Munshizada v R

1. [1]

   THE COURT: Siar Munshizada was found guilty on 11 March 2020, after a trial by jury, of the murder of Michael Davey in March 2016. He was sentenced by Fagan J to imprisonment for life. There is no appeal against that sentence.

2. [2]

   Mr Munshizada seeks leave to appeal against his conviction on four grounds:

3. [3]

   Mr Munshizada requires an extension of time, which is opposed by the Crown. His solicitor’s affidavit explains the delay was in large part due to Mr Munshizada having to defend two further murder trials and another trial in the District Court, until mid-2023.

The Crown case against Mr Munshizada

1. [4]

   Mr Davey was a member of the Penrith City Chapter of the Rebels outlaw motorcycle gang. He was shot dead in the street outside his home in Kingswood just after midnight on 30 March 2016. Mr Munshizada was a member of the Burwood Chapter of the Rebels. The president of the Burwood Chapter was Abuzar (“Abs”) Sultani. There was evidence in the trial that Mr Sultani had pleaded guilty to the murder of Mr Davey.

2. [5]

   The Crown case was that Mr Munshizada was one of two shooters who murdered Mr Davey in the early hours of 30 March 2016. In the alternative, the Crown alleged that Mr Munshizada was a participant in a joint criminal enterprise to murder him, and was present with Mr Sultani at the crime scene, as either the driver or passenger of a white Audi, ready and willing to assist in the killing of Mr Davey.

Summary of evidence in the trial relevant to the grounds of appeal

1. [6]

   The Crown case was circumstantial. We will consider the disputed admission the subject of Grounds 2 and 3 separately, in relation to those grounds. The trial judge appropriately directed the jury to consider circumstances which established that Mr Munshizada was present at the shooting. That was the essential fact in issue.

2. [7]

   Around midnight on 29 March 2016, Mr Davey left his home in response to a message inviting him to supply drugs. He was shot nine times in the street with two different guns. Several of the gunshot wounds were consistent with having been fired by a 9mm Desert Eagle pistol. Two wounds were consistent with having come from a .25 calibre Colt pistol. Mr Davey was shot multiple times in the head and chest, as well as other parts of his body. Both of the .25 calibre shots penetrated his chest, one entering his heart and lung. One of the 9mm rounds entered under Mr Davey’s chin and lodged in his parietal lobe. The doctor who performed the post-mortem examination gave evidence that the severity of the wound path through the brain would highly likely have caused sudden incapacitation (collapse). A photograph of Mr Davey showed his legs at approximate 90° angles, in what one witness described as a running position.

3. [8]

   Several neighbours gave evidence of hearing gunshots. Mr Munshizada relied on their evidence of describing pauses between gunshots to support his case at trial that there was one shooter who used two weapons.

4. [9]

   A witness who gave evidence under the name “RS093” said he knew Mr Sultani and Mr Munshizada from the Burwood Chapter of the Rebels. After he left the Rebels, he was involved in criminal activity with Mr Sultani. In December 2015, Mr Sultani showed him a photograph of a person who he said he needed to locate. He said the person’s name was Mick Davey or “Mickey D” and that he was a member of the Penrith Chapter of the Rebels. RS093 drove past some of the addresses he was given by Mr Sultani.

5. [10]

   A witness who gave evidence as “RS670” said he knew Mr Sultani from the Burwood Chapter. He said he knew that Mr Sultani had a safe house in Concord. He met people, on behalf of Mr Sultani, in relation to the safe house, in a nearby street. He usually met a person he knew as “Willie.” In about February 2016, he had a conversation with Mr Sultani about finding a place to test guns. RS670 knew a person who lived at a property around Mangrove Mountain on the Central Coast. RS670 asked that person if they could test fire some guns there. The occupant agreed and RS670 told Mr Sultani. The shoot was planned for a Sunday in February 2016.

6. [11]

   On the day of the shoot, at the request of Mr Sultani, RS670 met with Willie (Viliami Finau) near the Concord safe house. Mr Finau gave him a big bag to put in the car. The bag weighed roughly 10 or 20 kilograms. He drove with it to Mangrove Mountain. Mr Sultani and Mr Munshizada drove to a meeting point on the Central Coast. RS670 then drove them to the property.

