R v Munshizada

[2021] NSWDC 598

District Court

New South Wales

Medium Neutral Citation:	R v Munshizada [2021] NSWDC 598
Hearing dates:	2 November 2021
Date of orders:	03 November 2021
Decision date:	03 November 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 31
Catchwords:	CRIMINAL LAW – application to discharge jury – offence of affray – whether Crown Prosecutor cross-examination of accused went beyond Crown case statement – whether question occasioned unfairness curable only by discharge of jury
Legislation Cited:	Crimes Act 1900 (NSW) s 93C
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Director of Public Prosecutions (NSW) Siar Munshizada (accused)
Representation:	Counsel: Mr P Lowe for the Director of Public Prosecutions (NSW) Mr I Wallach for the accused Solicitors: Solicitor for Public Prosecutions (NSW) Jamieson Criminal Law for the accused
File Number(s):	2020/00075031
Publication restriction:	Nil

Judgment

1. Counsel for the accused applies for a discharge of the jury. The application is made in the following context.

2. The accused is being tried on a count of using unlawful violence towards Stephen Stanley by conduct that would cause a person of reasonable firmness present at the scene to fear for his safety, contrary to s 93C(1) of the Crimes Act 1900 (NSW). The event giving rise to the charge occurred in Parklea Correctional Centre. Both the accused and Mr Stanley are inmates of that centre.

3. In the Crown Case summary (MFI 6) that was referred to by Counsel on the application, reference was made to the following parts:

1. On page 1 (of 28 pages) a number of criminal proceedings were listed. The accused persons were, respectively, the accused in this trial, Cameron Scollie, Mohammed Shamim and Stephen Stanley;

2. On page 1 of 28, under the heading ‘Statement of liability’, it was stated:

“The Crown contends that each accused person is criminally responsible in respect of the alleged offence of affray as a principle (sic) in the first degree who was actively involved in a physical altercation at Parklea Correctional Centre, area 5 gate area on 1 September 2019. The Crown contends that each of the accused used unlawful violence towards each other, and others, at Parklea Correctional Centre on 1 September 2019. The Crown further contends that the conduct of each accused was such that it would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.”

3. At paragraph 56 (p 27), the following appears:

“It is the Crown case that the actions of (the accused), Scollie, Stanley and Shamim prior to the commencement of the physical altercation reveal an element of pre-planning. It is not known what the conflict was, however, it is the Crown Case that there was a plan in place to hang at the back of the group and commence a physical altercation in the 5-gate area.”

4. During the Crown prosecutor’s Opening Address, the prosecutor played before the Jury the CCTV footage. In the course of this, the prosecutor specifically invited the Jury to observe from the CCTV footage the actions of the accused and Mr Stanley, but also the other actions of Cameron Scollie and Mohammed Shamim and what occurred to Mr Bernie. This was the prelude to an initial submission about an element of the offence for which the accused was charged (T19-21). About that offence, the Crown prosecutor then said the following:

“The law is that where two or more persons use unlawful violence, it’s the conduct taken of all of them together to be considered. That’s why I’ve drawn your attention not just to one fight happening, but other fights happening, so it’s everyone participating in the affray that determines the affray. So it’s not just Cameron Scollie joining with (the accused) against Mr Stanley. It’s also Mohammed Shamim and Jack Bernie. So all of that conduct taken together.” (T 21.36 – 21.42).

5. No objection was taken by the accused’s Counsel to anything said by the Crown prosecutor in his Opening.

6. It emerged from Counsel for the Accused’s Opening, in effect, that the principal issue for the jury’s determination is whether the accused acted in self-defence (T 22). A cardinal part of that defence, which the Crown is ultimately required to negative, is that the accused acted as he did because he believed that it was necessary to defend himself and, if that is accepted, his conduct also represented a reasonable response to the circumstances as he perceived them to be. Both elements of the defence squarely raise the accused’s state of mind.

7. The Crown case relied upon CCTV footage and photographs (contained within Exhibit B), and some testimonial evidence of Corrections officers. In the CCTV footage and through the evidence of several of the Corrections officers (including but not limited to Corrections officers Appiah, Brown and Thomson), emphasis was given not only to the fight between the accused and Mr Stanley, but another fight involving an attack on a different inmate, Mr Bernie, in which that inmate was seen slumping on the ground.

8. The CCTV footage (Exhibit A), which comprised the footage of 3 cameras, was positioned from different parts of the area. The Crown’s witnesses, to different degrees, gave evidence about their recollections of what they observed in the conduct of the accused, Mr Stanley and some other inmates, being Cameron Scollie, Mohammed Shamim and Mr Bernie. Even more explicitly, photographs of the CCTV still image references specifically highlighted (in different colouring and sometimes with circles placed around the individuals) these individuals.

