R v Danishyar - [2023] NSWSC 922

Supreme Court

New South Wales

Medium Neutral Citation: R v Danishyar [2023] NSWSC 922
Hearing dates: 28 July 2023
Date of orders: 8 August 2023
Decision date: 08 August 2023
Jurisdiction: Common Law
Before: N Adams J
Decision:
The application by the Crown for material to be released under s 45(5) of the Crime Commission Act2012 (NSW) is refused.

Catchwords:
CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – application to release evidence given before Crime Commission – s 45(4) and (5) Crime Commission Act 2012 (NSW) –whether disclosure in the interests of justice – factors weighing for and against disclosure – public interest immunity

Legislation Cited:
Crime Commission Act 2012 (NSW), ss 21, 24, 25, 27, 39, 45
Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases Cited:
R v Hawat(No 1) [2019] NSWSC 1583
R v McCloskey (No 1) [2020] NSWSC 771
R v Munshizada, Danishyar and Baines [2020] NSWSC 566
R v Quami (No 11) [2016] NSWSC 252
R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654

Category: Procedural rulings
Parties: Rex (Crown)
Mirwais Danishyar (Accused)
New South Wales Crime Commission (Applicant)
Representation:
Counsel:
Mr D Patch (Crown)
Ms N Carroll (Accused)
Ms A Douglas-Baker (Applicant)
Solicitors:
Solicitor for Director Public Prosecutions (Crown)
Fahmy Lawyers (Accused)
Crown Solicitor’s Office (Applicant)

File Number(s): 2020/350096
Publication restriction: Nil.

Judgment

Background

On 10 January 2020, Mirwais Danishyar was charged with the murder of Michael Davey on 30 March 2016 at Kingswood.
The Crown case is that the deceased was shot by Abuzar Sultani and Siar Munshizada. It was a “contract kill”. The accused is charged on the basis that he was part of a joint criminal enterprise to shoot the deceased. It is not the Crown case that he was one of the shooters.
On 9 December 2021, the accused was committed for trial to the Supreme Court. At his arraignment on 11 February 2022, the accused entered a plea of not guilty to the charge of murder. The matter was stood over to 4 March 2022 with a notation that the trial be listed following the listing of a related District Court trial. On 1 April 2022, this matter was listed for trial on 28 August 2023. As I understand it, the related District Court trials have now all concluded.
By notice dated 20 January 2021, the New South Wales Crime Commission (“NSWCC”) informed the Office of the Director of Public Prosecutions (“ODPP”) that it had in its possession certain evidence in relation to the murder of Michael Davey. That document apparently provided a brief summary of the material that the NSWCC may possess. It indicated that examinations were conducted by the NSWCC into Mr Davey’s murder on 5, 8 and 15 June 2017, 16 November 2017 and 6 June 2019. The court was not provided with this document for the purpose of the present application.
On 17 January 2023, the Director of Public…

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 R v Danishyar

Details

AGLC: R v Danishyar [2023] NSWSC 922
Case: [2023] NSWSC 922
Decision Date: 08 August 2023

CaseChat Overview and Summary

The case of R v Danishyar was heard in the Supreme Court of New South Wales. The defendant, Danishyar, was on trial for his involvement in a joint criminal enterprise that led to a murder. Danishyar was charged as an accessory before the fact. The crux of the case was whether certain evidence obtained before the New South Wales Crime Commission should be disclosed to the defence. The applicant sought the release of evidence under sections 45(4) and 45(5) of the Crime Commission Act 2012 (NSW), contending that the disclosure was in the interests of justice.

The legal issues before the court revolved around the balance of interests in releasing evidence gathered by the Crime Commission. The central question was whether the disclosure of the evidence would promote the interests of justice, taking into account the public interest immunity that typically surrounds such information. The court needed to weigh the potential benefits of disclosure against the public interest in maintaining the confidentiality of the evidence obtained through the Commission. This required a nuanced assessment of the potential impact on the fairness of the trial and the overarching public interest.

The court meticulously evaluated the specific circumstances of the case, considering factors such as the relevance of the evidence to the defence, the potential prejudice to the prosecution, and the broader implications for the administration of justice. Ultimately, the court found that the interests of justice were best served by not disclosing the evidence, as the potential for prejudice outweighed the benefits of disclosure. The court recognised the importance of the public interest immunity in protecting the integrity of the Crime Commission's processes and the confidentiality of its proceedings. Consequently, the application for the release of the evidence was dismissed.

The final orders of the court were that the evidence obtained before the Crime Commission would not be disclosed to the defence. This decision underscored the court's commitment to ensuring a fair trial while also safeguarding the public interest in the proper functioning of investigative bodies.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Publication or disclosure of evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Danishyar [2023] NSWSC 922
Hearing dates:	28 July 2023
Date of orders:	8 August 2023
Decision date:	08 August 2023
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	The application by the Crown for material to be released under s 45(5) of the Crime Commission Act2012 (NSW) is refused.
Catchwords:	CRIME – evidence – murder – joint criminal enterprise – accessory before the fact – application to release evidence given before Crime Commission – s 45(4) and (5) Crime Commission Act 2012 (NSW) –whether disclosure in the interests of justice – factors weighing for and against disclosure – public interest immunity
Legislation Cited:	Crime Commission Act 2012 (NSW), ss 21, 24, 25, 27, 39, 45 Director of Public Prosecutions Act 1986 (NSW), s 15A
Cases Cited:	R v Hawat(No 1) [2019] NSWSC 1583 R v McCloskey (No 1) [2020] NSWSC 771 R v Munshizada, Danishyar and Baines [2020] NSWSC 566 R v Quami (No 11) [2016] NSWSC 252 R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654
Category:	Procedural rulings
Parties:	Rex (Crown) Mirwais Danishyar (Accused) New South Wales Crime Commission (Applicant)
Representation:	Counsel: Mr D Patch (Crown) Ms N Carroll (Accused) Ms A Douglas-Baker (Applicant) Solicitors: Solicitor for Director Public Prosecutions (Crown) Fahmy Lawyers (Accused) Crown Solicitor’s Office (Applicant)
File Number(s):	2020/350096
Publication restriction:	Nil.