R v De Silva - [2007] QCA 301

SUPREME COURT OF QUEENSLAND

CITATION:

R v De Silva [2007] QCA 301

PARTIES:

R
v
DE SILVA, Dominic
(appellant)

FILE NO/S:

CA No 125 of 2007
DC No 6 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

21 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2007

JUDGES:

Jerrard and Holmes JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – ATTEMPT – PROPERTY OFFENCES – ARSON AND LIKE OFFENCES – OTHER MATTERS – where the appellant was convicted by a jury of the offence of attempted arson of a dwelling house and of motor vehicles – where a direction was required distinguishing between an attempt and preparation – whether the direction given was sufficient

Director of Public Prosecution v Stonehouse [1978] AC 55, considered
R v Chellingworth [1954] QWN 35, considered
R v Edwards [1956] QWN 16, considered
R v Williams; Ex parte Minister for Justice and Attorney-General [1965] Qd R 86, considered

COUNSEL:

P E Nolan for the appellant
M R Byrne for the respondent

SOLICITORS:

Stacks Gray Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 20 April 2007 Mr De Silva was convicted by a jury of the offence of attempted arson of a dwelling house and of motor vehicles, committed on or about 23 December 2004, at Beenleigh. On 2 May 2007 he was sentenced to 16 months imprisonment, with the 12 days between 20 April 2007 and 2 May 2007 declared as time already served, and the learned judge set a parole release date of 20 December 2007. Mr De Silva has appealed against his conviction, but abandoned an application for leave to appeal against his sentence.

His counsel on the appeal, Mr P Nolan, was given leave to amend the grounds of appeal against conviction, which became that the verdict of the jury was unsafe and unsatisfactory, in that the learned trial judge had erred in law by directing the jury that there was no issue with respect to the question of whether or not there had been an attempt. The essence of the argument on appeal was that, although the point had not been raised by either counsel at the trial, and although the learned trial judge was not asked to give any directions on it, the learned judge ought to have directed the jury as to the difference between mere preparation to commit an offence, and an attempt to commit it.

The evidence

Mr Nolan readily conceded that the case against Mr De Silva was a strong one. At the time of the alleged offence Mr De Silva was the de facto partner of a Christine Piggott, who was the estranged wife of the complainant David Piggott. The Piggotts had three children from their marriage, and there…

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 De Silva

Details

AGLC: R v De Silva [2007] QCA 301
Case: [2007] QCA 301
Decision Date: 21 September 2007

CaseChat Overview and Summary

In R v De Silva, the appellant was convicted by a jury of the offence of attempted arson of a dwelling house and motor vehicles. The appellant appealed against the conviction, arguing that the trial judge should have directed the jury to distinguish between an attempt and mere preparation to commit the offence. The Supreme Court of Victoria was required to determine whether the trial judge’s direction was sufficient.

The court considered the distinction between an attempt to commit an offence and mere preparation to do so, as established in common law and criminal statutes in Australia and New Zealand. The court noted that while it is usually necessary to instruct a jury to distinguish an attempt from preparation, this was not the defence relied upon by the appellant. The court held that the evidence was overwhelming, and the distinction between preparation and an attempt would not have affected the outcome of the trial.

Accordingly, the court held that the appellant had not established the necessary matters to succeed. The court dismissed the appeal against conviction.

The court further noted that the appellant had not demonstrated that the failure to direct the jury on the distinction between preparation and an attempt had any reasonable possibility of affecting the outcome of the trial. The evidence was such that the distinction between preparation and an attempt would not have had any significance in determining the verdict returned by the jury. Therefore, the court dismissed the appeal.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Directions approved in a “Book of directions to juries for the criminal jurisdiction of the Supreme Court and the County Court of the State of Victoria” have included a direction on “attempts”, which included the following:[13]“The Crown must prove such an act or series of acts as would have constituted the completed offence if they had not been interrupted, either by the voluntary determination of the offender not to complete the offence, or by some other cause. The act or acts must be so connected to the completed offence, so close to committing, as to be clearly referable to that offence – to be part of the committing of it, as distinct from a mere preparation to commit it. They must be immediately and not remotely connected with the commission of the intended offence.”[13]Direction suggested at para 8.2/2, published 1995. The distinction between preparation to commit an offence and an attempt to commit is thus well established in the common law and criminal statutes in Australia and in New Zealand, and in suggested directions to juries. The approach taken by Stable J in R v Williams accords with that in other States. It is not necessary to establish that the last act possible was done before the completed offence would occur, to prove an attempt to commit that offence; and sufficient was established in this matter. It is usually necessary to instruct a jury to distinguish an attempt from preparation, but that is because the defence has usually advanced that there was only preparation, and no more. On the totality of the evidence Mr De Silva was not deprived of any possible chance of acquittal by the suggested direction not having been given. It is only when a direction not asked for should have been given, that the possibility of a miscarriage of justice arises. It is then for the appellant to show that the direction both should have been given, and that it is reasonably possible that the failure to so direct the jury may have affected the verdict.[14] While the jury were not given the opportunity to consider a defence of mere preparation, that was not the defence Mr De Silva relied on. Failing to direct on the distinction between preparation and an attempt did not alert the jury to a usually relevant matter, but there is no reasonable possibility that the failure to do that may have affected the outcome in this trial, given the evidence led. The evidence relevant to establishing Mr De Silva’s presence at Mr Piggott’s residence included the evidence relevant to proof of his intent. It follows that directing or not directing the jury on preparation versus an attempt would have had no significance in determining the verdict returned by the jury,[15] such was the strength of the prosecution case. The appellant has not established the necessary matters to succeed, and accordingly I would dismiss the appeal against conviction. [14]Dhanhoa v R (2003-2004) 217 CLR 1, per McHugh and Gummow JJ at [38] and [49].[15]Weiss v R (2006) 223 ALR 662 at [43].

CITATION:	R v De Silva [2007] QCA 301
PARTIES:	R v DE SILVA, Dominic (appellant)
FILE NO/S:	CA No 125 of 2007 DC No 6 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	21 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2007
JUDGES:	Jerrard and Holmes JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – ATTEMPT – PROPERTY OFFENCES – ARSON AND LIKE OFFENCES – OTHER MATTERS – where the appellant was convicted by a jury of the offence of attempted arson of a dwelling house and of motor vehicles – where a direction was required distinguishing between an attempt and preparation – whether the direction given was sufficient Director of Public Prosecution v Stonehouse [1978] AC 55, considered R v Chellingworth [1954] QWN 35, considered R v Edwards [1956] QWN 16, considered R v Williams; Ex parte Minister for Justice and Attorney-General [1965] Qd R 86, considered
COUNSEL:	P E Nolan for the appellant M R Byrne for the respondent
SOLICITORS:	Stacks Gray Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent