Da Silva v R [2016] NSWCCA 40

Da Silva v R [2016] NSWCCA 40

Leave to appeal was refused because none of the proposed grounds disclosed a plausible error by the primary judge: providing relevant authorities to counsel before the hearing did not support actual or apprehended pre-judgment; the applicant did not identify substantial reasons for recalling witnesses or any prejudice sufficient to justify a return for committal after waiver and filing of an indictment; and the primary judge applied the correct principles in finding that a fair trial could be held in Newcastle using proper jury selection procedures despite earlier publicity.

Jurisdiction
Australia
Judgment Date
11 March 2016
Procedural Posture
Application for Leave to Appeal From an Interlocutory Order in Criminal Proceedings on Indictment / Application for Extension of Time and Leave to Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw)
Outcome
Time extended; leave to appeal refused.
Legal Topics
['apprehended Bias' 'interlocutory Appeal' 'committal Hearing' 'waiver of Committal' 'change of Venue' 'pre Trial Publicity' 'jury Impartiality']
['criminal Law' 'criminal Procedure' 'appeals'] ['apprehended Bias' 'interlocutory Appeal' 'committal Hearing' 'waiver of Committal' 'change of Venue' 'pre Trial Publicity' 'jury Impartiality']

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Procedural Posture

Application for Leave to Appeal From an Interlocutory Order in Criminal Proceedings on Indictment / Application for Extension of Time and Leave to Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw)

Legal Issues

  1. 1 ['Whether time should be extended for lodging the application for leave to appeal.' "Whether the primary judge's provision of authorities to the parties before the hearing gave rise to actual or apprehended pre-judgment." 'Whether the matter should be stayed and returned to the Local Court for a committal hearing after committal was waived and a bill of indictment was filed.' 'Whether the trial venue should be changed from Newcastle to Sydney because of pre-trial publicity and the risk of jury bias.' 'Whether the trial venue should be changed because of alleged difficulties in preparing the defence.']

Ratio Decidendi

Leave to appeal was refused because none of the proposed grounds disclosed a plausible error by the primary judge: providing relevant authorities to counsel before the hearing did not support actual or apprehended pre-judgment; the applicant did not identify substantial reasons for recalling witnesses or any prejudice sufficient to justify a return for committal after waiver and filing of an indictment; and the primary judge applied the correct principles in finding that a fair trial could be held in Newcastle using proper jury selection procedures despite earlier publicity.

Court Disposition

Time extended; leave to appeal refused.

Orders

  • ['Extend the time for lodging an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act from the judgment of Johnson J delivered on 14 December 2015.' 'Refuse leave to appeal.']