7. [12]

   RS670 later showed police the area where he and Mr Sultani and Mr Munshizada had gone to shoot. He described it as a little clearing with some grass, surrounded by bigger trees, and some whole plastic bottles.

8. [13]

   RS670 opened the bag containing firearms he had been given by Mr Finau. There was an Austeyr assault rifle, a Desert Eagle 9mm semiautomatic pistol, a revolver and a couple of smaller handguns, the calibre and brand of which he could not recall. He said he did not observe any firearm cartridges or casings in the area before they started shooting. He said they tested the firearms by firing them into the bushes and that they “used a couple of bottles as target practice”. He said Mr Munshizada was testing the Austeyr and Mr Sultani was testing the Desert Eagle. He said Mr Munshizada used the revolver. He could not recall if either of them used the two other small handguns. The ammunition came in the bag. They spent about an hour at the site. He said they picked up the fired cartridges from the Austeyr and the ejected casings from the Desert Eagle before they left. The casings from the revolver remained in the gun.

9. [14]

   On the second day of his evidence, RS670 said that he fired the 9mm revolver because it had a problem. Mr Sultani and Mr Munshizada were scared it was going to blow up if they used it.

10. [15]

    He said Mr Sultani and Mr Munshizada fired a clip each out of the Austeyr and the Desert Eagle 9mm.

11. [16]

    After the guns were fired they were put back in the bag and RS670 returned them to Mr Finau. RS670 was shown a photograph which he said looked to be “very similar” to the Desert Eagle 9mm firearm that Mr Sultani and Mr Munshizada used when shooting at the property. He identified photographs of what looked to be the 9mm revolver they were using and part of an assault rifle, similar to the Austeyr, as well as clips from the assault rifle.

12. [17]

    RS670 was later shown a gun which he said was a Desert Eagle gun which looked like the one Mr Sultani was using at Mangrove Mountain.

13. [18]

    He identified another firearm as a Colt branded .22 calibre pistol, which Mr Sultani had told him someone had tried to pull apart but could not get back together. He said he bought such a firearm in roughly 2015 and gave it to Mr Sultani within a couple of days of doing so. He said the firearm he purchased looked to be the same as the one he was shown. It was the Crown case that RS670 was mistaken in his identification of that gun as a .22 Colt pistol, and that the pistol was a .25 Colt pistol. A ballistics expert gave evidence that there was approximately a 1mm difference in width of the barrels of such pistols.

14. [19]

    RS670 said that at Mangrove Mountain bottles were placed on stumps or in the trees and Mr Sultani and Mr Munshizada fired at them.

15. [20]

    In cross-examination of RS670, it was not disputed that Mr Munshizada was present and shooting at Mangrove Mountain. RS670 maintained that this happened around February 2016. In cross-examination, RS670 was referred to the statement he had made to police in which he said that Mr Sultani and Mr Munshizada each shot one clip from the Austeyr firearm, the .22 calibre pistols, and the 9mm Desert Eagle. He discharged one round from the 9mm revolver.

16. [21]

    On 1 September 2016, police searched a unit in Concord and found, among other guns, a 9mm Desert Eagle pistol in a disassembled state with its serial number “obliterated”, and a disassembled .25 calibre automatic Colt pistol. By reference to a message Mr Sultani sent to RS670 on 3 September 2016, that “one of main safe house got raided”, the Crown maintained that the Concord unit was a safe house used by Mr Sultani to store firearms.

17. [22]

    A ballistics expert reassembled the Colt and Desert Eagle pistols and test fired them. The barrel and magazine of the Desert Eagle pistol were missing. Both pistols showed signs of deliberate mechanical damage with a drill, so as to change the characteristics of cartridge cases fired from the guns. At about 12:30AM on 30 March 2016, about 20 minutes after Mr Davey was shot, Mr Finau left the apartment where Mr Sultani and Mr Munshizada lived, carrying a handheld electric drill. He returned to the unit with them about an hour later, still carrying the drill.

