R v Dasilva - [2015] NSWSC 1909

Supreme Court

New South Wales

Medium Neutral Citation: R v Dasilva [2015] NSWSC 1909
Hearing dates: 14 December 2015
Date of orders: 14 December 2015
Decision date: 14 December 2015
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Accused’s Notice of Motion filed 8 December 2015 is dismissed

Catchwords: CRIMINAL LAW - Accused charged with murder - trial pending in Supreme Court - Accused seeks remittal to Local Court for committal proceedings - claim that Accused’s solicitor waived committal proceedings without consent of Accused - indictment filed in Supreme Court - Accused arraigned and trial fixed - no utility in remittal even if complaint is established - application refused - application by Accused to change venue of trial from Newcastle to Sydney - claim of adverse media publicity in Central Coast and Newcastle areas - whether fair or unprejudiced trial cannot otherwise be had - foundation for change of venue not established - application refused
Legislation Cited: Criminal Procedure Act 1986
Jury Act 1977
Cases Cited: R v Butler (1991) 24 NSWLR 66
Potier v Magistrate Maloney & Ors [2005] NSWSC 336
Crowe v Director of Public Prosecutions [2015] NSWSC 747
R v Privett [1999] NSWSC 1074
R v Rawlinson [2013] NSWSC 1722
Dupas v The Queen [2010] HCA 20; 241 CLR 237
R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
V v McDonald (Court of Appeal, 16 February 1995, unreported, BC9504205)
Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, unreported, BC9101577)
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Ricardo Francis Herman Dasilva (Accused)
Representation:
Counsel:
Mr PJ McGrath SC (Crown)
Mr G Scragg (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Birchgrove Legal (Accused)

File Number(s): 2013/361049
Publication restriction: ---

Judgment

JOHNSON J: By Notice of Motion filed on 8 December 2015 the Accused, Ricardo Francis Herman Dasilva, seeks the following orders:

that the trial date from 26 April 2016 to 14 June 2016 be vacated and that the matter be remitted to the Local Court for a committal hearing;

that the venue of the Accused's trial be changed from the Newcastle Supreme Court to the Supreme Court sitting in Sydney;

such other order as the Court thinks fit.

In support of those claims for relief, there have been read, in the Accused’s case, an affidavit of the Accused sworn 4 December 2015 and the affidavit of Mohammad Tehseldar affirmed 9 December 2015. In addition, a document entitled “Application to Waive a Committal Hearing” dated 8 October 2014 has been tendered and is Exhibit A.
The Crown has read, on this application, the affidavit of Marguerite Vassall sworn 14 December 2015.

Factual Background

A chronology of relevant events is important to the determination of this application.
On or about 16 May 2010, Amanda Carter was murdered at Woongarrah, a location on the Central Coast of New South Wales. The Crown alleges that it was the Accused who murdered Ms Carter. There had been a…

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 Dasilva

Details

AGLC: R v Dasilva [2015] NSWSC 1909
Case: [2015] NSWSC 1909
Decision Date: 14 December 2015

CaseChat Overview and Summary

In the matter of R v Dasilva, the accused was charged with murder and faced trial in the Supreme Court of New South Wales. The accused sought a remittal to the Local Court for committal proceedings, arguing that their solicitor had waived these proceedings without their consent. An indictment had already been filed in the Supreme Court, and the accused had been arraigned with a trial date set. The accused's application for remittal was denied, as the court held that there was no utility in remittal even if the complaint regarding the waiver of committal proceedings was substantiated.

The central legal issue the court addressed was whether the accused's solicitor had the authority to waive committal proceedings without the accused's consent. Additionally, the court considered whether the accused's claim of adverse media publicity in the Central Coast and Newcastle areas was sufficient to warrant a change of venue for the trial from Newcastle to Sydney. The court needed to determine whether these factors could prevent the accused from receiving a fair and unprejudiced trial in Newcastle.

The court found that the accused's application for remittal to the Local Court was without merit, as there was no benefit to be gained even if the waiver of committal proceedings by the solicitor was deemed to have occurred without consent. Regarding the change of venue, the court ruled that the accused had not established a sufficient foundation to justify moving the trial to Sydney. The adverse media publicity, while acknowledged, did not meet the threshold required to demonstrate that a fair and unprejudiced trial could not otherwise be had in Newcastle.

As a result, both the application for remittal to the Local Court and the application for a change of venue were refused. The accused's trial proceeded as scheduled in the Supreme Court in Newcastle.

Orders