R v Sultani; R v Munshizada; R v Baines; R v Danishyar (Non-publication orders)

[2021] NSWSC 1611

Supreme Court

New South Wales

Medium Neutral Citation:

R v Sultani; R v Munshizada; R v Baines; R v Danishyar (Non-publication orders) [2021] NSWSC 1611

Hearing dates:

6 December 2021

Date of orders:

6 December 2021

Decision date:

06 December 2021

Jurisdiction:

Common Law - Criminal

Before:

Fagan J

Decision:

Order 6 made on 26 August 2021 is varied by altering the time for expiry of the non-publication orders referred to therein to 4:00pm on 6 December, the amended order then to read as follows:

“6. All orders prohibiting publication of charges, pleas, evidence, submissions, verdicts and other aspects of the proceedings against the offenders for the murders of Michael Davey, Mehmet Yilmaz and Pasquale Barbaro are continued in force up to 6 December 2021 but will terminate and cease to be of effect from 4:00 pm on 6 December 2021.

Catchwords:

NON-PUBLICATION ORDERS

Legislation Cited:

Court Suppression and Non-publication Orders Act 2007 (NSW)

Crimes Act 1900 (NSW)

Category:

Procedural rulings

Parties:

Regina
Abuzar Sultani
Siar Munshizada
Joshua Baines
Mirwais Danishyar
Seyed Hosseinishoja
Sayed Anush Abdaly
Mustafa Shekeb

Representation:

Counsel:
E Balodis (Crown)
A Evers (Sultani)
TF Woods (Munshizada)
P D Lange (Baines, Danishyar, Hosseinishoja, Abdaly, Shekeb)
A Saunders (Fairfax Media Pty Ltd)

Solicitors:
Solicitor for Director of Public Prosecutions
Hajje Lawyers (Sultani)
Jamieson Criminal Law (Munshizada)
K Kyriacou & Co (Baines)
Zahr Partners (Danishyar)

File Number(s):

2016/358098; 2016/358164; 2016/358034; 2016/358151

Publication restriction:

No

Judgment

1. Before the Court are applications under the Courts (Suppression and Non-publication Orders) Act 2010 (NSW) (“the Suppression Act”) with respect to trials that were conducted before me in 2020 and earlier this year and in relation to sentence proceedings that are now about to take place following verdicts of guilty in some of those trials. The sentence proceedings are listed to commence before me today and to continue on Tuesday Wednesday and Friday of this week, being 7, 8 and 10 December.

Application for review by the four offenders awaiting sentence

2. The four offenders whose sentence proceedings are to be conducted this week apply under s 13 of the Suppression Act for review of the following order made on 26 August 2021:

6.   All orders prohibiting publication of charges, pleas, evidence, submissions, verdicts and other aspects of the proceedings against the offenders for the murders of Michael Davey, Mehmet Yilmaz and Pasquale Barbaro are continued in force up to 6 December 2021 but will terminate and cease to be of effect from 10:00 am on 6 December 2021.

3. The four offenders ask that the termination point of 10:00am today be vacated and that the non-publication orders made in relation to the offenders’ trials in this Court be continued. They also seek prospective non-publication orders in relation to the sentence proceedings.

4. The ground of the application is that the orders sought are “necessary to prevent prejudice to the proper administration of justice”, within the meaning of s 8(1)(a) of the Suppression Act, because the offenders are to be tried in the District Court commencing on 7 February 2022. That trial will be on an indictment alleging 36 counts, including participation in a criminal group (s 93T of the Crimes Act 1900 (NSW)), various offences of violence (causing grievous bodily harm or actual bodily harm, to more than one victim), supply of prohibited drugs and take and detain for advantage (“the criminal group indictment”). It is argued that, in the absence of non-publication orders, the trials that have been concluded and the sentence proceedings that I am about to embark upon will likely attract publicity that would come to the attention of jurors who may be selected for the trial in the District Court. It is argued that unless the Court continues the earlier orders and makes ongoing orders in respect of the sentence proceedings, the four offenders will be unable to secure a fair trial on the criminal group indictment in the District Court. The estimated duration of that trial is 12 weeks.

5. Two of the offenders Siar Munshizada and Abuzar Sultani are each to be sentenced for the murders of three men, as follows:

Michael Davey at Kingswood on 30 March 2016

Mehmet Yilmaz at St Marys on 9 September 2016

Pasquale Barbaro at Earlwood on 14 November 2016.

6. Abuzar Sultani pleaded guilty to the Yilmaz and Barbaro counts on 11 March 2019 and to the murder of Michael Davey on 18 December 2019. Sentencing of him has been deferred pending the trials of his co-accused, in order that the sentences imposed may reflect the parts played by each person convicted of each crime. Siar Munshizada defended the three murder charges and was found guilty by juries in separate trials. The verdicts were returned on 11 March 2020, 26 April 2021 and 25 May 2021, respectively.