18. [23]

    In January 2017, police went to the Mangrove Mountain property, and searched the area where RS670 showed them the shooting had occurred. They found sixteen 9mm Parabellum calibre spent cartridge cases and seven .25mm automatic spent cartridge cases, as well as cartridges capable of being fired by an Austeyr rifle. Ballistics experts said that all of the sixteen 9mm cartridge cases had been discharged from the same firearm as that which discharged the six 9mm Parabellum cartridge cases located at the scene where Mr Davey was shot. Each of the seven .25mm automatic calibre cartridge cases had been discharged from the same firearm as the two .25 automatic calibre cartridge cases located at the murder scene.

19. [24]

    It was on this basis that the Crown submitted to the jury that the two firearms used to murder Mr Davey were both fired at the Mangrove Mountain site. Mr Munshizada did not dispute he had fired weapons there with Mr Sultani, although he disputed the presence of a .25 pistol or that the Crown had shown he had used such a pistol.

20. [25]

    Mr Davey’s partner gave evidence that at the time he was shot they were living together in Stafford Street, Kingswood. She knew he was a member of the Penrith Chapter of the Rebels motorcycle club. He was known by nicknames, including Mickey D.

21. [26]

    She said that a week before the night he was shot, Mr Davey asked her to go outside with him to meet someone. She did not ask who. They walked outside at around 11PM or midnight and he met someone in the street. When they went outside, Mr Davey carried a large green San Pellegrino water bottle. She said they walked down the street and she waited across the road. Mr Davey stood in a driveway and a white car approached him. A man got out of the car, grabbed the bottle, returned to the car which drove off. She and Mr Davey went back inside. She described the man who got out of the white car as tall, with dark features, dark skin, dark, short hair and a blue worker’s jacket, “like a puffery jacket, like a windshield jacket” of “darkish colour”.

22. [27]

    From February 2016, Mr Sultani and Mr Munshizada lived together in a unit at Olympic Park. Police had installed a surveillance device outside the front door of that unit. On 23 March, Mirwais Danishyar, a member of the Burwood Rebels, entered the Olympic Park unit just before 1AM, having left it just after 7PM the day before. He was wearing clothing consistent with that described by Mr Davey’s partner as the person who had earlier collected the bottle from him. Records for a phone handset associated with a Blackberry handle “Ready2Rock” showed that it had connected to a cell tower near Mr Davey’s home at 9:30PM on 22 March 2016 and midnight on 23 March 2016, as well as to a cell tower at Sydney Olympic Park at 12:55AM. That coincided with Mr Danishyar’s return to the unit. Footage from the surveillance device outside the unit showed that Mr Munshizada and Mr Sultani were inside between about 9PM and midnight. It was the Crown case that the person using the “Ready2Rock” handle was connected with Mr Sultani and Mr Munshizada, and possibly Mr Danishyar, and that he used it on 22 March to arrange a meeting with Mr Davey on the pretext of a drug supply in order to obtain information about Mr Davey’s whereabouts.

23. [28]

    On 23 March 2016, an associate of a member of the Burwood Rebels hired a Holden Commodore. The Crown case was that it was being used by Mr Munshizada and others around the Olympic Park unit on the night of 29 March 2016 and into the early hours of the next morning. Based on CCTV footage and tracking data from a Mazda van, there was evidence that at 5:43PM on 29 March 2016, Mr Munshizada and two others named Baines and Abdaly left the unit. They travelled in the lift to the car park and at 5:48PM the Holden Commodore drove out. It was the Crown case that Mr Munshizada and the two other men travelled in the Commodore to a street in Ryde where they transferred to the Mazda van, twelve minutes after the Commodore left Olympic Park where the unit was located. The Crown case was that the men travelled in the Mazda van to a rented warehouse in Hornsby, where a white Audi and a HiAce van each fitted with false number plates were stored. Around 7:34PM, the Mazda van left the warehouse and returned to Ryde at about 8:05PM. At 7:58PM, the Mazda van, the Audi and the HiAce van also travelled to Ryde. The Crown alleged that Mr Munshizada and two other men had gone to Hornsby to collect the two extra cars.

24. [29]

    While that was occurring, Mr Danishyar and Mr Sultani left the unit together at around 8PM. Mr Danishyar was typing into a Blackberry.

25. [30]

    From 8:33PM until 8:49PM, Mr Davey was exchanging Blackberry messages with the handle “Ready2Rock”, with the latter indicating he would visit Mr Davey when he finished work.

