Da Silva v R [2012] NSWCCA 129

Da Silva v R [2012] NSWCCA 129

The undisclosed evidence about monetary reward discussions with Roy Da Silva and his post-trial statement to the ODPP was fresh evidence not available to the appellant at trial. Because Roy's evidence was the only direct evidence placing the appellant inside the house and the central issue was whether the appellant was one of the two intruders, the fresh evidence was capable of belief and had a significant possibility of causing a reasonable jury to entertain a reasonable doubt or acquit. Unless a new trial were ordered, there would have been a miscarriage of justice.

Jurisdiction
Australia
Judgment Date
09 May 2012
Procedural Posture
Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Court of Criminal Appeal
Outcome
Time to bring the applicant's appeal extended; convictions set aside; new trial ordered on both counts; Crown appeal against sentence dismissed.
Legal Topics
['conviction Appeal' 'fresh Evidence' 'miscarriage of Justice' 'witness Credibility' 'armed Robbery' 'new Trial']
['criminal Law' 'criminal Procedure' 'evidence'] ['conviction Appeal' 'fresh Evidence' 'miscarriage of Justice' 'witness Credibility' 'armed Robbery' 'new Trial']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether fresh evidence concerning discussions about, and statements by a Crown witness regarding, a monetary reward was evidence not available to the appellant at trial.' "Whether the fresh evidence was capable of belief and, in the context of the trial evidence, was likely to have caused the jury to entertain a reasonable doubt about the appellant's guilt." 'Whether the convictions should be set aside and a new trial ordered.' 'Whether the Crown appeal against sentence should proceed after the convictions were set aside.']

Ratio Decidendi

The undisclosed evidence about monetary reward discussions with Roy Da Silva and his post-trial statement to the ODPP was fresh evidence not available to the appellant at trial. Because Roy's evidence was the only direct evidence placing the appellant inside the house and the central issue was whether the appellant was one of the two intruders, the fresh evidence was capable of belief and had a significant possibility of causing a reasonable jury to entertain a reasonable doubt or acquit. Unless a new trial were ordered, there would have been a miscarriage of justice.

Court Disposition

Time to bring the applicant's appeal extended; convictions set aside; new trial ordered on both counts; Crown appeal against sentence dismissed.

Orders

  • ["An order that the time for bringing the applicant's appeal be extended." 'An order that the two convictions against the appellant be set aside.' 'An order that there be a new trial on both counts in the indictment.' 'The Crown appeal against sentence was dismissed in Chambers.']