Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Da Silva v R [2016] NSWCCA 40 Hearing dates: 11 March 2016 Decision date: 11 March 2016 Before: Basten JA at [1]; R A Hulme J at [30]; Button J at [31] Decision: (1) Extend the time for lodging an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act from the judgment of Johnson J delivered on 14 December 2015. (2) Refuse leave to appeal. Catchwords: APPEAL – bias – interlocutory appeal – pre-trial management in relation to trial on indictment – judge drew authorities to parties' attention before hearing – whether that conduct indicated pre-judgment PRACTICE AND PROCEDURE – criminal appeal – application to stay trial pending committal hearing – committal hearing waived – application to waive signed by applicant's solicitor – DPP finds bill – applicant arraigned – no indication as to purpose of committal – whether application futile – Criminal Procedure Act 1986 (NSW), s 68, s 91 PRACTICE AND PROCEDURE – criminal appeal – application for change of venue due to pre-trial publicity – whether jury selection likely to fail to produce impartial jury - Jury Act 1977 (NSW), s 38; Criminal Procedure Act 1986, s 30 Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 30, 68 Jury Act 1977 (NSW), s 38 Cases Cited: Barron v Attorney General (1987) 10 NSWLR 215 Barton v The Queen (1980) 147 CLR 75 Crowe v Director of Public Prosecutions (NSW) [2015] NSWSC 747 Hiroti v The Queen [1997] NTSC 103; 140 FLR 366; 95 A Crim R 72 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Potier v Magistrate Maloney [2005] NSWSC 336 R v Rawlinson [2013] NSWSC 1722 Sergi v Director of Public Prosecutions (Court of Appeal, unrep, 10 September 1991) Category: Principal judgment Parties: Ricardo Francis Herman Da Silva (Applicant) Regina (Respondent) Representation: Counsel: Applicant self-represented Mr E Balodis (Respondent) Solicitors: Applicant self-represented Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/361049 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2015] NSWSC 1909 Date of Decision: 14 December 2015 Before: Johnson J File Number(s): 2013/361049 Judgment 1. BASTEN JA: The applicant, Ricardo Da Silva, is due to stand trial for murder, commencing on 26 April 2016 in the Supreme Court at Newcastle. On 8 December 2015 he filed a motion seeking orders that the trial date be vacated and the matter remitted to the Local Court for a committal hearing and otherwise that the venue for the trial be changed from Newcastle to Sydney. On 14 December 2015 Johnson J dismissed the motion. [1] The applicant has sought leave to appeal from the order dismissing the notice of motion. 2. Pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) an accused person in proceedings for prosecution on indictment in the Supreme Court has a right to seek leave to appeal from an interlocutory judgment or order given or made in the proceedings. The Prosecutor concedes that the order made by Johnson J was an interlocutory order and that the Court has jurisdiction under s 5F to consider the application for leave and, if granted, the appeal. Nevertheless, the prosecutor submits that the application for leave should be refused on two bases. The first is that the grounds lack merit; the second is that the application is out of time. Indeed, because the appeal lacks merit, the prosecutor says the extension of time should be refused. 3. The application was dated 18 February 2016, but was not filed in the Court until 26 February 2016. An affidavit sworn on 18 February 2016 was filed at the same time as the application. An annexure to the application gave adequate reasons for the delay. The appropriate course is to grant an extension of time up to and including 26 February 2016. 4. The operative relief sought involved two orders, namely, (a) to have the matter stayed and returned for a committal hearing in the Local Court at Wyong and (b), if necessary, to have the trial returned to Sydney. This morning, the applicant has emphasised the second of the two orders sought. In respect of the first matter, the grounds alleged a denial of procedural fairness and an abuse of process, presumably based upon proceeding to trial on an indictment without a committal hearing. There was also an allegation of pre-judgment by Johnson J, relating to his refusal to grant this particular order. 5. With respect to the change of venue, the grounds identified were "high likelihood of jury bias" and "denial of adequate facilities to prepare a defence." The emphasis in the submissions this morning has been on the likelihood that there will be difficulties in obtaining through a jury selection process conducted in Newcastle, a jury which is able to deal fairly with the trial and the accused. 6. With the exception of the claim of bias on the part of the primary judge, neither the application nor the affidavit identified errors in the reasoning of the primary judge, but rather sought to re-agitate factual matters which had been raised before him. It is appropriate to deal first with the allegation of bias by way of pre-judgment. Prejudgment of application 1. The allegation of pre-judgment was based entirely upon an email message from the associate to Johnson J dated 8 December 2015 (six days before the hearing of the motion) addressed to the applicant's solicitor. It attached copies of two judgments, namely Potier v Magistrate Maloney [2] and Crowe v Director of Public Prosecutions (NSW). [3] 2. Potier was a case in which an accused sought a further committal hearing on the basis that an earlier committal had miscarried. The judge concluded that, the Director having determined to proceed in the District Court by filing an indictment, the magistrate's decision to commit the accused for trial had been "overtaken by the decision to find a bill". [4] That case followed a line of authority to similar effect, referred to in Crowe and dating back to Sergi v Director of Public Prosecutions. [5] 3. Given that the applicant's notice of motion sought similar relief, it was appropriate for the primary judge to draw the attention of his legal representatives to authority which, if not distinguishable, appeared to stand in his way. 4. It is not entirely clear whether this ground alleged actual pre-judgment (of which there was no evidence) or merely a reasonable apprehension of pre-judgment. The latter invokes a lesser test, namely an objective (rather than a subjective) test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issue for determination. [6] Even by that relaxed standard, the complaint fails. The exchanges between the Court and lawyers will regularly lead to the judge raising for consideration legal authority which may be against the application being presented. That authority may be known to the lawyer appearing, especially if, as in this case, it is counsel with long experience in criminal law and practice. 