R v Da Silva [2016] NSWSC 499

Supreme Court New South Wales

Medium Neutral Citation: R v Da Silva [2016] NSWSC 499 Hearing dates: 31 March, 19 and 21 April 2016 Date of orders: 21 April 2016 Decision date: 21 April 2016 Before: Harrison J Decision: Application to vacate trial date refused Catchwords: PRACTICE AND PROCEDURE – application to vacate trial date – murder – where defendant seeks time to have an expert examine victim's computers –circumstantial case – where victim possibly in contact with unknown persons via online dating sites – whether examination of computers will advance reasonable hypothesis consistent with innocence Cases Cited: R v Alexandroaia (1995) 81 A Crim R 286 Category: Procedural and other rulings Parties: Regina (Crown) Ricardo Herman Da Silva (Accused) Representation: Counsel: L Carr (Crown) A Moen (Accused)

Solicitors: Director of Public Prosecutions (Crown) Fay Rose Legal (Accused) File Number(s): 2013/361049 Publication restriction: Nil

Judgment 1. HIS HONOUR: Mr Da Silva applies to vacate his trial, presently scheduled to commence in Newcastle on 26 April 2016 with an estimate of six weeks. He is charged that on or about 16 May 2010 at Woongarrah in the State of New South Wales he did murder Amanda Carter. In support of the application Mr Da Silva relies upon two detailed and helpful affidavits sworn by Fouadi Khalil on 29 March and 18 April 2016 respectively. 2. The application is opposed.

Background 1. The following summary is drawn from the Crown Case Statement. I acknowledge that Mr Da Silva has not indicated his acceptance of the truth or accuracy of any of it. 2. Amanda Carter was a 46 year old school teacher at Wyong High School. Mr Da Silva had been employed as a real estate agent working in Charmhaven. He came to Australia from Trinidad and Tobago in 1971. Ms Carter and Mr Da Silva met via an online dating site in 2006. They formed a relationship. In 2009 Mr Da Silva moved into Ms Carter's home in Ivory Crescent, Woongarrah, while simultaneously maintaining his own rented premises in Bonnells Bay. 3. The relationship began to sour in 2009 in association with mutual allegations of infidelity. Notwithstanding that, Mr Da Silva proposed marriage to Ms Carter in November that same year and they became engaged. Things did not improve between them, however, and they separated for the final time on 14 February 2010. Mr Da Silva did not take kindly to the termination of the relationship. Disputes arose concerning Mr Da Silva's possessions at Ms Carter's home and the use of motor vehicles that they owned. 4. On 14 March 2010, an argument occurred at Ms Carter's home. Mr Da Silva left the premises in Ms Carter's motor vehicle and crashed into a pole. He was admitted to hospital where he remained for a few days. Thereafter Mr Da Silva began working odd hours, sometimes arriving at work very early and leaving very late. He was observed by fellow workers to be drinking. This was behaviour that had not been evident prior to the cessation of his relationship with Ms Carter. 5. Towards the end of March 2010, the principal of Wyong High School received a telephone call from a man claiming to be the father of a student at the school, alleging that Ms Carter was having an affair with one of her students. Another similar call was received a few days later. A couple of days after that the principal received an unsigned letter repeating the allegation. Similar letters were sent to the Newcastle Herald on 4 and 11 May 2010 and to the Central Coast Advocate on 30 April 2010. All three letters were written in the same font and Mr Da Silva's left thumbprint was detected on one of them. Further inquiries revealed that the telephone calls to the school principal had been made from Mr Da Silva's place of employment. 6. Meanwhile Mr Da Silva's behaviour became more and more erratic. On 2 April 2010, Ms Carter and Mr Da Silva informed their respective daughters of the relationship breakdown. The following morning Ms Carter attended Toukley police station and informed the police that she had concerns for Mr Da Silva's welfare. A later meeting at a restaurant culminated with Ms Carter calling police indicating that Mr Da Silva was acting strangely. Police arrived and transported Mr Da Silva to Wyong Hospital for assessment. He was provisionally diagnosed with an adjustment disorder. 7. Between approximately this time and the date of her death, Ms Carter either met or resumed a previous association with at least two other men using dating or adult sites. It is known that she had brief sexual encounters with a Mr Mekhdjian and a Mr McElrea. Each of these men has been interviewed by the police and has provided a statement. It is apparent that Mr Da Silva became aware of the fact that Ms Carter had met these men, or at least one of them. Ms Carter became aware that her computer had been accessed by a third party. It is the Crown case that this person was Mr Da Silva. 8. Ms Carter was found dead in her bed with severe head and facial injuries at about 10.00am on Sunday 16 May 2010. Mr Da Silva was not arrested and charged with the offence of murder until late in 2013. He has remained in custody awaiting trial since then.