R v Munshizada, Danishyar and Baines

1. [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. [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. [3]

   Relevant extracts from s 45 are as follows:

4. [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. [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)

1. [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).

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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

1. [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.

2. [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.

3. [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. (1)

      it would materially add to the Crown case or

   2. (2)

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

   3. (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.

4. [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)

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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).

7. [23]

   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.

8. [24]

   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.

   1. (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.