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Silva v The Queen

Silva v The Queen

Case [2016] NSWCCA 284 7 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Silva v R [2016] NSWCCA 284
Hearing dates: 27 June 2016
Decision date: 07 December 2016
Before: Leeming JA at [1];
McCallum J at [89];
R S Hulme AJ at [113]
Decision:
1. Allow the appeal.

2. Quash the appellant’s conviction for manslaughter and the sentence imposed by Hoeben CJ at CL on 6 March 2015.
3. Direct that a judgment and verdict of acquittal be entered.
Catchwords: Criminal law – manslaughter – self-defence – verdict unreasonable
Legislation Cited: Civil Liability Act 2002 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Crimes Act 1900 (NSW), ss 23, 418, 419, 421
Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Phillips v R [2016] NSWCCA 159
Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204
R v Esho; R v Sako [2001] NSWCCA 415
R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202
The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
Whitmore v R; R v Whitmore [2010] NSWCCA 157
Category: Principal judgment
Parties: Jessica Silva (Appellant)
Regina (Respondent)
Representation:
Counsel:
G Scragg (Appellant)
N Adams (Crown)
Solicitors:
Lawyerscorp (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/153148
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court NSW

Jurisdiction:

Criminal

Citation:

[2015] NSWSC 148

Date of Decision:

6 March 2015

Before:

Hoeben CJ at CL

File Number(s):

2012/153148

Judgment

LEEMING JA: The single issue presented by this appeal is whether it was open to the jury to be satisfied beyond reasonable doubt that Ms Jessica Silva was guilty of manslaughter. She maintains that the jury’s verdict was unreasonable and cannot be supported having regard to the evidence, and that this Court should quash her conviction and acquit her.
Ms Silva killed Mr James Polkinghorne on the evening of 13 May 2012. It was not in issue that he had been stabbed by her, five or six times, in the back and the back of the head, although only one of the wounds was fatal.
Ms Silva was charged with murder, and tried before Hoeben CJ at CL and a jury of twelve. After a trial lasting 11 days, the jury returned a verdict of not guilty of murder but guilty of manslaughter. She was sentenced to a term of imprisonment of 18 months, the whole of which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW): R v Silva [2015] NSWSC 148. As is reflected by the sentence, the circumstances faced by Ms Silva were horrendous.

The abusive relationship between Ms Silva and the deceased

The deceased had been Ms Silva’s partner for around four years, and there was a two…

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 Silva v The Queen

Details

AGLC: Silva v The Queen [2016] NSWCCA 284
Case: [2016] NSWCCA 284
Decision Date: 07 December 2016

CaseChat Overview and Summary

The High Court of Australia was called upon to review a decision of the Court of Criminal Appeal of Queensland in Silva v The Queen. The appellant was convicted of manslaughter for the death of a man following a physical altercation. Silva argued that his actions were in self-defence and that the jury's verdict was unreasonable. The central issue was whether the jury's verdict, finding the appellant guilty of manslaughter, was unreasonable or irrational in light of the evidence presented. This involved examining the principles of self-defence and whether the jury had applied them correctly in reaching its decision.

The High Court examined the applicable principles of self-defence, emphasising that a defendant is entitled to use reasonable force to defend themselves from an attack. The court noted that the jury was required to consider whether the appellant's response was proportionate to the threat faced. The Court held that in assessing whether the verdict was unreasonable, the jury's consideration of the evidence and the application of the law to that evidence was crucial. The court concluded that the jury had indeed considered the evidence and applied the principles of self-defence correctly. The Court of Criminal Appeal had rightly found that the jury's verdict was not unreasonable or irrational.

As a result, the High Court upheld the decision of the Court of Criminal Appeal, dismissing the appeal. The appellant's conviction for manslaughter stood affirmed. The court did not order any further proceedings, as it found no basis to overturn the jury's verdict or the subsequent decisions of the lower courts.

Orders