26. [31]

    At 9:08PM, Mr Munshizada and Mr Sultani and three other men, including Mr Finau, returned to the Olympic Park unit complex. Mr Munshizada and Mr Sultani were wearing clothes consistent with having played soccer. They all entered the unit.

27. [32]

    At 9:24PM, Mr Munshizada left the unit and went to the ground level to bring Mr Danishyar up. Mr Danishyar handed Mr Munshizada what appeared to be a car key just after he entered the lift. It was the Crown case that it was the car key for the Holden Commodore and that it was Mr Danishyar who had collected it from Ryde and brought it back to the unit. As they were leaving the lift, Mr Danishyar showed a Blackberry device to Mr Munshizada.

28. [33]

    At 9:51PM, the “Ready2Rock” handle sent a message to Mr Davey saying he would be about an hour.

29. [34]

    At 10:04PM, Mr Munshizada, Mr Sultani and Mr Danishyar left the unit. They were all wearing dark tops and dark long pants. Mr Munshizada and Mr Sultani were both carrying an item which appeared to be a rain jacket. It was the Crown case that they were dressed that way and carrying the jackets to disguise their appearance. In the lift, Mr Danishyar was seen holding a Blackberry which he then put in his pocket.

30. [35]

    Mr Sultani and Mr Munshizada walked out of the building where they were joined by Mr Hosseinishoja and Mr Danishyar.

31. [36]

    At 10:12PM, a white car drove near the unit building. It was the Crown case that this was the Holden Commodore and that it contained Mr Sultani, Mr Munshizada, Mr Danishyar and Mr Hosseinishoja.

32. [37]

    Tracking on the Mazda van was activated at 10:25PM. It was the Crown case that the men transferred from the Holden Commodore to the Mazda van, the Audi and the HiAce van which had been left by Mr Munshizada and others earlier in the evening. It was the Crown case that by the time Mr Davey was shot, Mr Sultani and Mr Munshizada were in the Audi.

33. [38]

    At approximately 10:47PM, the Mazda van, the Audi and the HiAce van were captured by camera travelling westbound on the M4 towards Kingswood.

34. [39]

    The Audi was seen turning into a street in Kingswood, one street away from Mr Davey’s home, at 11:06PM.

35. [40]

    At 11:55PM the “Ready2Rock” handle sent Mr Davey a message which said, “Hey I’m here bro, in a white Audi, same spot, opposite the park.” Mr Davey replied “Okay, 2 mins bro I’ll walk up.” Mr Davey’s partner gave evidence that on the night of 29 March, they were on the couch in their home. He told her he was waiting for someone. He received a message, went to the kitchen, grabbed a San Pellegrino bottle and went out the door. Shortly afterward she heard gunshots.

Ground 2 - His Honour erred in admitting evidence of the conversations captured by surveillance device on 12 November 2016 and which became Exhibit/UUUU, either because a) the evidence was irrelevant; or b) it ought to have been excluded pursuant to s. 137 Evidence Act 1995.

1. [41]

   It is convenient to deal with Ground 2, which concerns a disputed piece of evidence, before dealing with Ground 1, asserting that the verdict was unreasonable.

2. [42]

   The challenged evidence is a recording of a conversation in the unit where Mr Munshizada lived. The conversation occurred and was recorded on 12 November 2016. Mr Munshizada was in the unit with two men named Abdaly and Topcu. It was not disputed that Mr Munshizada was a speaker in the conversation and spoke the challenged words. The issue concerned the meaning of the conversation. Mr Munshizada challenged and challenges the parts that the Crown asserts are admissions on the basis that they are indecipherable.

3. [43]

   At trial, counsel for Mr Munshizada objected to the admissibility of the recording. He submitted that what was not inaudible was fragmented. Fagan J listened to the recording without a transcript. His Honour decided that the recording was sufficiently audible, coherent, meaningful and consistent with the Crown case about the events shortly after midnight on 30 March 2016, and that it was therefore admissible.

4. [44]

   The jury were not given a transcript of the recording but were provided with headphones, including during their deliberations.