5. The judge, it may be noted, was not determining any criminal proceeding; he was merely dealing with an interlocutory application relating to pre-trial procedures. The application was by no means unimportant; it was, however, dealt with in one of a number of pre-trial hearings routinely held and designed to ensure that, once a jury is empanelled, the criminal trial will proceed expeditiously and without unnecessary delay. By way of illustration, the present matter was in the arraignment list on 11 September 2015. It had previously been the subject of a hearing resulting in a timetable of procedural steps on 5 December 2014 and on 21 August 2015. 6. When the matter was in the list on 14 December 2015, the judge noted that he had earlier transcripts of 5 December 2014 and 11 September 2015, copies of which he made available to counsel. Both parties were represented; Mr Scragg, on behalf of the applicant, made submissions in relation to the orders sought in the motion. There was no complaint about the step taken by the primary judge in drawing the attention of the applicant's representatives to relevant authority, nor in relation to such a matter would complaint be expected. Nevertheless, it is a powerful reason for rejecting the allegation now made. 7. In the course of the hearing on 14 December, the following exchange took place: [7] "HIS HONOUR: What do you want to say in support of paragraph 1 of the notice of motion? SCRAGG: The application is upon the basis that the accused was denied the opportunity to have or to participate in a full committal hearing, your Honour. HIS HONOUR: Well, even if he was, where would that take it? This matter has been in this Court for more than a year. He was arraigned and pleaded not guilty in December last year. The matter has not progressed very far this year. Lawyers have been changed. The Crown has referred to the relevant cases. I think two of those cases I brought to the attention of your solicitor last week, through my Associate. SCRAGG: Yes. HIS HONOUR: So I would like you to move directly to deal with those questions. SCRAGG: Well, I have read those cases, your Honour, and I understand what those cases provide for your Honour. All I can say, your Honour, is that I seek to distinguish those cases that in this case the committal proceedings were waived when the accused had not given his instructions to waive the committal and in those circumstances, your Honour, I seek to distinguish it. That there, in my submission, has been a failure to provide the accused with his entitlement to seek to have a full committal hearing, if I can put it that way. 1. The issues which were raised, and others which might have been raised, were addressed by the primary judge; there was nothing in the transcript or the supply of relevant authorities which gave any hint of inappropriate pre-judgment. The allegation of bias is without substance and leave to raise the matter should be refused. Request for committal hearing 1. The first substantive order sought before the primary judge, and to be sought in this Court if leave to appeal be granted, is for a committal hearing before the Local Court. 2. Following the murder in May 2010, the applicant was arrested and charged with a related but presently immaterial offence. (It gained some publicity relied on in relation to the next matter.) On 30 November 2013 he was arrested and charged with murder. There appear to have been about 11 appearances before the Local Court prior to 8 October 2014, when his solicitor signed a document waiving his right to a committal hearing. 3. Pursuant to s 68 of the Criminal Procedure Act 1986 (NSW), a magistrate may at any time on the application of an accused person, and with the consent of the prosecutor, commit the accused for trial. On 8 October 2014 the accused was committed for trial to the Supreme Court. The application was signed by the applicant's then solicitor and by the prosecutor. The applicant has since repeatedly asserted that that step was taken without his instructions and contrary to his wishes. It appears from the applicant's affidavit of 18 February 2016 that instructions were not formally withdrawn from that firm until 3 August 2015. Shortly thereafter, a grant of legal aid was transferred to the applicant's next solicitor, who acted until after the decision under appeal, but no longer does. Further details of the history were set out by the primary judge. [8] 4. In his affidavit filed before the primary judge and dated 8 December 2015, in addition to complaining about the waiver of a committal hearing having occurred without his consent, the applicant stated that he wished "to have a committal hearing so counsel can consider whether to seek [to] have witnesses attend and give evidence". At that stage it appeared that he was unable to identify any particular witness whose attendance would be required and counsel appearing for him before the primary judge was unable to assist further in that respect. The matter was not further advanced in his affidavit of 18 February 2016. Nothing further was put in respect of that issue this morning. 