Citation: Da Silva v R [2012] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 9 May 2012
Judges: Whealy JA, Hidden J, Schmidt J
Background
The appellant was convicted on 4 December 2009 of two counts of armed robbery with wounding arising from a home invasion at Belmont in December 2006. Two co-offenders had already pleaded guilty to related charges. The Crown's case was that the appellant was one of two men who entered the home, shot the male victim twice, threatened the female victim with a machete, and stole approximately $20,000.
The Crown limited its case to placing the appellant inside the house as an active participant, expressly disclaiming any reliance on the possibility that he was the getaway driver. The only direct evidence identifying the appellant as one of the two men inside the house came from his brother, Roy, who gave evidence that the appellant had confessed his involvement and that Roy had seen items connected to the robbery in the appellant's possession.
The defence challenged Roy's credibility vigorously at trial, arguing that his evidence was motivated by spite and fratricidal hostility. The jury accepted Roy's evidence and returned guilty verdicts on both counts. The appellant was subsequently sentenced to fifteen years imprisonment with an eleven-year non-parole period.
Legal Issues
- Whether post-trial statements attributed to the Crown's key witness constituted fresh evidence that had not been available to the appellant at the time of trial.
- Whether that fresh evidence gave rise to a miscarriage of justice sufficient to set aside the convictions and order a new trial.
- Whether the fresh evidence was of sufficient significance that a jury, had it known of those statements, might reasonably have arrived at a different verdict.
Decision
Following the trial, the Office of the Director of Public Prosecutions wrote to the appellant's solicitors disclosing that the Crown witness Roy had telephoned the ODPP prosecutor on 1 June 2010. In that call, Roy stated he had expected a financial reward of up to $25,000 from police for giving evidence, and said words to the effect that the only reason he gave evidence was because he had been offered a reward. A second conversation occurred on 13 July 2010, the content of which the Crown argued somewhat softened the impact of the first.
The Court accepted that this material constituted fresh evidence that was not available to the appellant at trial. The central question under the principles governing fresh evidence appeals (drawn from R v Abou-Chabake) was whether there was a significant possibility that a jury, properly instructed and aware of this material, might have arrived at a different verdict.
Because Roy's evidence was the only material placing the appellant inside the house, and the remainder of the Crown case only established involvement in some form rather than physical presence during the robbery and wounding, the Court found the fresh evidence was directly relevant to the key issue at trial. Had jurors known of Roy's assertion that he gave evidence solely because of an offered reward, there was a significant possibility they would have entertained a reasonable doubt about his truthfulness and reliability.
The Court acknowledged that Roy's statement was capable of alternative interpretations: it might mean he attended trial as a witness because the prospect of reward outweighed his safety fears, rather than that the reward was his original motivation for making his induced statement to police. The Court treated both the initial statement and the follow-up conversation as quintessentially jury questions, concluding that those issues were properly for a jury to resolve rather than for the appellate court to determine. A failure to order a new trial would constitute a miscarriage of justice.
Orders Made
- Time for bringing the appeal extended.
- Both convictions set aside.
- New trial ordered on both counts in the indictment.
- Crown appeal against sentence dismissed (in Chambers, with no opinion expressed on its merits).
Key Takeaways
- Where the only direct evidence placing an accused at the scene of an offence comes from a single witness, post-trial statements by that witness suggesting his testimony was motivated by an expectation of financial reward can constitute fresh evidence sufficient to found a miscarriage of justice.
- Fresh evidence will warrant setting aside a conviction where there is a significant possibility that a jury, aware of the new material, might reasonably have acquitted the accused rather than convicted.
- The Court of Criminal Appeal declined to resolve competing interpretations of the fresh witness statements itself, treating them as questions properly reserved for determination by a jury at a new trial.
- A circumstantial Crown case that strongly suggests general involvement in an offence does not cure a miscarriage arising from compromised identification evidence, where the Crown expressly limited its case to a specific mode of participation (here, presence inside the premises).
- In setting aside convictions and ordering a new trial, the court found it inappropriate to proceed with a Crown sentence appeal, and dismissed it without expressing any view on its merits.
Legislation and Cases Referenced
Cases:
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
Legislation:
- No specific legislation cited in the provided text.