5. [45]

   The Crown contended at the trial and maintains that the following words could and can be heard:

6. [46]

   The Crown case was that the conversation was consistent with a number of facts about the murder of Mr Davey, including the references to “Davey”, that there were two shooters with two guns, that there were two gunshot wounds from the pistol the Crown alleged Mr Munshizada used in the shooting, and that the reference to “he went straight down and crossed his legs” was consistent with the evidence of the pathologist about the effect of the gunshot wound to Mr Davey’s brain causing him to collapse almost instantly upon being shot and the position of his legs in the photograph taken at the scene.

7. [47]

   Mr Munshizada’s case was that the conversation referred to a person named David, not Davey, that the initial phrase was not “that day we murdered Davey” but was “that day we were with David”, that the conversation referred to a physical fight, by reference to Mr Munshizada speaking about punches, and that the reference in the latter part of the conversation to “bullseye”, which the Crown asserted was referable to the accuracy of the shots to Mr Davey’s body, was a conversation about a Blackberry handle. The Crown contended that the phrase which it asserted was “I was happy with the bald one” was a reference to the Desert Eagle pistol used, on the Crown case, in the shooting, a reference to a “bald eagle.” Mr Munshizada contended that the word used was “Bold”, being a model of Blackberry. He pointed out that it was not the Crown case that he used the Desert Eagle pistol in the shooting of Mr Davey.

8. [48]

   Mr Munshizada submitted that because of the poor quality of the recording and that substantial portions of it are indecipherable, it should not have been admitted in the trial because it was irrelevant, in that it could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act 1995.

9. [49]

   In the alternative, Mr Munshizada submitted that the recording should have been excluded pursuant to s 137 of the Evidence Act because there was an unfair risk of prejudice that the jury would speculate about what could be heard on the recording.

10. [50]

    The Crown submitted that the recording was sufficiently clear to leave to the jury, was mostly audible, that some of the words spoken were not disputed by Mr Munshizada and though parts of it were not clearly audible, it was not irrelevant or unfairly prejudicial. The Crown submitted that the undisputed words and phrases were consistent with the Crown case about Mr Munshizada’s involvement in the murder and therefore could rationally affect the assessment of the probability of the existence of a fact in issue, so that the conversation was relevant. The Crown submitted that there was sufficient audible and undisputed content in the recording to provide a rational context for the conversation, such that the jury would not speculate about what had been said or what was meant and that the recording was accordingly not unfairly prejudicial.

11. [51]

    Both parties agreed that the correctness standard applies to this Court’s review of Fagan J’s decision to admit the recording: Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 and R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201. Both parties submitted that the Court should listen to the recorded conversation, with headphones, to determine the issues raised by Mr Munshizada as to its “intelligibility”, “coherence” and “ambiguities”.

12. [52]

    Both parties relied on the same authorities in support of their opposing arguments. In Director of Public Prosecutions v Roberts (Ruling No 4) [2021] VSC 778, Kaye JA considered the authorities including Butera v Director of Public Prosecutions (1987) 164 CLR 180; [1987] HCA 58 and Smith, Ashford & Schevella v The Queen (1990) 50 A Crim R 434. Kaye JA, summarising the relevant legal principles, said at [5]:

13. [53]

    In Smith, Ashford & Schevella, the Court at [451] stated the test to be:

14. [54]

    The Crown relied on the statement of Gaudron J in Butera at [207] that:

15. [55]

    We listened to the recording, with headphones, a number of times. Of the contentious parts of the conversation, the following was discerned:

16. [56]

    In our view, the words in the conversation were mostly clear. They were capable of having the meaning asserted by the Crown, demonstrating Mr Munshizada’s presence at and participation in the shooting. To the extent that any words were ambiguous or unclear, they were not such as to deprive the conversation of meaning and so render it unfairly prejudicial. The conversation was relevant in the defined sense. If parts of it could be construed as referring to other subjects, that was a matter for the jury’s consideration and did not preclude the evidence being admissible.

17. [57]

    The conversation was relevant and did not occasion unfair prejudice to Mr Munshizada in his trial. It did not require exclusion pursuant to s 137 of the Evidence Act. The recording was properly admitted by Fagan J. His Honour did not err in doing so.

18. [58]

    Ground 2 is not made out.