5. Nor has the applicant identified any error on the part of the primary judge. His affidavit complained only of counsel's failure to direct the primary judge to legal authority to support an order for a committal hearing. He did, however, annex a letter of 20 November 2015 requesting of his counsel that the Court be referred to a passage in the judgment of the High Court in Barton v The Queen, [9] and to Barron v Attorney General [10] and Hiroti v The Queen. [11] 6. Barton and Barron are both decisions applying general law principles, and pre-date the Criminal Procedure Act. Even if Barron were to be applied in its terms, the applicant would fail: like the claimant in that case, he has not demonstrated what actual prejudice would flow from his loss of an opportunity to cross-examine prosecution witnesses. 7. As with Barton and Barron, Hiroti involved a different statutory scheme applicable in the Northern Territory. Although the instructions to rely on these cases are in truth beside the point, they would not have assisted him. Had he read the cases the judge referred to his lawyers, he would have seen, for example, that Barton was addressed and no longer has the force he seems to have ascribed to it. (Indeed even his own preferred authority, Barron, indicates that.) 8. The scheme which applies in this jurisdiction and which was addressed by the primary judge, requires attention to the terms of s 91 of the Criminal Procedure Act. That section requires substantial reasons why a witness should attend for cross-examination. As the judge noted, [12] counsel not being in a position to identify any witness in relation to whom such a submission could be put, the argument failed at the first stage. Having reviewed the prosecution's statement of its case, the primary judge was also not satisfied that there was any real prospect of the accused not being committed for trial. [13] 9. The legal principles applied by the primary judge were set out in the following passages: "[23] 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; [14] Sergi v Director of Public Prosecutions; [15] V v McDonald; [16] Potier v Magistrate Maloney & Ors; Crowe v Director of Public Prosecutions. [24] 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 (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." 1. In the absence of any plausible submission as to error on the part of the primary judge, the Court should decline leave to appeal from this aspect of the orders refusing referral for a committal hearing. Change of venue 1. The applicant's submissions supported a change of venue to Sydney on two bases. One involved an assertion that the applicant's "legal team" is from Sydney, giving rise to difficulties of communication and expense if the trial were to be conducted in Newcastle. The basis of that submission is unclear, as, according to his affidavit, he withdrew his instructions from the lawyers who were representing him in December 2015 and had not then instructed lawyers to replace them. This morning, he indicated that lawyers had been instructed and legal aid had been provided so that he will be represented at the trial. The basis of the contention was not, however, otherwise addressed in submissions this morning. 2. This ground does not appear to have been the basis of his instructions prior to the hearing before the primary judge and would, in any event, have been unlikely to attract a favourable outcome. Rather, the focus was entirely upon media publicity, raising sympathy for the victim, Ms Carter, who was a popular school teacher and well-known in the local community, and prejudice against the accused. Although the material is no doubt still available on the internet, that submitted to the primary judge did not go beyond the time of his arrest in 2013, with one exception in December 2014. 3. The application engaged the power conferred on the Court by s 30 of the Criminal Procedure Act which permits the Court to change the venue if it appears to the Court (a) that a fair or unprejudiced trial cannot otherwise be had or (b) that for any other reason it is expedient to do so. 4. The applicant referred the Court to the judgment in Rawlinson v R, [17] a case in which Harrison J considered and rejected a similar application in relation to a trial for a well-publicised murder in Wollongong. The accepted principles were applied; each case will turn on its own facts. 5. In this case, the trial judge set out in unexceptionable terms the principles to be applied and referred to the publicity in the media which had surrounded the circumstances of Ms Carter's death. He was not satisfied that, adopting proper jury selection procedures, pursuant to s 38(7) of the Jury Act 1977 (NSW), a fair trial could not be held in Newcastle. Accordingly he declined to make the order changing the venue to Sydney. Although the applicant suggested that in Rawlinson practical problems arose when the trial was listed in Wollongong, that is no reason for interfering with the decision of the trial judge in the present case. There is no reason to grant leave to appeal in respect of this matter. Conclusions 1. Although the applicant should have an extension of time within which to bring the application for leave to appeal, leave should be refused. Accordingly, the Court should make the following orders: (1) Extend the time for lodging an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act from the judgment of Johnson J delivered on 14 December 2015. (2) Refuse leave to appeal. 1. R A HULME J: I agree. 2. BUTTON J: I agree. ********** Endnotes 1. R v Dasilva [2015] NSWSC 1909. 2. [2005] NSWSC 336. 3. [2015] NSWSC 747. 4. Potier at [68]. 5. Court of Appeal, unrep, 10 September 1991 (Kirby P, Meagher and Handley JJA) extracted at [24] in Crowe. 6. See Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]. 7. Tcpt, 14/12/15, pp 5(39)-6(10). 8. Dasilva, at [8]-[16]. 9. (1980) 147 CLR 75. 10. (1987) 10 NSWLR 215. 11. [1997] NTSC 103; 140 FLR 366; 95 A Crim R 72. 12. Dasilva at [25]. 13. Dasilva at [26]. 14. (1991) 24 NSWLR 66. 15. Court of Appeal, 10 September 1991, unrep, BC9101577. 16. Court of Appeal, 16 February 1995, unrep, BC9504205. 17. [2013] NSWSC 1722. Amendments 29 June 2016 - publication restriction removed 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: 29 June 2016