Da Silva v R

The trial 4On 11 November 2009, an indictment was presented against the appellant which contained the following two counts: (1) On 27 December 2006 at Belmont in the State of New South Wales, being armed with an offensive weapon, namely a shotgun, [he] robbed David Reid of a sum of money, at the property of Belmont North Meats and immediately before such robbery wounded David Reid. (2) On 27 December 2006 at Belmont in the State of New South Wales, being armed with a dangerous weapon, namely a shotgun, robbed Christine Huber of a sum of money, at the property Belmont North Meats. 5The trial ran through until 3 December 2009, when the jury retired to consider its verdict. The next day, it returned verdicts of guilty on both counts. 6The Crown case was that on 27 December 2006 at approximately 3.40am an armed robbery had been carried out at the home of David Reid and Christine Huber. Mr Reid was shot twice, sustaining very serious injuries, and Ms Huber was threatened with a machete. Approximately $20,000 was stolen by the thieves. Two men, Kenneth Penfold and Brendan Ward, had subsequently entered pleas of guilty to offences arising from the home invasion. It was the Crown case that Penfold had waited in the car while Ward and another man entered the home. It was the Crown case that the other man was the appellant and it was he who had carried and discharged the firearm. However, the trial judge, when he came to sentence the appellant, found that this last aspect had not been proved beyond reasonable doubt. 7The trial judge had given a concise and comprehensive summing up to the jury, including the provision of carefully prepared written directions. These demonstrated that the real issue in the trial was whether the appellant was one of the two men who had invaded the property at Belmont and carried out the robbery and wounding. 8There was an unusual feature about the trial. Although the Crown relied upon the principles of joint criminal enterprise, it became apparent throughout the trial that the Crown was, in fact, limiting its case to the proposition that the appellant was one of the two men who had been inside the house and carried out the wounding and robbery. The Crown disclaimed any suggestion that it could prove its case by establishing that the appellant was the third man, the driver of the getaway vehicle. 9This came to a head when the jury asked a question following upon their retirement on 3 December 2009. The question was: "Can, in this case, joint criminal enterprise include a possible third person, the accused, not on the premises, or does the joint criminal enterprise relate only to the two persons in the house with the weapons?" 10His Honour gave the following direction to the jury: "In this case the Crown asserts that there were three people, Penfold, Ward and the accused. Ward and the accused went inside the premises, did the robbery and were involved in the shooting and the threats with the machete, and that Penfold was outside in his car. It is not open to you in this case to find the accused guilty on the basis that he may possibly have been the person in the car ... The overriding principle is, how has the Crown conducted the case here? You cannot find the accused guilty of this charge if you think that he may have been elsewhere than inside the house, regardless of the doctrine of joint criminal enterprise. The only way the Crown puts its case here against this accused is that Ward was in the house and that the accused also was." 11There was a significantly powerful circumstantial case brought by the Crown to suggest that the appellant was involved in some way with the robbery. However, the only evidence that pointed directly to his being one of the two men inside the house and involved in the actual robbery and wounding came, unusually, from the appellant's brother, Roy Rodrigues Da Silva. We shall, in these reasons, refer to the witness by his Christian name as "Roy". 12Roy's evidence was, in essence, that the appellant confessed to him his involvement in the robbery and that he (Roy) saw items that were either used in the robbery, or which might be regarded as the fruits of the robbery, in the appellant's possession. 13The Crown case to suggest that the appellant was one of the two robbers/ assailants in the house rested entirely on whether Roy's oral evidence could be believed beyond reasonable doubt. 14The case for the appellant was presented on the basis that the appellant did not participate in the actual robbery at all. The appellant mounted a substantial case against the credit of his brother, Roy, suggesting that he was acting out of spite and fratricidal hatred towards his elder sibling. 15On 15 January 2007, Roy had been interviewed by police. He did not indicate his older brother in this interview, but at trial said he had not told the truth about his knowledge of the robbery at that time because he was "sticking up for his brother". 16On 2 September 2008, however, he made an induced statement to the police which he claimed at trial was a truthful statement. 17The Crown, in its closing submissions to the jury, submitted that the jury could be satisfied beyond reasonable doubt, having regard to the evidence of Roy, that the appellant had been one of the two men inside the premises at Belmont on 27 December 2006. The defence submissions urged the jury to reject the evidence of Roy, having regard to the poisonous relationship between the two brothers. Defence counsel at trial suggested that Roy's evidence in giving evidence against his brother was to "sink his brother". It was put to the jury that, for a number of reasons, the police were treating Roy as "a protected species". 18It is clear from the jury's verdict that they must have accepted the evidence of Roy beyond reasonable doubt. The trial judge sentenced the appellant on this basis. 19On 18 June 2010, the appellant was sentenced to an overall sentence of fifteen years imprisonment with a non-parole period of eleven years.