7. Mirwais Danishyar and Joshua Baines are each to be sentenced for the murder of Pasquale Barbaro. Both of these offenders were also charged with Mehmet Yilmaz’ murder but were acquitted. For the murder of Pasquale Barbaro, Joshua Baines was found guilty by a jury on 6 November 2020. Mirwais Danishyar was prosecuted for the murder of Pasquale Barbaro under s 346 of the Crimes Act 1900 (NSW) as an accessory before the fact to the commission of the principal offence by Abuzar Sultani. On the same indictment he was charged as an accessory after the fact to that murder, on the basis that he assisted Sultani to escape detection and apprehension. His jury returned verdicts of guilty on both counts on 19 March 2021.

Application by co-accused charged in the District Court

8. There is also before the Court an application by Seyed Hosseinishoja, Sayed Anush Abduly and Mustafa Shekeb that the order of 26 August 2021 be vacated in so far as it has the effect of terminating the prior non-publication orders at 10:00am today. These three applicants are charged together with the four offenders on the criminal group indictment. They contend that publication of information concerning prosecutions of the four offenders for the murders of which they have been convicted will prevent them from obtaining a fair trial in the District Court because the offences there charged are alleged to have arisen out of the association of all seven men in a criminal group. On the same basis the three co-offenders apply for a non-publication order in respect of the sentence proceedings that I am about to embark upon

9. For brevity each of the four offenders will be referred to hereafter by surname only.

Non-publication orders in force since September 2018

10. A schedule of the various non-publication orders that have been made and that are brought to an end at 10:00am today by force of my order of 26 August 2021 is attached to these reasons. The following is a summary of the circumstances that led to each such order being made.

11. On 29 November 2016 the four offenders were arrested and charged with the murder of Pasquale Barbaro. The prosecution in relation to Pasquale Barbaro’s death reached this Court in March 2018 and a joint trial of all four offenders on that single count was listed for 12 November that year. On 23 September 2018 a daily newspaper with extensive circulation in Sydney published a detailed article concerning the murder and the arrest of the four offenders. That publication was brought to the Court’s attention on 26 September 2018. It had the potential to compromise the impartiality of prospective jurors and to necessitate adjournment of the joint trial, which was then only six weeks away.

12. On 26 September 2018 I made interim orders prohibiting until further order any publication of the evidence given and submissions made during pre-trial proceedings. In similar terms I ordered that there be no publication or other disclosure of material from the Crown’s brief of evidence in relation to the Barbaro murder, or the murders of Michael Davey and Mehmet Yilmaz, charges for which were at an earlier stage of the criminal process.

13. On 11 October 2018, in the proceedings against all four offenders for the murder of Pasquale Barbaro, I made another non-publication order, this time in relation to evidence given and submissions made in the Crown’s application to vacate the November 2018 trial date. In the event, the trial had to be vacated because the Crown was not ready to proceed and because a revised estimate of the hearing time could not be accommodated to the Court calendar for 2018.

14. On 11 March 2019, in proceedings on an indictment of Sultani for the murders of both Pasquale Barbaro and Mehmet Yilmaz, I made orders prohibiting publication of his pleas of guilty entered that day. That was done in the expectation that a joint trial of Munshizada, Baines and Danishyar for those two murders would take place very shortly thereafter. However, relisting of the proposed joint trial was then delayed throughout 2019, primarily due to difficulties experienced by the accused obtaining legally aided representation: see R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834.

15. On 18 December 2019 Sultani pleaded guilty to the murder of Michael Davey. The Court made orders forbidding publication of the arraignment proceedings or publication of any information tending to identify Sultani or his plea to this further charge. This order was to continue until verdicts should be returned in the trials of Munshizada, Baines and Danishyar for the murders of Mehmet Yilmaz and Pasquale Barbaro.

16. The Crown then elected to try Munshizada, first and separately, for the murder of Michael Davey, commencing on 3 February 2020. At the outset of that trial I made a further order prohibiting publication of the charge, plea and any evidence given, to remain in force until verdicts should be returned in the trials of Munshizada, Baines and Danishyar for the murders of Mehmet Yilmaz and Pasquale Barbaro. Munshizada’s jury found him guilty of the murder of Michael Davey on 11 March 2020 and a joint trial of the three accused for the two murders was listed for 30 March 2020. That trial could not proceed at that date because public-health orders came into force and prevented the conduct of any jury trials until October 2020.

17. For reasons relating to differences between the evidence admissible against each accused respectively, the Crown then filed indictments against each offender individually, with a separate indictment for each murder. Baines was tried for the murder of Pasquale Barbaro in October and early November 2020. At the commencement of his trial a non-publication order was made with respect to all that should take place therein, effective until a verdict should be returned against all three offenders for the Yilmaz and Barbaro murders. The remaining individual trials followed, one immediately after the other, between 18 January 2021 and 6 July 2021. Non-publication orders were made at the outset of each trial, on 18 January 2021, 1 March 2021, 29 March 2021, 28 April 2021 and 26 May 2021.

