R v Munshizada, Danishyar and Baines

[2020] NSWSC 566

Supreme Court

New South Wales

Medium Neutral Citation:	R v Munshizada, Danishyar and Baines [2020] NSWSC 566
Hearing dates:	12 & 18 March 2020
Date of orders:	12 March 2014
Decision date:	14 May 2020
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	1. Certificates issued pursuant to s 45(4) of the Crime Commission Act 2012. 2. Paragraph 3 of the Crown’s notice of motion filed 3 March 2020 dismissed.
Catchwords:	CRIMINAL PROCEDURE – application under s 45(4) and (5) of the Crime Commission Act 2012 (NSW) to release evidence given under compulsion before Crime Commission – release not required in the interests of justice
Legislation Cited:	Crime Commission Act 2012 (NSW) Director of Public Prosecutions Act 1986 (NSW)
Cases Cited:	R v Hawat (No 1) [2019] NSWSC 1583 R v Quami (No 11) [2016] NSWSC 252
Category:	Procedural and other rulings
Parties:	Regina Siar Munshizada Mirwais Danishyar Joshua Baines
Representation:	Counsel: L Lungo SC with A Morris (Crown) R Grady (Commissioner of Police) R Lee (NSW Crime Commission) G Thomas (Munshizada) J Clarke; J Trevallion (Danishyar) R Wilson SC (Baines)   Solicitors: Solicitor for Director of Public Prosecutions (Crown) One Group Legal (Munshizada) Toomey Lawyers (Danishyar) Kiki Kyriacou Lawyers (Baines) Crown Solicitors Office (Commissioner of Police; NSW Crime Commission)
File Number(s):	2016/358164 2016/358151 2016/358034
Publication restriction:	No

Judgment

1. These are the Court’s reasons for decision with respect to a notice of motion filed by the Crown on 3 March 2020 seeking relief pursuant to s 45 of the Crime Commission Act 2012 (NSW). The first two paragraphs of the notice of motion sought the issue of certificates under s 45(4) to require that the Crime Commission make available to the Court evidence that was given before the Commission on certain dates in 2017, 2018 and 2019. The evidence was taken as part of the Commission’s investigation of the murders of Mehmet Yilmaz and Pasquale Barbaro. I issued the certificates on 12 March 2020 and transcripts of the evidence were provided to the Court. The third item of relief sought by the Crown was that the Court examine the evidence and determine whether the interests of justice require that any part of it should be made available to the accused and to the prosecutor. I have now reviewed the evidence and have determined that the interests of justice do not so require.

2. Joshua Baines, Mirwais Danishyar and Siar Munshizada have been indicted for the two murders. It is alleged that, together with Abuzar Sultani, they murdered Mehmet Yilmaz on 9 September 2016 and Pasquale Barbaro on 14 November 2016. On 12 July 2019 it was ordered that their trial on these charges should commence on 30 March 2020. I was assigned to preside at the trial. The trial date was vacated by order made on 18 March 2020 because it was not possible to assemble a jury panel under current public-health restrictions. The Crown’s application under s 45 is interlocutory to the trial.

3. Relevant extracts from s 45 are as follows:

45 Publication or disclosure of evidence

(1)   The Commission may direct that:

(a)   any evidence given before it, or

[…]

(c)   any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d)   the fact that any person has given or may be about to give evidence at a hearing,

must not be published, or must not be published except in such manner, and to such persons, as the Commission specifies.

(2)   The Commission must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(3)   A person must not make a publication in contravention of a direction given under this section.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(4)   If:

(a)   a person has been charged with an offence before a court of the State, and

(b)   the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor,

the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court.

(5)   If:

(a   the Commission makes evidence available to a court in accordance with subsection (4), and

(b)   the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.

