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Supreme Court 21 April 2016

R v Da Silva

[2016] NSWSC 499

Homicide
PRACTICE AND PROCEDURE APPLICATION TO VACATE TRIAL DATE MURDER CIRCUMSTANTIAL CASE

Citation: R v Da Silva [2016] NSWSC 499
Court: Supreme Court of New South Wales
Date: 21 April 2016
Judge: Harrison J

Background

The accused faced a murder charge arising from the death of a 46-year-old schoolteacher at her home at Woongarrah on or about 16 May 2010. The accused and the deceased had met through an online dating site in 2006 and formed a relationship that deteriorated significantly in 2009 and early 2010. The Crown's case was circumstantial, relying heavily on tendency and coincidence evidence, with some 64 witnesses proposed to be called.

The trial was listed to commence in Newcastle on 26 April 2016, with an estimate of six weeks. The accused had been in custody since late 2013 after not being charged until approximately three and a half years after the death. There had been a prior vacated trial date in August 2015, following a change of solicitors.

The accused's current solicitors had only been assigned the Legal Aid grant in early March 2016, giving them limited time to prepare. The application to vacate the trial rested on several grounds, most notably the need for an expert to examine the deceased's computers to identify whether she had been in contact with unknown persons through online dating sites.

  • Whether the trial date should be vacated to allow a forensic expert to examine the deceased's computers for evidence of contact with unknown third parties via online dating platforms.
  • Whether the examination of those computers could reasonably be expected to advance a hypothesis consistent with the accused's innocence.
  • Whether additional time was necessary to address other preparedness concerns, including CCTV material, subpoenas, and the volume of evidence requiring review.

Decision

Harrison J refused the application to vacate the trial date. On the central question of the computer examination, his Honour found that the prospect of that exercise advancing a hypothesis consistent with innocence was not sufficiently established. The police investigation was already known to have been incomplete with respect to the deceased's computer, and the deceased's use of online dating sites was not in dispute. Crucially, his Honour reasoned that leaving the contents of the computers unexamined would more likely benefit the accused at trial than exposing them fully, since any residual doubt about what they might reveal could itself support a defence argument.

On the CCTV material, his Honour expressed the view that such footage, accompanied by a schedule or commentary, was not particularly difficult or time-consuming to master and was manageable for experienced lawyers within the available time. This ground did not justify a vacation of the date.

Harrison J also gave weight to the interests of lay witnesses, observing that witness memory deteriorates over time. The deceased had died in May 2010, and further delay would only increase the risk that observation evidence would become less reliable. The accused had already been in custody for approximately two and a half years at the time of this application, and the trial date had previously been vacated once.

His Honour acknowledged that legal argument on a tendency notice and a subpoena dispute were scheduled shortly after jury empanelment, and indicated flexibility about the precise commencement of the substantive trial following jury selection, depending on how those matters unfolded.

Orders Made

• The application to vacate the trial listed to commence on 26 April 2016 is refused
• The trial is not required to commence immediately following jury selection unless the parties consent

Key Takeaways

  • Refusing an application to vacate a trial date, the Supreme Court applied the principle from R v Alexandroaia that a court must assess whether the proposed investigative step could reasonably advance a hypothesis consistent with the accused's innocence, not merely that it might conceivably produce something useful.
  • Where the subject matter of a proposed examination (here, the deceased's computer activity on dating sites) was already known and partially in evidence, leaving it unexamined could confer a tactical advantage on the accused rather than prejudice the defence.
  • Witness memory deterioration is a legitimate factor weighing against adjournment in cases involving events from several years prior, particularly where lay observation witnesses are central to the Crown's case.
  • A change of solicitors and the practical constraints of Legal Aid assignment processes did not, on the facts here, create sufficient grounds to override the public and witness interests in proceeding with a long-scheduled trial.
  • The court retained flexibility around the precise sequencing of pre-trial argument and the commencement of substantive proceedings, without disturbing the listed trial date itself.

Legislation and Cases Referenced

Cases:
- R v Alexandroaia (1995) 81 A Crim R 286

Legislation:
No specific legislation was cited in the provided text.