R v Silva

Case [2010] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION:

R v Silva [2010] QCA 79

PARTIES:

R
v
SILVA, Jorge Ernesto Velarde
(applicant/appellant)

FILE NO/S:

CA No 179 of 2009
SC No 683 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2010

JUDGES:

Chief Justice, Muir JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appellant's appeal against conviction be dismissed;1.    

The appellant's application for leave to appeal against sentence be refused.2.    

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of conspiring with co-offenders Jackson and Nudd to bring a commercial quantity of cocaine into Australia from Mexico – where extradition proceedings alleged cocaine loaded in Colombia – where primary judge did not permit cross-examination of investigators concerning alleged loading in Colombia – where appellant submitted cross-examination should have been allowed to determine adequacy of police investigation – where appellant submitted assertions in extradition materials regarding Colombia should be admissible as admissions against interest – whether cross-examination should have been allowed – whether a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where tape recorded conversation linked appellant to conspiracy – where Jackson’s evidence identifying the appellant as a participant in the conversation not challenged – whether primary judge properly directed jury regarding drawing inferences from the conversation – whether primary judge misdirected jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where appellant convicted of conspiracy to bring cocaine from Mexico – where extradition proceedings alleged conspiracy to bring cocaine from Colombia – whether s 42 Extradition Act 1988 (Cth) breached

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to 24 years imprisonment with a non-parole period of 12 years – where appellant submitted sentence not proportionate to co-offenders’ sentences – where Jackson transported the drugs, supplied the means of importation and contributed finance – where primary judge held Nudd was “senior in the scheme” – where primary judge held appellant had “substantial ongoing involvement” in the venture – where primary judge held appellant’s role was “more significant” than Nudd’s – where there were mitigating factors – whether appellant’s sentence manifestly excessive

Crimes Act 1914 (Cth), s 16A(2)(p)
Extradition Act 1988 (Cth), s 42

Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited
Jago v District Court(NSW) (1989) 168 CLR 23; [1989] HCA 46, cited
Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71, cited
Penney v The Queen (1998) 155 ALR 605; [1998] HCA 51

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Details
AGLC
R v Silva [2010] QCA 79
Case
[2010] QCA 79
Decision Date

CaseChat Overview and Summary

In the case of R v Silva, the appellant was convicted of conspiring with co-offenders Jackson and Nudd to import a commercial quantity of cocaine into Australia from Mexico. The extradition proceedings alleged that the cocaine was loaded in Colombia. The appellant sought to appeal against his conviction and sentence, arguing that there was a miscarriage of justice due to the primary judge's refusal to allow cross-examination of investigators about the alleged loading in Colombia. The appellant also contended that the jury was misdirected in drawing inferences from a tape-recorded conversation linking him to the conspiracy.

The legal issues before the court included whether the primary judge erred by not allowing cross-examination of the investigators, whether the jury was properly directed on drawing inferences from the tape-recorded conversation, and whether the sentence imposed was manifestly excessive. The appellant argued that the cross-examination should have been allowed to determine the adequacy of the police investigation and that the assertions in the extradition materials regarding Colombia should be admissible as admissions against interest. Additionally, the appellant submitted that the primary judge misdirected the jury regarding the inferences to be drawn from the tape-recorded conversation and that his sentence was not proportionate to those of his co-offenders.

The court found that the primary judge did not err in refusing to allow cross-examination of the investigators as the matter was not relevant to the charge. The court also held that the jury was properly directed on drawing inferences from the tape-recorded conversation. Regarding the sentence, the court determined that it was not manifestly excessive despite the mitigating factors present. Consequently, the appellant's appeal against conviction was dismissed, and his application for leave to appeal against sentence was refused.

The orders of the court were that the appellant's appeal against conviction be dismissed and that the appellant's application for leave to appeal against sentence be refused.

Orders

Orders of the court

The appellant's appeal against conviction be dismissed;1.

The appellant's application for leave to appeal against sentence be refused.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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