4. By force of s 15A of the Director of Public Prosecutions Act 1986 (NSW) the Crime Commission is under a duty to disclose to the Director all relevant information acquired in the course of an investigation that might reasonably be expected to assist either the case for the prosecution or the case for the accused. In fulfilment of that obligation, on 16 December 2019 an Assistant Commissioner wrote to the Director advising that the Commission held material obtained during its investigation into the two murders and that this material was subject to non-publication orders made in accordance with s 45(1). The Assistant Commissioner stated that the non-publication orders had been varied to enable him to provide the Director with the names of the persons who had been compulsorily examined before the Commission, the dates upon which the examinations had taken place and a summary of the general nature of the evidence given. This variation of the s 45(1) orders did not permit republication of those particulars beyond the Director’s office. It is apparent that the Commission does not have specific knowledge of the whole of the evidence available to the prosecution in support of the two murder charges or of the issues that will arise in the trial.

5. The Crown’s application under s 45 was prompted by the Assistant Commissioner’s letter of 16 December 2019. The notice of motion was returnable before me on 12 March 2020, being the earliest available hearing date. Mr Lee of counsel was granted leave to appear for the Commission. He tendered a confidential affidavit of Mr TJ O’Connor, to which is annexed a copy of the letter of 16 December 2019. On the basis of that affidavit and its annexure I concluded for the purposes of s 45(4), that “it may be desirable in the interests of justice” that the evidence that had been given before the Commission be provided to the Crown and to the accused. The statutory test in s 45(4) is readily satisfied, as observed by Adams J in R v Hawat (No 1) [2019] NSWSC 1583 at [43]. The brief outline of the evidence held by the Commission, provided in the letter of 16 December 2019, was sufficient to raise the possibility that disclosure to the Crown and to the defence “may be desirable in the interests of justice”. I therefore issued the certificates under s 45(4), as sought by the Crown, on the first return of the notice of motion.

Interpretation of s 45(5)

6. Pursuant to the certificates, the Commission delivered to my chambers transcripts of the examinations together with copies of documents that had been shown to examinees. That material occupied four lever arch folders and comprised approximately 1,200 pages of transcript and 280 pages of exhibits. I reviewed this material from the standpoint of the test in s 45(5) that governs the question of whether I should make it available to the accused and to the prosecutor; that is, the test of whether I am “satisfied that the interests of justice so require”. There is a notable difference between the strictness of that test and the low threshold of the question under s 45(4).

7. Section 45(5) only arises for consideration where a non-publication direction has been made under s 45(1). Commonly such a direction is made on the ground that “the failure to do so [that is, order non-publication] might prejudice the safety or reputation of a person”: s 45(2). The potential for “prejudice [to] the safety … of any person” looms large when the Court is asked by the Crown to override the Commission’s non-publication direction by providing evidence that was given in two murder investigations, under compulsion and on assurances of confidentiality. The Crown asks that the material be given to itself and to the accused who are charged with the murders in question.

8. Transcripts of Commission examinations are produced to the Court often enough for the Court to be well aware that it is usual for the Commission’s non-publication direction to be made at the outset of questioning, in the presence of the examinee, and for him or her to be given comprehensive promises that the fact of attendance and the content of answers will be kept confidential and will not be made known to anyone who may have been involved in the crime under investigation. It may be inferred that such assurances are given to induce openness on the part of the examinee. Overriding these assurances by a Court-ordered dissemination under s 45(5) has the potential to leave the examinees with serious concerns about their personal safety and with a strong sense of having been dealt with by authorities in less than good faith.

9. From these considerations the potential gravity of ordering dissemination under s 45(5) has a bearing on the interpretation of the sub-section in at least two ways. First, it supports giving the word “require” in s 45(5) its ordinary meaning, conveying an imperative sense. I attribute to Parliament the intention that a non-publication order under s 45(1), made on a ground specified in s 45(2) for the protection of an examinee who is questioned compulsorily, should only be overridden by Court-ordered dissemination where that is necessary in the interests of justice. In R v Quami (No 11) [2016] NSWSC 252 at [17]-[18] Hamill J concluded that the word “require” is not used imperatively but that it “does set a relatively high bar for an applicant who seeks release of the material”. I doubt that the difference between his Honour’s interpretation of the sub-section and my own would give rise to any practical difference in its application.

