R v Da Silva

1. [1]

   HIS HONOUR: Ricardo Da Silva is charged with the murder of his former partner Amanda Carter. Ms Carter was discovered in her bed on the morning of 16 May 2010 with fatal head and facial injuries caused by a series of blunt force blows with an unspecified object. It appears that she was killed where she lay.

2. [2]

   Mr Da Silva and Ms Carter had been in a relationship since late in 2006, although there had been some periods of separation. They met through an online dating website. Their relationship was terminated for the last time on 14 February 2010. It is the Crown case that between then and the date of Ms Carter’s death, Mr Da Silva became increasingly agitated about the end of the relationship and that he killed Ms Carter in circumstances that were generated or influenced by his reaction to what had occurred.

3. [3]

   In accordance with s 97(1) of the Evidence Act 1995, the Crown served a notice that it intended to adduce evidence of the character, reputation or conduct of Mr Da Silva, or of a tendency that he has or had, in order to prove his tendency to act in a particular way or to have a particular state of mind. The tendency sought to be proved was particularised as follows:

4. [4]

   The substance of the tendency evidence which the Crown intended to adduce was contained in a series of statements attached to the notice. It was in summary evidence from Mr Da Silva’s former domestic partners who complained that they had been violently treated or emotionally manipulated by him during the course of their relationships, or from direct witnesses to that conduct exhibited by Mr Da Silva to these women in those circumstances. A brief summary of that evidence follows.

5. [5]

   Mr Da Silva was in a domestic relationship with Ms Martin for about 12 years. She met him in 1973 when she was 20 years old and they married in November 1974. The relationship lasted for 12 years. They had two children together. Ms Martin described the violence towards her as “pretty horrendous”. She left Mr Da Silva a number of times because of it. She said that Mr Da Silva struck her in the face shortly after she had had a baby. On another occasion he choked her in a van that they used to conduct their milk run. He also kicked her in the legs and kicked her cat to death. Ms Martin said that one minute Mr Da Silva would be fine but would suddenly change and get really angry over the slightest thing, screaming and throwing things around.

6. [6]

   Ms Martin finally left Mr Da Silva. He was by that time having an affair with a woman called Beverley Davies, who Ms Martin understood was one of their milk run customers.

7. [7]

   The following selected passages are extracted from Ms Martin’s statement attached to the tendency notice:

8. [8]

   Ms Galuzzo is a long-time friend of Ms Martin. She observed Mr Da Silva’s treatment of Ms Martin during a period when Ms Galuzzo lived with them. Ms Martin confided in her about Mr Da Silva’s violent and abusive treatment. She observed bruises on her arms and legs. She observed that on one occasion Ms Martin had a black eye. Ms Galuzzo assisted Ms Martin to leave Mr Da Silva.

9. [9]

   Ms Davies is the daughter of Beverley Davies, who died in November 2009. She recalled that her mother met Mr Da Silva approximately towards the end of 1986. She observed Mr Da Silva shoving her mother around, leaving bruising. He was very possessive. On one occasion one of Beverley Davies’ former partners came to the house. Mr Da Silva became agitated and punched the door frame. She also had a cockatoo. Mr Da Silva said, “You love that cockatoo more than me.” The bird went missing after that.

10. [10]

    Mr Da Silva threw Beverley Davies against a refrigerator, punched her knocking out three of her front teeth and kept kicking her while she lay on the floor. She became pregnant and had an abortion. Mr Da Silva became angry saying, “You’ve murdered my child.” He kicked her in the stomach.

11. [11]

    The following selected passages are extracted from Ms Davies’ statement:

12. [12]

    Ms Noack met Mr Da Silva on the RSVP website in about 2002. She purchased a house with him. He did not contribute to the repayment of the housing loan. She transferred her motor vehicle into Mr Da Silva’s name. The house was repossessed in 2005 and she became bankrupt.

