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Munshizada v The Queen

Munshizada v The Queen

Case [2020] NSWCCA 9 10 February 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Munshizada v R [2020] NSWCCA 9
Hearing dates: 4 February 2020
Date of orders: 04 February 2020
Decision date: 10 February 2020
Before: Bell P at [1]; Basten JA at [58]; Payne JA at [83]
Decision:
The application for leave to appeal is dismissed.

Catchwords:
CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – whether decision was a judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) – where applicant unrepresented due to his withdrawal of instructions from Legal Aid funded senior counsel and solicitors shortly before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services – whether refusing to vacate trial in the circumstances was “relevantly unfair” to the applicant – consideration of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5F(3)

Cases Cited:
Alexandroaia v R (1995) 81 A Crim R 286
Bozatsis & Spanakakis v R (1997) 97 A Crim R 296
BWM v R (1997) 91 A Crim R 260
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Greer v R (1992) 62 A Crim R 442
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
Lethlean v R (1995) 83 A Crim R 197
McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65
R v BK [2000] NSWCCA 4; 110 A Crim R 298
R v Powch (1988) 14 NSWLR 136

Category: Principal judgment
Parties: Siar Munshizada (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Lange (Applicant)
B Hatfield, A Morris (Respondent)
Solicitors:
One Group Legal (Applicant)
The Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/00358164
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 30

Date of Decision:

03 February 2020

Before:

Fagan J

File Number(s):

2016/00358164

Judgment

Introduction

BELL P: On the afternoon of 4 February 2020, the Court heard an urgent application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) from an interlocutory order made by Fagan J on Friday 31 January 2020, dismissing an application to vacate a murder trial due to commence on Monday 3 February 2020. The applicant for leave to appeal, Mr Munshizada, is the accused.
Consistent with his Honour’s orders, that trial in fact commenced on 3 February 2020 but the jury was not empanelled on that day. Shortly after midday on 3 February 2020, Fagan J, who was also the assigned trial judge, was informed that an application for leave to appeal his orders in relation to the vacation of the trial was to be filed. Shortly thereafter,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Munshizada v The Queen

Details

AGLC: WM v R [2020] NSWCCA 9
Case: [2020] NSWCCA 9
Decision Date: 10 February 2020

CaseChat Overview and Summary

The applicant, Munshizada, applied for leave to appeal from a decision of the Supreme Court of New South Wales, refusing to vacate his trial. The matter was heard in the Court of Criminal Appeal. The central issue was whether the refusal to vacate the trial constituted a judgment or order under section 5F of the Criminal Appeal Act 1912 (NSW). The applicant had withdrawn instructions from his Legal Aid-funded counsel and solicitors just before the trial, and sought to vacate the trial based on this change in representation. The court needed to determine whether this refusal was "relevantly unfair" to the applicant, especially considering the principles established in Dietrich v The Queen.

The court examined the applicability of section 5F and the notion of "relevantly unfair." The applicant was unrepresented, having withdrawn his instructions from his legal team shortly before the trial. The court noted that neither the applicant nor his former legal team had suggested that the conduct of the legal team was incompetent or otherwise warranted termination of services. The court found that the refusal to vacate the trial did not result in "relevantly unfair" consequences for the applicant, as the application did not meet the threshold for unfairness under the principles set out in Dietrich v The Queen.

In light of the above, the court held that the refusal to vacate the trial was not a judgment or order within the meaning of section 5F. Consequently, the application for leave to appeal was dismissed. The court did not grant leave to appeal and upheld the earlier decision of the Supreme Court, which had refused to vacate the trial.

Orders