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 1. JOHNSON J: By Notice of Motion filed on 8 December 2015 the Accused, Ricardo Francis Herman Dasilva, seeks the following orders: 1. 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; 2. that the venue of the Accused's trial be changed from the Newcastle Supreme Court to the Supreme Court sitting in Sydney; 3. such other order as the Court thinks fit. 1. 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. 2. The Crown has read, on this application, the affidavit of Marguerite Vassall sworn 14 December 2015. Factual Background 1. A chronology of relevant events is important to the determination of this application. 2. 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 pre-existing relationship between the Accused and Ms Carter which, according to the Crown Case Statement, had broken down. Ms Carter was found lying in her bed with severe injuries to her head. 3. On 30 November 2013, the Accused was arrested and charged with the murder of Ms Carter. 4. The proceedings came before the Wyong Local Court where they were stood over from time to time until 8 October 2014. On that date, the Magistrate committed the Accused for trial. 5. In taking that course, the Magistrate noted that the solicitor for the Accused had signed an application to waive a committal hearing for the purpose of s.68 Criminal Procedure Act 1986. That provision allows a Magistrate to commit a person for trial without a committal hearing, in circumstances where the Accused so applies and the prosecution consent to that course. Exhibit A indicates that the Accused's then solicitor made a waiver application on his behalf. 6. The Accused appeared in the Supreme Court before me in the Arraignments List on 5 December 2014, on which occasion he was represented by Ms Evers of counsel. He was arraigned and entered a plea of not guilty to the charge of murder, and a trial was fixed for the Sydney Supreme Court commencing on 24 August 2015. 7. The matter came before RA Hulme J, the allocated trial Judge, on dates in April, July and August 2015. 8. On 14 August 2015, his Honour was informed that the Accused had determined finally to withdraw his instructions from his legal representatives, that issue having been flagged at an earlier mention. 9. On 21 August 2015, Mr Flynn of counsel appeared for the Accused, instructed by Mr Tehseldar, the solicitor who remains the solicitor on the record for the Accused. In circumstances where the trial date was only three days away, the defence applied to vacate the trial and his Honour acceded to that application. 10. The matter came before me once again as Criminal List Judge on 11 September 2015. At that time, Mr Flynn of counsel, appeared and a trial was listed in the Supreme Court at Newcastle on 26 April 2016. 11. On 5 November 2015, the matter came before RA Hulme J again for mention. Mr Flynn advised his Honour that he could not continue in the matter and that new counsel was to be briefed. 12. In early December 2015, email contact was made with the chambers of RA Hulme J, indicating that Mr Scragg of counsel would now appear for the Accused and that certain pretrial applications were to be made. 13. That contact culminated in the filing of the Notice of Motion on 8 December 2015 which is before me today for hearing. Application for Remittal to Local Court for Committal Proceedings 1. The first paragraph of the Notice of Motion seeks that the present trial date be vacated, to allow the proceedings against the Accused to be remitted to the Local Court for a committal hearing. In support of this claim for relief, the affidavit of the Accused sworn 4 December 2015 states that the waiver given by his then solicitor on 8 October 2014 before the Wyong Local Court, was given without the consent of the Accused. He states in his affidavit that at no time did the solicitor obtain his consent, or obtain instructions to waive his right to a committal hearing. 2. The Accused states in his affidavit that he wishes to have a committal hearing so counsel can consider whether to seek to have witnesses attend and give evidence pursuant to an order under s.91 Criminal Procedure Act 1986, and so that counsel could put submissions as to why he should not be committed for trial pursuant to ss.64 and 66 Criminal Procedure Act 1986. 3. I should note that the affidavit of Ms Vassall, relied upon by the Crown, indicates that efforts have been made to contact the solicitor then appearing for the Accused, so as to obtain his account concerning the contents of the Accused's affidavit, but that no response has been received from that solicitor. 4. The Crown submits, that whether or not the Accused consented to the waiver of committal, the point has long passed when any useful remedy could be sought by the Accused with respect to such an alleged shortcoming. 5. It is not necessary, for the purpose of this application, to make any final determination on the question of what happened at the Wyong Local Court on 8 October 2014. I will proceed upon the basis, by way of assumption, that what the Accused asserts is what happened. I emphasise that I am not making any finding to that effect for the purpose of this application. The real question is what would flow if such a state of affairs was established. 6. Decisions of the Court of Appeal, and of single Judges of this Court, have emphasised a number of matters. 7. Firstly, the holding of committal proceedings is not a condition precedent to a trial on indictment in the Supreme or District Court: R v Butler (1991) 24 NSWLR 66; Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, unreported, BC9101577); V v McDonald (Court of Appeal, 16 February 1995, unreported, BC9504205); Potier v Magistrate Maloney & Ors [2005] NSWSC 336; Crowe v Director of Public Prosecutions [2015] NSWSC 747. 8. Secondly, where a bill of indictment has been found, the effect is that the criminal proceedings against a person, in the position of the Accused, have been commenced, in effect, in the higher Court. The authorities that I have referred to (at [23] above) demonstrate clearly that the Crown exercises prosecutorial discretion in filing a bill and that once that happens, it is rare in the extreme that the higher Court would consider taking any step other than to proceed with the trial. The exception to that may be in a case where it could be demonstrated that it would be an abuse of process to proceed to trial. That is not asserted here, nor, on my understanding of the case, could it be asserted. 