13. [13]

    Mr Da Silva was very controlling. He would hide her purse and keys if he did not want her to go out. On one occasion he pushed her to the floor and broke her shoulder. They were arguing because she wanted to open a window or a curtain. He pushed her head against a table and threw a stool at her. Ms Noack described herself as “just a slave” who did what he said. Ms Noack wrote a letter to Mr Da Silva’s workplace saying that if she was found dead, inquiries should be directed to him. After the relationship ended Ms Noack became depressed and alcoholic. She attempted suicide several times.

14. [14]

    The following selected passages are extracted from Ms Noack’s statement:

15. [15]

    The Crown gave notice of other evidence that it proposed to adduce in support of the alleged tendency. It is not presently necessary to refer to that material.

Consideration

1. [16]

   Section 97 of the Act provides as follows:

2. [17]

   Ms Moen of counsel for Mr Da Silva conceded, uncontroversially in my view, that the evidence proposed to be adduced was probative of Mr Da Silva’s tendency to be violent. She maintained, however, that in the particular circumstances of this case the evidence did not have significant probative value and that in addition its probative value was substantially outweighed by the prejudicial effect it may have upon Mr Da Silva. That latter contention was a reference to the terms of s 101 of the Act that provides relevantly as follows:

3. [18]

   The inquiry is directed to whether the evidence sought to be adduced has the capacity rationally to affect the assessment of the probability of the existence of a fact in issue and to a significant degree. The assessment of probative value is in every case a matter of fact and degree and is influenced by the nature of the fact in issue sought to be proved or disproved. The focus is upon the fact in issue to which the evidence is said logically to relate. In assessing the probative value of the evidence, factors to be taken into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act or think in a particular way, and the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur.

4. [19]

   The learned author of Uniform Evidence Law (11th Ed) at 477-479 has identified a series of factors referred to in the authorities that may assist in the assessment of the strength of the tendency inference:

5. [20]

   In Aravena v R [2015] NSWCCA 288 at [85]- [89], the Court said this:

6. [21]

   In the present case the conduct is neither restricted to a single incident nor is it isolated in time. The tendency contended for consists in both physical and emotional conduct or behaviour in the context or setting of domestic relationships. It is important to recall that s 97(1)(b) draws attention to consideration of “other evidence adduced or to be adduced.” In the present case, I am led to believe that the evidence will include examples of Mr Da Silva entering the home of Ms Carter unannounced and uninvited following the breakdown of their relationship, falsely alleging to her employer that she was in a sexual relationship with a student at the school where she taught, writing letters to local newspapers making similar allegations, stalking Ms Carter in the days shortly before her death by attending football games that she was refereeing, all in the context of a refusal to accept that the relationship with Ms Carter had come to an end.

7. [22]

   The evidence that the Crown proposes to rely upon as evidence of a tendency to be or to become violent, possessive and obsessive with domestic partners, arises in exclusively domestic circumstances. That evidence is restricted to conduct that has occurred in the context of several domestic relationships with Mr Da Silva’s former partners, in circumstances where he has been apparently frustrated or annoyed with them and has resorted to violent or controlling behaviour.

8. [23]

   Part of the anticipated evidence in the Crown case is that following their final separation, Mr Da Silva moved from what Ms Carter reportedly described as “not accepting” to “angry”. The tendency evidence that the Crown seeks to adduce includes several detailed and graphic examples of Mr Da Silva becoming angry with his former domestic partners and consequently or at least subsequently resorting to physical violence and abuse.

9. [24]

   Mr Da Silva has not proceeded as far as causing the death of a former domestic partner. The Crown concedes this relevant and significant fact. By the same token, the Crown maintains that Mr Da Silva’s demonstrated tendency to resort to violence falling short of causing death is a matter of degree only, and does not derogate from the relevance of the evidence sought to be adduced. To that extent, the degree of similarity between the conduct sought to be relied upon as demonstrating a tendency to act in a particular way or to have a particular state of mind is to be found in the manner in which Mr Da Silva reacts towards his domestic partners with violent and controlling behaviour, not because he has ever resorted to violence causing death. Put another way, the general tendency contended for is the perpetration of any violence or the evincing of any controlling behaviour towards female domestic partners, regardless of its particular extent or degree. I bear in mind that, unlike coincidence evidence under s 98, s 97 is not “based upon similarities”. It is not essential that the evidence reveal striking similarities or unusual features. It is also important to observe that even if the conduct on the various occasions is not identical or even particularly similar, the similarity of the surrounding circumstances may lead to the conclusion that the evidence has significant probative value.