Reasons for non-publication orders made during the trial sequence

18. Non-publication orders were made and continued to the extent described above because there was a significant probability that publication of the evidence and/or the verdicts in any of the trials might come to the attention of potential jurors for the subsequent trials. That would likely have required some delay following any such publication before the commencement of the next trial, given the significant similarities in the way in which each murder was alleged by the Crown to have been committed and the identity and close association of each of the four accused. The individual trials were estimated, in advance, each to require 4-6 weeks. Those estimates of proved reasonably reliable. In combination with the length of each trial, any significant delay between them would have extended final disposition of all charges by many months.

19. At each stage of the above listing history it was considered necessary to conduct the trials in as quick succession as could be achieved, both to limit the duration of the accused’s remand in custody before they would have the opportunity to defend the charges and to complete all proceedings in the Supreme Court so that trials of the accused on other charges, in some cases with additional co-accused, could proceed in the District Court. Further, the Crown cases for the murders of Mehmet Yilmaz and Pasquale Barbaro were supported by the evidence of several informant witnesses whose safety has been considered by police to be at risk, including from those of the four offenders’ associates who are not in custody. The Court has received both open and confidential affidavits concerning the position of informant witnesses throughout the various trials. Orders have from time to time been made to protect those witnesses’ identity. The involvement of witnesses in that class and the concern of police with respect to their safety have been, at all times, factors favouring conduct of the trials in as quick succession as could be achieved.

20. By the commencement of the first trial of Baines in October 2020 there was the additional consideration, again favouring back to back listings, that the remand of the three accused who were still contesting the charges had by that stage extended to 4 years. It was not considered reasonable, in the administration of this Court’s criminal lists, to withhold non-publication orders and instead to attempt to avert prejudice to the fairness of subsequent trials by listing each one with a significant delay in between. In view of the protraction of proceedings that had already occurred, the objective of open justice and unhindered publication of court proceedings had to give way to the practical requirement of conducting these individual trials in close succession. The verdicts referred to above have followed upon a total of seven trials utilising altogether about 29 weeks of Court and jury time.

Continuation of non-publication orders to protect imminent District Court trials

21. When the last in the series of trials commenced on 26 May 2021, being the trial of Joshua Baines for the murder of Mehmet Yilmaz, there was discussion at T 1-3 on the first day of the trial regarding an appropriate time limit on the operation of the nonpublication order. I made the following observations at that point:

[W]e have a date for [sentence proceedings in respect of] one other offender of 10 September. My inclination is to put any sentence matters into that week. Once the sentence proceedings are underway they will done in the open Court. We will have to coordinate with the District Court to ensure that they do not compromise trials, but the suppression is going to have to stop at that point.

[…]

HIS HONOUR: No, we were just giving a further date to take account of a forthcoming trial in the District Court.

CROWN PROSECUTOR: Just flagging the need for consideration is all I was doing, your Honour.

HIS HONOUR: That's fine. I will change [the draft nonpublication order submitted by the Crown] to read at the moment until the commencement of sentence proceedings for any of those four and other non publication orders that are in place at the moment will need to be amended to that wording because at present they are to the conclusion of verdict being taken. That doesn't take account of the forthcoming District Court trial.

22. The District Court trial that was then in contemplation was a joint trial of the four offenders for conspiracy to murder Ricky Ciano. As at 26 May 2021, that trial was listed to commence in July 2021 with an estimate of 4-6 weeks. The non-publication order made on 26 May 2021 at the commencement of the retrial of Baines for the murder of Mehmet Yilmaz was expressed to remain in force to a date specified as follows:

until the commencement of sentence proceedings for any of Abuzar Sultani, Joshua Baines, Siar Munshizada and Mirwais Danishyar for the murders of Michael Davey, Mehmet Yilmaz and/or Pasquale Barbaro.

23. Baines’ retrial concluded on 6 July 2021. By that date I had fixed all of the sentence hearings that are now before me for 2, 3, 9 and 10 September 2021. The adjournment until those dates was intended to give all offenders time to obtain psychiatrists’ and psychologists’ reports, as they requested, and also to allow the trials of some of the offenders that were imminent in the District Court to be concluded, without the need for deferral. Given the very short time until the next trial of the offenders, in the District Court, and recognizing the difficulties that Court was already experiencing as a result of public health restrictions, I thought it necessary to continue the non-publication orders for two months.