9. After the Crown case closed, and once it became clear that the accused elected to give evidence, instantaneously the Crown prosecutor verbally indicated to the Court that it was his intention to be putting to the accused that his fight with Mr Stanley was pre-arranged. Counsel for the accused objected to that proposed course, but as the exchange indicates in the transcript (T 88) that had more to do with the extent of the evidence to support the proposition rather than any suggestion that it would be unfair for the Crown to put the suggestion of pre-planning.

10. The accused was called and gave a narrative account in his evidence in chief of what occurred. In the course of which, he was led, by his Counsel, through part of the CCTV footage. He was not asked by his Counsel and he did not give evidence of the content of what communications he had with other inmates, Scollie, Shamim or Stanley.

11. At the outset of the Crown prosecutor’s cross-examination, the Crown started by saying that the Crown would be putting to the accused that his fight with Mr Stanley was ‘arranged’. The accused denied the proposition. Counsel for the accused did not, and does not now take issue with the fairness of this particular proposition. The prosecutor then specifically identified that he was going to put to the accused that had an arrangement with Cameron Scollie. Objection was taken as to form, but not the fairness of it. In the event, the question was not answered.

12. The Crown prosecutor then said the following (T 97.39 – 97.44):

“I’m also going to be putting to you, and it will be I'll play the video for you and I'm going to be putting specific what you can see in the video you had an arrangement with Mr Shamim to attack Jack Bernie whilst you were having a fight with Stanley. Do you understand that?” (emphasis supplied)

13. The accused’s response was “I understand that yeah”.

14. One might think, when considering the earlier exchanges between the Crown prosecutor and the accused that what the prosecutor was doing here was essentially telegraphing to the accused the ultimate propositions which the Prosecutor was going to put to him, as a result of the course of cross-examination as the prosecutor anticipated the cross-examination would proceed, hence the repeated use of the expression ‘I’m going to be putting”. Further, it appears the accused well understood what the prosecutor was doing, which was why his answer to it indicated his understanding that the proposition that was going to be put to him and did not respond to the underlying correctness (or otherwise) of the proposition itself.

15. Henceforth, and for the purposes of considering this application, I will refer to this as the “Impugned Foreshadowed Proposition”. The cross-examination continued, until the luncheon adjournment (on day 2 of the trial) with the Crown prosecutor leading the Accused through the CCTV footage. In the course of this part of the cross-examination, the prosecutor specifically put to the accused that he had arrangements: (a) with Scollie to walk with him around the “legal boxes” (ie places where visits from lawyers to inmates occurred); and (b) to meet the inmate Shamim in the middle of the yard. There was no objection taken by Counsel for the accused to either of these propositions being raised.

16. After the luncheon adjournment, Counsel for the accused made his application. He submitted that it was improper for the Crown prosecutor to put to the accused the Impugned Foreshadowed Proposition.

Submissions

17. Counsel for the accused submitted that the Impugned Foreshadowed Proposition was put without prior notice to the Defence. It was not featured in the Indictment. It was not referred to in the Crown prosecutor’s Opening. Further, the Impugned Foreshadowed Proposition was inconsistent with paragraph 56 in the Crown case statement, which, although it mentioned pre-planning, stipulated that the Crown did not know what the conflict was. That should be construed as a statement that the Crown was not in a position to explain the content of any arrangement between the accused and the other inmates, including Mr Shamim.

18. The Crown opposed the application. Although the Crown accepted that the Impugned Foreshadowed Proposition was not referred to in the Indictment, the Crown argued that in view of what was said in the Crown Statement, there was no need to do so. The Crown drew attention to the terms of the offence, being s 93C(2), which provides that “If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1)”. The Crown also noted that part of the defence of self-defence involves inquiry into whether the accused’s conduct represented a response to a perceived threat which was reasonable having regard to the circumstances as he perceived them to be. Although the Crown relied upon inferences to be drawn from what was observed on the CCTV footage (and in the photographs), indicating the interactions between the inmates that I have identified earlier in these reasons, the Crown submitted that until the accused elected to give evidence, the Crown could not explore issues associated with the accused’s state of mind.

19. In an earlier part of the argument on the application, on the premise (which he was not taken to accept) the Court found that there was unfairness in putting the proposition, I raised with the prosecutor whether he would be prepared to withdraw the Impugned Foreshadowed Proposition. I understood him to accept that he would do so.