10. In my view, before s 45(5) will be engaged, the Court must be satisfied that dissemination is “required” in the sense that the interests of justice would otherwise be impeded or frustrated. It would not be sufficient that, upon reading the material, the Court should be left with no more than speculation that either the Crown or the defence could find it useful. A determination that the Commission’s evidence should be disseminated to the parties would depend upon the Court finding within it something that would have a material bearing upon the trial – and also that the Court should be satisfied that dissemination would not run counter to collateral aspects of the interests of justice, concerning persons who are not involved in the trial, such as the matters considered in the following paragraphs.

11. Secondly, “the interests of justice” is a broad concept, as has been observed in other contexts such as those referred to by Hamill J in R v Quami (No 11) at [19]-[21]. Having regard to the potential for examinees to be affected by a decision under s 45(5), the interests of justice must be taken here to embrace not only the fairness of the trial but also the need to protect examinees from physical threat and the reasonable expectations of examinees that non-publication directions will be enforced.

12. At [23]-[31] Hamill J listed a series of matters that the interests of justice would commonly encompass in an application under s 45(5). They include whether the examinee has a legitimate expectation that his or her evidence will remain confidential; whether the Crown intends to call the examinee in the trial; the consistency or otherwise of the evidence given under examination with the evidence intended to be led by the Crown from the examinee; whether the Commission evidence contains “important exculpatory information, or gives rise to theories of the case that may not be readily apparent to the defence or prosecution”; whether release of the material may endanger the examinee; whether the evidence given before the Commission appears fanciful or lacking in credit; whether the evidence concerns matters central to or peripheral to the facts to be alleged by the Crown in the trial and whether the examinee consents to release of his or her evidence in the Commission. I respectfully agree that all of those matters are relevant to the interests of justice in this context.

The interests of justice in the present case

13. Sub-section (5) is expressly directed to situations such as the present where a criminal charge has been laid and is yet to be tried. A determination of what “the interests of justice […] require” depends upon the potential relevance of the Commission evidence to the issues in the trial. This must be ascertained by the Court on a prospective basis. The Court is required to anticipate the detail of the case the prosecution will present and the issues to be raised in defence. With respect to the trial to which the present application relates the Court has a detailed Crown Case Statement for each of the two murder counts and has been supplied with many of the Crown witnesses’ statements and copies of a large volume of proposed exhibits. Extensive advance notice of the Crown’s proposed evidence has been given because in March 2019 the Court was required to rule upon applications by the accused that charges on the indictment be severed and that one of the accused be tried separately.

14. As to the issues in the trial, the Court has no knowledge of the points at which the Crown’s evidence will be tested and challenged. The Court cannot foresee what objections to evidence may be taken by defence counsel or whether they will succeed. Nor can it anticipate whether any of the accused will give evidence or call witnesses or, if so, what issues may arise from such evidence.

15. In this state of affairs the Court could only be satisfied that “the interests of justice […] require” that the evidence produced by the Commission under the certificates should be made available to the parties if:

1. it would materially add to the Crown case or

2. it would contradict or raise a reasonable doubt about the Crown case or

3. it would disclose a real possibility that further specific enquiries based upon the Commission’s transcripts may identify additional evidence that would materially add to the Crown case or contradict it or raise a reasonable doubt about it.

16. On my reading of the evidence delivered to the Court under the certificates and applying s 45(5) in accordance with the interpretation explained in the preceding paragraphs, I am not satisfied that the interests of justice require any of it to be provided to either the Crown or the accused. I am not satisfied that any of the evidence would either add to or contradict or cast doubt upon the Crown case in any material respect. Nor does any of the evidence received from the Commission suggest any line of inquiry or any theory of the events that could be in any way useful to either the Crown or the accused. It has not become necessary to evaluate the interests of justice by striking a balance between the utility of any part of the evidence for the purposes of the trial and, on the other hand, the interests of examinees in maintaining non-publication. The Commission’s evidence does not pass the initial assessment of having a material bearing upon the trial. It has therefore not been necessary for me to weigh up collateral aspects of the interests of justice, such as those referred to at [12] above, that might militate against dissemination under s 45(5).

