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Court of Criminal Appeal 11 March 2016

Da Silva v R

[2016] NSWCCA 40

HomicidePublic order & justice offences
APPEAL BIAS INTERLOCUTORY APPEAL PRE WHETHER THAT CONDUCT INDICATED PRE JUDGMENT PRACTICE AND PROCEDURE

Citation: Da Silva v R [2016] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 11 March 2016
Judges: Basten JA; R A Hulme J; Button J

Background

The applicant was committed to stand trial in the Supreme Court at Newcastle for murder. Prior to trial, his solicitor had signed a document waiving the applicant's right to a committal hearing. The applicant later asserted that this step was taken without his instructions and contrary to his wishes.

On 8 December 2015, the applicant filed a motion seeking two orders: to have the matter remitted to the Local Court for a committal hearing, and to have the trial venue changed from Newcastle to Sydney. Johnson J dismissed both applications on 14 December 2015.

The applicant sought leave to appeal that interlocutory order under s 5F of the Criminal Appeal Act 1912 (NSW). Three grounds were pressed: alleged pre-judgment by Johnson J, denial of a committal hearing, and a high likelihood of jury bias in Newcastle due to pre-trial publicity.

  • Whether Johnson J's conduct in forwarding relevant case authorities to the applicant's solicitor before the hearing gave rise to a reasonable apprehension of pre-judgment (bias)
  • Whether the applicant was entitled to be remitted for a committal hearing in circumstances where his solicitor had signed a waiver and the DPP had since filed an indictment
  • Whether the trial venue should be changed from Newcastle to Sydney on the basis that pre-trial publicity made it unlikely that an impartial jury could be selected

Decision

Bias allegation: The Court found the allegation of pre-judgment entirely without substance. Johnson J's associate had emailed the applicant's solicitor copies of two relevant judgments in advance of the hearing. The Court held that a judge drawing parties' attention to potentially applicable authority before a hearing is orthodox practice and does not, by any objective measure, suggest a closed mind. Applying the test from Johnson v Johnson (2000) 201 CLR 488, a fair-minded lay observer would not reasonably apprehend that the judge might not bring an impartial mind to the question. The failure to raise any complaint about this conduct at the hearing itself was also noted as a telling consideration.

Committal hearing: The Court confirmed the established line of authority that, once the DPP has found a bill and filed an indictment, any question about the adequacy of committal proceedings becomes futile. The applicant was arraigned and pleaded not guilty. Even accepting that the waiver may have been signed without the applicant's instructions, the relief sought (remittal to the Local Court) could serve no purpose in those circumstances. The application had no practical utility and leave to agitate the matter was refused.

Change of venue: Johnson J had applied the correct principles under s 30 of the Criminal Procedure Act 1986 (NSW) and s 38(7) of the Jury Act 1977 (NSW), concluding that proper jury selection procedures were capable of producing an impartial jury in Newcastle despite pre-trial publicity. The Court of Criminal Appeal found no error in that reasoning. A reference by the applicant to practical difficulties said to have arisen in a Wollongong trial (R v Rawlinson) did not provide a basis to interfere with the primary judge's discretionary decision.

Orders Made

  • Extension of time granted for lodging an application for leave to appeal (to 26 February 2016)
  • Leave to appeal refused

Key Takeaways

  • A judge forwarding relevant authorities to the parties before a hearing does not, without more, give rise to a reasonable apprehension of bias. Such conduct is consistent with sound pre-trial case management.
  • Once the Director of Public Prosecutions has filed a bill of indictment and an accused has been arraigned, an application to remit the matter for a committal hearing is rendered futile regardless of the circumstances in which the original committal waiver was signed.
  • Under s 30 of the Criminal Procedure Act 1986 (NSW), a change of venue requires the court to be satisfied that a fair trial cannot otherwise be had; the availability of proper jury selection procedures under s 38(7) of the Jury Act 1977 (NSW) is a material consideration in that assessment.
  • In dismissing all three grounds, the Court of Criminal Appeal confirmed that interlocutory leave applications under s 5F of the Criminal Appeal Act 1912 (NSW) will not be granted where the grounds lack merit, even where an extension of time is otherwise warranted.
  • Where a ground of bias is not raised as a complaint at the time of the impugned conduct, that silence carries significant weight against the allegation on appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 30, 68
- Jury Act 1977 (NSW), s 38

Cases:
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Potier v Magistrate Maloney [2005] NSWSC 336
- Crowe v Director of Public Prosecutions (NSW) [2015] NSWSC 747
- Sergi v Director of Public Prosecutions (Court of Appeal, unreported, 10 September 1991)
- R v Rawlinson [2013] NSWSC 1722
- Barton v The Queen (1980) 147 CLR 75
- Barron v Attorney General (1987) 10 NSWLR 215
- Hiroti v The Queen [1997] NTSC 103; 140 FLR 366; 95 A Crim R 72