9. The argument here, at its highest, is that the Accused, but for the waiver of the committal, would have wished to apply to have witnesses attend to be cross-examined at the committal proceeding. For that to happen, it would have been necessary for substantial reasons to be identified and found by a Magistrate: s.91 Criminal Procedure Act 1986. It has been acknowledged fairly by Mr Scragg, who appears for the Accused, that he is not in a position at present to identify any witness in relation to whom such a submission could be put. 10. The other aspect, of which the Accused complains, is that he wishes to have a committal proceeding so that an argument could be put to a Magistrate as to why he should not be committed for trial: ss.64 and 66 Criminal Procedure Act 1986. The Crown Case Statement summarises what is clearly a circumstantial case but one which, on its face, appears to be a substantial case against the Accused. It is difficult to see that there would have been any real prospect of the Accused not being committed for trial. 11. It was submitted by Mr Scragg that the position may be different if witnesses attended for cross-examination. That, of course, is an entirely theoretical state of affairs. It is difficult to see that any cross-examination of witnesses, in the context of this case, would have given rise to any realistic prospect of discharge at committal. 12. But even if the Magistrate had discharged the Accused at committal, the Crown has already determined to proceed in the Supreme Court, and in fact has done so. The case has long passed the entry point to this Court. It is more than a year since the Accused was arraigned and pleaded not guilty to the charge. One trial date has been fixed and vacated, and another trial date has now been fixed. 13. It may be inferred that there have been issues between the Accused and his legal representatives which have caused some delay, but the simple fact is that this Court is seized of this matter. Even if there was some irregularity of some sort with respect to the committal proceeding (and I am not so finding), the outcome is clear that this Court would decline to intervene because the matter is in the Supreme Court for trial. 14. It remains open to the Accused to make pretrial applications in this Court. I say nothing about the merits of any possible application. I am merely echoing what has been said in earlier decisions where an argument has been advanced relating to suggested deficiencies in committal proceedings. 15. I decline to vacate the trial date fixed for 26 April 2016 and I decline to remit the matter to the Local Court. The relief sought in paragraph 1 of the Notice of Motion is refused. Application for Change of Venue of Trial 1. I turn then to the application by the Accused for a change of venue of the trial from Newcastle to Sydney. 2. In this respect, I note that the Court is considering an application to change venue for the purpose of s.30 Criminal Procedure Act 1986. That provision states that, in any criminal proceedings, if it appears to the Court that a fair or unprejudiced trial cannot otherwise be had or that, for any other reason, it is expedient to do so, the Court may change the venue, and direct the trial be held in such other district or at such other place as the Court thinks fit and may for that purpose make all such orders as justice appears to require. 3. The principles to be applied on such an application have been referred to in a number of decisions. It is sufficient to refer to the judgments of Badgery-Parker AJ in R v Privett [1999] NSWSC 1074 and of Harrison J in R v Rawlinson [2013] NSWSC 1722. 4. When an accused person seeks a change of venue, he bears the onus of demonstrating to the Court, relevantly for present purposes, that a fair or unprejudiced trial cannot otherwise be had: R v Privett at [4]; R v Rawlinson at [10]. 5. In support of the change of venue application, the Accused relies upon the affidavit of Mr Tehseldar, which annexes a significant number of press printouts, revealing substantial media publicity surrounding the discovery of the body of Ms Carter and the subsequent police investigation, and of aspects of the Accused and his past relationship with Ms Carter. 6. There are some 22 articles annexed to the affidavit - three of them in fact originate from Newcastle, seven are "The Sydney Morning Herald" articles and six are "The Daily Telegraph" articles. Three are from the "Central Coast Express Advocate". 7. It may be accepted that the circumstances of the death of Ms Carter and the subsequent police investigations did attract wide publicity, in particular on the Central Coast and, to an extent, in Newcastle and Sydney. There is reference in particular to the fact that Ms Carter was a well-known local figure in the sport of soccer. She coached a team and also refereed in the Wyong and Newcastle areas, and these matters were touched on from time to time in the media clippings. It may be accepted then that there was wide publicity of these matters, albeit for a period mainly in 2010 but also into 2013 and 2014. 8. It is not unexpected that the circumstances of an alleged murder, and the charging of a person with that murder, will attract publicity: Dupas v The Queen [2010] HCA 20; 241 CLR 237 at 250-251 [36]. The question really is whether the position is such that a fair or unprejudiced trial of the Accused cannot be held in Newcastle. 9. The Court must approach applications of this sort bearing in mind two important matters. Firstly, the trial Judge will, as part of the process of selection of a jury, ensure that the jury panel is made aware of persons who will be the subject of the trial, including Ms Carter and her background and involvement in the community: s.38(7) Jury Act 1977. Experience shows that members of the panel who know a person associated with a trial will seek to be excused for that reason. 10. The second aspect, which is of fundamental importance, is that courts operate on the basis that persons selected to serve on juries will act on the evidence and in accordance with the directions of the trial Judge. Spigelman CJ has observed, that the days when juries were regarded as fragile, and open to the influence of what they may read in the media, are long gone: R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at 261 [17]. 11. Contemporary juries are independent, and take seriously their oaths or affirmations to deal with a matter in accordance with the evidence: R v Jamal at 262 [21]; Dupas v The Queen at 247-249 [26]-[29]. 12. In a particular case, it may be that evidence concerning possible local prejudice is so overwhelming that those considerations may be outweighed, but this is not such a case. 13. In my view, it is appropriate to proceed upon the basis that a Newcastle jury, empanelled after appropriate jury selection measures, will try the Accused fairly and in accordance with the evidence and directions given by the trial Judge. 14. Accordingly, I decline to change the venue of the trial, which remains as a trial fixed for the Newcastle Supreme Court on 26 April 2016. Conclusion 1. The Accused's Notice of Motion filed 8 December 2015 is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2016