Practical difficulties of applications under s 45(4) and (5)

17. The evident purpose of subs (4) and (5) of s 45 is to require a court in which a criminal trial is to be conducted to mediate between, on the one hand, the confidential and compulsory information-gathering processes of the Commission and, on the other hand, the usual requirement of full disclosure by investigating authorities to an accused. Practical difficulties arise from the legislature having conferred this responsibility on the court of trial.

18. The processes of assessing the desirability of disclosure and of weighing up considerations that favour non-publication depend heavily upon full knowledge of the case to be run by the prosecution. The Office of the Director of Public Prosecutions is able to discharge its general obligation of disclosure because it has intimate and detailed knowledge of the case to be run and, through co-operation with police, it has access to information about the investigation. Sub-sections (4) and (5) of s 45 assume that a trial court is in a similar position to the prosecution for the purpose of judging whether Crime Commission material should be disclosed. That assumption is mistaken. The trial court can only reach a position of being able to make such a judgment, and even then an imperfect one, by undertaking a detailed advance examination of the prosecution’s intended case.

19. The pre-trial analysis of the Crown case that is made necessary by an application under s 45(5) will in all cases be a substantial exercise but particularly so in prosecutions of any complexity. It is not the invariable practice of trial judges to read the prosecution’s evidence in detail in advance. It is often preferable not to do so, in order that the trial judge should be attuned to the case as it is presented to the jury and should not be distracted with the statements of witnesses who may not be called or who may give oral evidence that departs from their statements. The more a trial judge is encumbered with material that will not go to the jury, the greater the risk of mistake. Pre-reading of the Crown’s evidence to the extent called for by an application of this nature will in most cases add to the amount of judge time that has to be allocated to a trial and may of itself cause delay where the application is brought close to the trial commencement date.

20. An application under s 45(5) also requires careful review of the material produced by the Commission. Where this consists of 1,200 pages of transcript, as in the present case, that is another substantial exercise, with similar consequences for length and delay of criminal proceedings. The Commission could streamline applications of this nature by preparing for the Court a precis or condensed form of each examination transcript, eliminating, for example, answers that involve only evasion, prevarication or repetition. The transcripts reviewed on the present application included hundreds of pages on which the examiner was not able to elicit anything of substance from the examinee.

21. The Commission submitted to the Court a timetable of further steps to be implemented if it should be found, to a prima facie level, that the evidence had relevance to the foreseeable issues in the trial and that its release to the prosecution and defence may be warranted. The further steps were set out in an aide memoire, reproduced in the Schedule to this judgment.

22. According to this timetable, before release the Commission would have an opportunity to review the transcripts for public interest immunity. There would be an adjournment during which the Crown Solicitor’s Office would be briefed on any such issue and then a closed court hearing on public interest immunity. According to the Commission’s timetable, if the Court considered it necessary to notify any of the examinees of the intended release of the transcripts, this “may take some time, the length of which will be unknown until after the process has commenced”. The Commission proposed further closed court hearings of the examinees, when located, in the absence of both the prosecution and the accused. It proposed a final closed court hearing in which the prosecution and defence could make submissions on the ultimate issue under s 45(5).

17. From this it is apparent that the Commission regards a Crown’s s 45(5) application as a potentially significant piece of satellite litigation. If all of the suggested processes had been required in the present case, the trial could not have commenced on its scheduled date of 30 March 2019 and probably not for some weeks thereafter. In the event, the prima facie stage was not reached and it has not become necessary to determine whether an application under s 45(5) need become as complicated and time-consuming as the Commission suggests. However, it is apparent that the bringing of applications of this nature should not be deferred by the Crown to dates as close to the commencement of the relevant trial as occurred in this case. A similarly belated application was made in a related trial listed to commence on the first day of term in 2020. There the Crown made an application under s 45 on the third last Court sitting day of 2019.

18. Taking into account the elaborate nature of the procedure envisaged by the Commission for these applications, if they are not brought in good time they are bound to delay and disrupt trials. In R v Hawat (No 1) the scheduled trial date had to be deferred approximately one week to enable the trial judge to examine the intended Crown case, review some 1,200 pages of material from the Commission and decide an application of this nature. In my view responsibility falls upon the Crime Commission to make itself aware of the listing of trials in relation to which it may hold relevant information and to notify the Crown under s 15A of the Director of Public Prosecutions Act at the earliest possible date. At the time of the trial date being fixed the Crown should make known to the Criminal List judge whether there is to be an application under s 45 so that sufficient hearing days can be reserved by the appointed trial judge to deal with it, well before the trial.

