantial assistance would be obtained if the trial were delayed. The Court emphasised that the strength of the proposed “defence” is relevant to that test, although too much weight should not be afforded to that issue as it is usually impossible to judge the “defence” fairly in the absence of a proper investigation into the evidence available to support it. Part of what the Court said at 288-9 is as follows:

“It was frankly conceded that what was sought was the opportunity to conduct a fishing expedition, in the sense that the appellant was unable to say just how he would or could be assisted by such inquiries, but he nevertheless wished to investigate in order to find out whether or not there was anything there which may assist him in his trial. It was accepted that it was speculative that anything at all would be found, but it was nevertheless asserted that, in order that justice should not only be done but be seen to be done, the adjournment should have been granted to enable the appellant (and those advising him) to be satisfied that all had been done in his defence.

It is, of course, basic to the rules of natural justice that an accused must be given a reasonable chance to present his case, which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it. The appearance that justice has been done is particularly important in a criminal trial, although it is important to stress that a new trial will not be ordered even where an adjournment has been wrongly refused unless a resulting miscarriage of justice has also been established in relation to the trial which then took place.

But even the need for an appearance of justice requires some limitation to be placed upon the right of an accused to delay his trial in order to conduct further investigations.”

33. It was certainly not conceded on Mr Da Silva’s behalf that what he was proposing amounted to a fishing expedition, and I would not characterise his proposal in that way in any event. However, Mr Da Silva is proposing to embark upon what is clearly a speculative exercise with no reasonable prospect that it will be productive of any information that is realistically likely to improve his position at his trial. In my view there is no reasonable possibility that material of substantial assistance to him would be obtained if the trial were delayed. On the contrary, it seems to me to be more probable that his position would be significantly better if a doubt about what the computers might reveal were permitted to remain, particularly in combination with the fact that it is not in dispute that the evidence at trial will support the contention that the police investigation did not extend to a complete examination of Ms Carter’s computer, coupled with the fact that she was actively in search of companionship by using it. On balance I consider that the prospect that Mr Da Silva could mount a successful “defence” based upon this material is higher if it remains unexamined than if it were completely exposed.

34. Fourthly, Mr Da Silva is concerned to have an opportunity to examine a wealth of CCTV footage contained on DVDs and CDs. Much if not all of this material relates to street scenes depicting passing vehicles of which Mr Da Silva’s vehicle is said to be one, or not, as the case may be. In my experience that material is not particularly difficult or time consuming to master and experienced lawyers should be able to deal with it in short course. I am also led to understand that it is accompanied by a commentary or schedule of what is thought to be shown which would obviously facilitate the process.

35. Finally, a relatively large number of witnesses are expected to give evidence. It is undesirable and frankly unreasonable to expect that witnesses in general, but lay witnesses in particular, should have to retain a reliable or accurate recollection of events over many years. The sooner that the trial can be conducted, the greater is the prospect that the evidence received in the proceedings from observation witnesses will be accurate.

Conclusion

36. It follows in my opinion that the application to vacate the trial listed to commence on 26 April 2016 should be refused. Whether or not some adjustment to the commencement of the trial proper, following the empanelling of the jury, should occur will depend upon the circumstances that arise thereafter. I accept that legal argument with respect to a disputed tendency notice has been scheduled to commence no earlier than 2 May 2016 and that an argument concerning a subpoena issued to the Commissioner of Police has been set down for 29 April 2016. I will not require the trial to commence immediately following jury selection unless the parties are content for that to occur.

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Decision last updated: 09 June 2016