Termination of non-publication orders by the orders of 26 August 2021

24. On 26 August I vacated the September sentence hearing dates on the application of the four offenders. All of them sought more time within which to obtain reports. At that date the conduct of criminal trials in the District Court had been suspended due to the public health crisis. A short trial of Munshizada on a charge of affray was listed for November 2021 and it was expected that a trial of Danishyar on one other charge, which had initially been listed for 27 September 2021, might yet be able to proceed in the near future. I adjourned the sentence hearings to their current dates in order to avoid a clash with either of those District Court trials if they were able to go ahead upon public health restrictions being eased.

25. Prior to 26 August 2021 I received detailed written submissions from Mr Wilson of Senior Counsel on behalf of Baines, arguing for continuation of the non-publication orders beyond the commencement of the sentence proceedings and seeking orders that the sentence proceedings and the Remarks on Sentence not be published until after the trial of Baines on other charges in the District Court. The other offenders joined in the application.

26. My reasons for refusing the application and for making order 6 quoted at [2] above were given at pages 9-14 of the transcript of proceedings on 26 August 2021. In summary my reasons were as follows:

1. Continuance of the non-publication orders until commencement of the sentence proceedings would avoid the need for adjournment of other trials of the offenders that were listed in the District Court, it being recognised that publicity attendant upon the sentence proceedings might otherwise require such an adjournment.

2. It was not necessary to the administration of justice that the non-publication orders be continued beyond 6 December 2021 for the purpose of avoiding publicity that might affect the trial on the criminal group indictment listed for 7 February 2022. I said that any such potential prejudice:

will be a matter of application to the trial judge in that matter. It will be a matter for him [expected to be his Honour Judge Zahra SC] to judge as to, in light of whatever publicity is given to these matters, whether there’s some insurmountable problem or whether adequate jury directions will deal with the matter. […].

The essential concern [of the submissions on behalf of the offenders] is that this will attract a lot of attention in the press, it will be reported and that this may compromise subsequent trials next year. But it just has to be done and the effect on subsequent trials has to be worked with.

3. The “middle ground” proposed by Mr Lange of Council on behalf of Danishyar, that orders be made for the offenders to be referred to only by pseudonyms, was not acceptable. That course would be a derogation from open justice in relation to the prosecution of the very serious crimes of which the offenders had been convicted. The non-necessity for orders under the Suppression Act, where potential prejudice to future District Court trials could be addressed by adjournment and/or appropriate directions to jurors, was just as clear in relation to pseudonym orders as in relation to more general non-publication orders.

Disposition of the application for review and for further orders

27. There has been no material change of circumstances so far as the position of the four offenders is concerned that would cause me to vary or vacate order 6 made on 26 August 2021. I remain of the view that neither continuation of the non-publication orders nor making of fresh orders to prohibit publication of the sentence proceedings is “necessary to the administration of justice”. It remains to be seen what publicity will be given to the prosecution of these four offenders on the murder charges that have brought them before this Court. If, at the commencement of the trial on the criminal group indictment, any application is made for adjournment or stay, the trial judge will have to decide whether the extent and character of publicity warrants such a course or whether it may be sufficient to warn the jurors in waiting that they should seek to be excused if they have heard or read about the Supreme Court trials and/or to instruct them not to search out such information from the Internet or from other publicly available sources.

28. I take into account that, on the criminal group indictment, the charges against the four offenders and against the three co-accused who are applicants before me today are of an entirely different character from the murders of which the four offenders have been convicted. The offences charged on that indictment are not are alleged to have occurred in the course of or in connection with the murders. They are particularised on the basis of discrete dates and circumstances. If any of the jurors who are empanelled in the District Court on 7 February 2022 should be aware of the prosecution of the four offenders in this Court and of the outcome, I see at present no reason why it could not be expected that those jurors would be able to follow a direction to decide the charges before them only on the evidence in the trial and without regard to the very different allegations brought against the four offenders in this Court.

Orders

29. Upon my indication that I would dismiss the applications before me, counsel for the four offenders and for the three co-accused in the District Court stated that they will bring an urgent application in the Court of Criminal Appeal for leave to appeal that decision. I will therefore extend the time for expiry of the nonpublication orders, as specified in the order of 26 August 2021, until 4:00pm today. The purpose of this is to enable an application to be made to the Court of Criminal Appeal and, if that Court is not able to deal with the matter today, then it may see fit to extend the time still further.

30. The order of the Court is:

Order 6 made on 26 August 2021 is varied by altering the time for expiry of the non-publication orders referred to therein to 4:00pm on 6 December, the amended order then to read as follows:

“6. All orders prohibiting publication of charges, pleas, evidence, submissions, verdicts and other aspects of the proceedings against the offenders for the murders of Michael Davey, Mehmet Yilmaz and Pasquale Barbaro are continued in force up to 6 December 2021 but will terminate and cease to be of effect from 4:00 pm on 6 December 2021.

Decision last updated: 16 December 2021