Order

1. For the above reasons, an order will now be entered that par 3 of the notice of motion filed by the Crown on 3 March 2020 be dismissed.

**********************

SCHEDULE

AIDE MEMOIRE

ANTICIPATED STEPS FOR PROCEEDINGS IN RELATION TO

SUBS. 45(4) & (5) CRIME COMMISSION ACT 2012 (NSW) ('THE ACT')

Description of step	Moving Party	Estimated time period/date.
Application filed seeking the Court issue a Certificate pursuant to section 45(4) of the Act.	P/D	[Date filed].
1	NSWCC to be provided notice of the application and attend at listing of s45(4) application to advise the Court: 1. if it has any objections to a s45(4) certificate being granted; and 2. in working out a timetable for the matter.	P/D	[Court to list matter when suitable for directions].
2	Parties make submissions to the Court in relation to the issue of the s45(4) certificate.	P/D	[Court to list matter when suitable for submissions].
3	Court to determine if: 1. it may be desirable and in the interest of justice (s45(4)(b)) that particular evidence given before the Commission in relation to which the Commission has given a direction under section 45 of the Act be made available to the person charged with the offence concerned or to a legal practitioner representing the person and to the prosecutor; and if so 2. the Court may give to the Commission a certificate to that effect.	Court	[Subject to Court availability].
If the Court grants a certificate pursuant to s45(4) of the Act the NSWCC must make the evidence available to the Court, [see proposed timing below].
4	NECESSARY steps preceding making the evidence available to the Court: (a) NSWCC proof transcripts and print same for Court; (b) collate exhibits to hearing transcripts; (c) provide the evidence to the Court for the Court to examine on a confidential basis (including material exhibited in the relevant hearings). Court to determine return date.	NSWCC	Note: Material estimated to be ready by [insert date].
5	MEANWHILE NSWCC to review transcripts for potential Public Interest Immunity (PII) and other relevant issues to be brought to the attention of the Court. Note: In the event that there are PII claims the CSO will need to be briefed (NSW Government Core Legal Work Guidelines 1 July 2016 - Annexure A) and the following draft timetable may need to be amended.	NSWCC	Estimated to be complete by [to be advised].
6	Court to review transcripts and exhibits.	Court	Subject to Court availability/time.
In the event that the Court proposes to proceed to determine direction under s45(5) of the Act (following examination of the Transcripts provided by the NSWCC)
7	NSWCC to: 1. notify the relevant witnesses of the application to make their evidence available; and 2. the NSWCC to try and obtain the witnesses’ views on the potential release of their evidence; and 3. if they wish to be heard in relation to same. [Considered by Hamill J in R v Qaumi & Ors (No 11) [2016] NSWSC 252 and by Adams J in R v Hawat (No 1) [2019] NSWSC 1583].	NSWCC	Note: Experientially this process may take some time, the length of which will be unknown until after the process has commenced.
8	NSWCC to notify the Court whether the relevant witness seeks to be heard on the question of making the evidence available under s45(5) of the Act.	NSWCC	Subject to the above.
9	In closed court without defendants’ representatives or ODPP being present, any public interest immunity application nor other claim brought to the Court’s attention to be determined.	NSWCC
10	In closed court without defendants’ representatives or ODPP being present any submissions to be made by the relevant witness to be heard.	NSWCC Witness
11	In closed court with parties present, ODPP and defence representatives to make any submissions on whether the evidence should be made available under s45(5) of the Act.	P/D
12	After examining the particular evidence, Court to determine whether it is satisfied that the interests of justice require that the particular evidence given before the NSWCC, in relation to which the NSWCC has given a direction under s45 of the Act, be made available to the person charged with the offence concerned or to a legal practitioner representing the person and to the prosecutor.	Court
13	Further Issue/Endorsements.

Decision last updated: 21 May 2020