The effect of the fresh evidence 36The Court was of the view that the evidence disclosed in Mr Murray's affidavit was "fresh evidence" in the sense that it was evidence not available to the accused at the time of the trial, actually or constructively. Significantly, the fact that there had been discussions between the police and Roy regarding monetary reward was not disclosed to the defence at the trial, and the remarks by the appellant's brother to Mr Carmody on 1 June 2010 occurred well after the verdicts of guilty had been returned. The content of this conversation was not disclosed to the defence until after the sentences had been imposed. 37In these circumstances, the application of the principles applicable to the receipt of fresh evidence on appeal satisfied us that the conviction should be set aside and a new trial ordered. 38Those principles are conveniently set forth in Kirby J's decision in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417, at [63]: "The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v R (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v R (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:

First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v R (above) per Barwick CJ at 512).
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v R (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v R (above) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v R (1986) 160 CLR 392 at 398/399).
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
Is the evidence fresh?
If it is, is it 'credible' or at least capable of belief (Gallagher v R (above) per Gibbs CJ at 395), or 'plausible' (Mickelberg v R (above) per Toohey and Gaudron JJ at 301)?
If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v R (above) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v R (above) per Mason and Deane JJ at 402)? See Mickelberg v R (above) per Toohey & Gaudron JJ at 301-302.
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v R (above) at 517)." 39Here, it may be accepted that the quality of the fresh evidence was not such as to satisfy the Court that a reasonable doubt should be held as to the guilt of the appellant. However, it is clear that the evidence was well capable of belief (even though it may be accepted that Mr Carmody did not keep a verbatim note of what was said) and, in the context of the issues at trial, was likely to have caused the jury to have entertained a reasonable doubt about the appellant's guilt. 40As we have said, the central issue at trial was whether the appellant was one of the two men who actually carried out the wounding and robbery in the Belmont house. Had the jury known that the testimony of the appellant's brother was coloured by a later assertion that he gave the evidence only because he had been offered a reward, there may well have arisen a reasonable doubt as to the truthfulness and reliability of the evidence. We consider that unless a new trial is ordered, there will have been a miscarriage of justice. 41We accept, of course, as the Crown argued, that there may be other ways of looking at the statement said to have been made by Roy to Mr Carmody. If he did use the words attributed to him, he may have been intending to convey that he had decided to attend as a witness at trial because the prospect of receiving a possible reward outweighed his fears and concerns for his own safety as a witness. In other words, the statement may not have been intended to refer to his original decision to provide an induced statement to the police. Secondly, as the Crown suggested, it may be that the second conversation on 13 July 2010, to some degree, took the edge off the bluntness of the first statement. 42These are quintessentially jury questions. We consider that they are appropriate for resolution by a jury rather than by this Court. From our perspective, had the jury been confronted with an assertion that the appellant's brother gave evidence to obtain a reward, there would be a significant possibility that a jury acting reasonably would have acquitted the appellant. 43The Crown took the Court through a brief summary of the detailed circumstantial case against the accused. As we have said, this forcefully suggested that the accused had an involvement in the offences but did not, absent his brother's evidence, place him within the house at the time the robbery and wounding took place. 44Because we have formed the view that the conviction should be set aside and a new trial ordered, we considered it inappropriate to proceed with the Crown appeal against sentence and it was dismissed, as we have said, in Chambers. It is not appropriate for us to express any opinion about the merits of that appeal or otherwise to make any comment upon it.

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