20. In reply, Counsel for the accused maintained that it was necessary for the Impugned Foreshadowed Proposition to be contained in the Indictment; that the terms of s 93C(2) of the Crimes Act did not relieve the Crown of that necessity and reiterated that the Impugned Foreshadowed Proposition was inconsistent with the Crown case. In relation to the matter I had raised with the Crown, a withdrawal of the proposition by the Crown would not suffice to eradicate the unfairness. The suggestion had been planted in the jury’s mind.

Consideration

21. I do not accept that it was necessary for the Crown, in the Indictment to aver why the accused engaged in unlawful violence, even if that question may be relevant to negativing the defence of self-defence which the accused puts in issue. But that is the effect of Counsel for the accused’s submission.

22. I accept that the suggestion that the accused conducted himself in the manner that he did as a part of pre-planning of the attack, is tolerably made plain in the Crown case statement; even if, in his Opening address, the Crown did not expressly refer to pre-planning.

23. But in his Opening, the Crown prosecutor, at some length, referred to the conduct of a range of inmates and indicated to the Jury that the conduct of other inmates could be taken into account when assessing the accused’s conduct. That course is permitted by s 93C(2). It was not inconsistent with s 93C and was consistent with the parts of the Crown case statement referred to, that the Crown might wish to put to the accused that he did not fear for his safety at all but instead that the incident with Mr Stanley was ‘pre-planned’.

24. After Counsel for the accused signalled the accused’s election to give evidence, the Crown immediately foreshadowed an intention to raise the matter of pre-planning. Counsel for the accused objected to that course, but not because of fairness, and the objection was overruled. The prosecutor did not, however, foreshadow to the Court, and before the accused stepped into the witness box, that he would put the Impugned Foreshadowed Proposition.

25. In my view, the making of the Impugned Foreshadowed Proposition went beyond the Crown case statement and the prosecutor’s Opening. The Statement of Liability in the Crown case statement did not allude to it and paragraph 46 in the Crown case statement essentially indicates although pre-planning occurred as between the accused, and the other inmates Scollie, Stanley and Shamim, the Crown was not in a position to know what the motivation for or end result of that planning was. The Impugned Foreshadowed Proposition is, in substance, an indication to the accused that the Crown proposed to put to him that the end result of the accused’s pre-planning with Shamim was the latter’s attack on the inmate Bernie.

26. The terms of s 93C(2) do not justify making the Impugned Foreshadowed Proposition. It speaks only in terms of the use or threat of conduct of multiple participants; not the motivations for or the end result intended by the engagement in that conduct. Further, on its face, the provision indicates that it is the effect of the use or threat of the conduct of multiple participants upon the hypothetical person of reasonable firmness that is in issue.

27. It is true that inferences of pre-planning might be drawn by the jury from mere observation alone of what the ‘actors’ (including the accused) did, including their interactions with each other, which might facilitate a conclusion that the fight involving the accused and Stanley was not a spontaneous or unexpected outbreak. It is not necessary now to opine on the strength of such inference. However, it was another thing for the Crown to indicate that it was going to suggest to the accused the Impugned Foreshadowed Proposition which indicated, expressly or implicitly, that the end result of the pre-planning, in which the accused was involved with other inmates, was to facilitate an attack made on Mr Bernie by Mr Shamim. Not only was there no evidentiary basis for that in the Crown case, but it exceeded what the Crown conveyed in its case statement

28. I accept therefore, the accused’s Counsel’s submission that the Impugned Foreshadowed Proposition was speculative, went beyond what was foreshadowed in its case statement and should not have been made.

29. I am doubtful, however, whether any unfairness has been occasioned. The Jury is well aware that the case turns on self-defence, and that the Crown case is that the accused did not use violence because he believed it was necessary to protect himself. As a result of interactions between the accused, Scollie, Shamim and Stanley himself, visually apparent in the CCTV and still photographs, the Crown’s position was that the fight followed pre-planning and, it further followed, was ‘staged’. The form of the question was innocuous, and in this respect, that has some significance. The prosecutor was, as I have said, telegraphing where he expected to go as a result of the questioning that was to follow and, fortuitously for the Crown, the accused said he understood what the prosecutor was proposing to ultimately put to him.

30. Contrary to the accused’s Counsel application, however, even if any unfairness was occasioned to the accused, I do not accept that any unfairness perpetrated was incurable such that the only remedy is a discharge.

31. I consider that any unfairness, about which I am doubtful, can be cured by my directing the Jury, as I would later do in the summing up in any event, that Counsel’s telegraphing of what he was proposing to ask of or put to a witness is not evidence (but that answers are evidence), reminding the Jury that they will only base their deliberations upon the basis of evidence, indicating that the Crown will not pursue that proposed question and directing the Jury to disregard the exchange.

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Decision last updated: 04 November 2021