10. [25]

    I have earlier recorded that counsel for Mr Da Silva accepts that the evidence has probative value but contests the proposition that it is significant. In my opinion that contention erroneously discounts both the importance or magnitude of any violence by a man against a woman in the first place and the reoccurring setting of its occurrence, in this case against a current domestic partner, in the second place.

11. [26]

    In my opinion the evidence has significant probative value. I accept that it has not yet been tested in any pre-trial assessment and that Mr Da Silva will, or is likely to, contest the evidence to some extent or another. I am aware as well that at least Ms Noack’s credibility will be put in issue in particular and specific respects going beyond mere frailty of recollection. The evidence in combination, however, is arguably compelling, even allowing for the prospect that the jury may be disinclined to accept all of it to the requisite standard. In so saying, I note that it is not my role to “second guess” the jury but to make my own independent assessment of probative value for the purposes of s 97.

12. [27]

    This inquiry is directed to consideration of the actual prejudice in the present case that the probative value of the evidence must substantially outweigh.

13. [28]

    This is not a case where the evidence of tendency that the Crown proposes to adduce is evidence from a party directly concerned with the outcome of the proceedings, such as evidence from a complainant in a sexual assault trial. The prospect of unreliability or concoction or contamination does not therefore afflict the evidence proposed to be adduced, even if the witnesses who are called to give the evidence will be subjected to cross-examination, so that the prospect that the full force of the anticipated evidence may be diluted. The authorities indicate that the probative value of evidence will vary depending upon whether it is in dispute. That concern would not in my view be likely to translate to a conclusion in the particular circumstances of this case that any prejudice to Mr Da Silva arising from contested but acceptable evidence from his former partners would not be substantially outweighed by the probative value of that evidence. Put another way, even though the ultimate way in which the jury may treat this evidence cannot, and will never, be known, the evidence in question is not on its face of such a kind, nor does it emanate from such a source, that it is of its very nature likely to create a prejudice to Mr Da Silva that transcends the simple proposition that he would prefer that his conduct with former domestic partners simply not be revealed.

14. [29]

    Prejudice is literally prejudgment, or the formation of an opinion without the benefit of all relevant facts. The prejudicial effect in question here is that which might potentially arise from a jury’s reception of evidence that may be incomplete or which fails fairly to provide a balanced or accurate picture. In my opinion, no such prejudice is imminent here. That is for the reason that there can be no reasonable or acceptable explanation or excuse for domestic violence. The prejudice that arises from the evidence in question is a function of the content of the evidence, not its likely unreliability, inaccuracy or insufficiency. I accept immediately that the section refers to “prejudicial effect” and does not concern “unfair” prejudice or an “unfairly prejudicial effect”. However, it is highly unlikely that evidence of tendency of the type contemplated by s 97 would ever be favourable to an accused person, so that the putative prejudice arising merely from the fact of the giving of the evidence must necessarily be discounted if not entirely disregarded in this setting.

15. [30]

    The balancing exercise called forth by this section must be conducted having regard to the facts of each case. I have indicated that in my view the probative value of the proposed evidence is, or is likely to be, high. In contrast, I am satisfied that the prejudicial effect of the evidence is, or is likely to be, relevantly low or non-existent. It follows that I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on Mr Da Silva.

Conclusions

1. [31]

   In the circumstances I allow the Crown to adduce the evidence, the substance of which is identified in its tendency notice dated 2 July 2015.