Ground 3 - Alternatively, his Honour failed to direct the jury as to the manner in which Exhibit/UUUU could be used by failing to direct the jury (a) that Exhibit/UUUU could be used to reason towards Mr Munshizada’s guilt, only if the jury were satisfied beyond reasonable doubt that, in the recording, Mr Munshizada had said something which proved he was present at the scene of the shooting, and (b) if the jury were not so satisfied then it should ignore Exhibit/UUUU.

1. [59]

   The Crown relied on the recorded conversation as part of its circumstantial case.

2. [60]

   Counsel for Mr Munshizada at trial submitted that the trial judge should direct the jury, in accordance with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, that the asserted admission in the recording was an indispensable intermediate fact such that the jury must be satisfied beyond reasonable doubt that the conversation contained an admission or admissions in order to use it as evidence against him.

3. [61]

   Fagan J disagreed and directed the jury in the following way:

4. [62]

   After the summing up, counsel for Mr Munshizada requested that a further direction be given to the jury about the recorded conversation. His Honour gave the jury the following further directions:

5. [63]

   Mr Munshizada submitted that the alleged admission in the recorded conversation was essential to proving his guilt, because without it the other evidence in the Crown case was not capable of proving his presence at the shooting and therefore his guilt of the offence charged. Mr Munshizada submitted that the jury should have been directed in accordance with Shepherd in respect of proof of the admission of Mr Munshizada’s presence. Counsel relied on decisions of the Victorian Court of Appeal and Supreme Court that admissions ought ordinarily to be proved beyond reasonable doubt and juries should be so directed: R v Franklin (2001) 3 VR 9; [2001] VSCA 79; R v Kotzmann [1999] 2 VR 123; [1999] VSCA 27; CG v R [2011] VSCA 211; R v Robertson [1998] 4 VR 30; R v Green (2002) 4 VR 471; [2002] VSCA 34, though qualified a submission to that effect as specific to the facts of this case.

6. [64]

   Mr Munshizada submitted that Fagan J erred in directing the jury that they had to be satisfied beyond reasonable doubt of the asserted admission in the conversation if they were to rely on that as sole proof of his guilt of the charge but that they did not need to be satisfied beyond reasonable doubt that the conversation was truthful and that it indicated that Mr Munshizada was present at the shooting if they were to consider it as a circumstance with the other circumstances in the case.

7. [65]

   Mr Munshizada submitted that in light of that direction, there was a “very real risk” that the jury would consider that a degree of satisfaction less than proof beyond reasonable doubt would be sufficient to prove the fact that he was present at the shooting. He submitted that a Shepherd direction would have emphasised the need for the jury to be satisfied beyond reasonable doubt of his presence at the scene.

8. [66]

   Mr Munshizada submitted that Fagan J should have directed the jury that if they were not satisfied beyond reasonable doubt that in the conversation he had admitted being present at the shooting, they should ignore the contents of the recording.

9. [67]

   The Crown submitted that Fagan J’s direction was in accordance with the High Court’s decision in Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21 (“Burns”). In Burns, Barwick CJ, Gibbs and Mason JJ (with whom Jacobs J agreed) said at [261]:

10. [68]

    The Crown submitted that the position in Victoria that proof of a confession or explicit admission ought ordinarily be proved to the criminal standard is not without qualification and has not been adopted as a general rule in New South Wales: see Hewitt v R [2021] NSWCCA 227.

11. [69]

    The Crown submitted that Fagan J appropriately directed the jury that the critical issue was what they could hear in the recording, what Mr Munshizada meant, and that in order to use the recording as an admission they needed to be satisfied that what he spoke about was his involvement in the murder of Mr Davey, that he knew what he was talking about and that he was speaking the truth. The Crown submitted that Fagan J directed the jury in accordance with Burns and Shepherd. The Crown submitted that the Crown did not rely on the alleged admissions as an indispensable link in a chain of reasoning towards guilt, but as only one aspect of the case. However, his Honour directed the jury as to possible uses they might make of the recording, including if they treated the recorded words as an admission by Mr Munshizada of his involvement in the murder and conclusive evidence of his guilt. If the jury treated the words or some of them in the recording as indicating Mr Munshizada was present at the murder, his Honour appropriately directed the jury to consider the words spoken as part of the Crown’s circumstantial case against him.

12. [70]

    The Crown submitted that there was no need for Fagan J to direct the jury to ignore the contents of the recording if they were not satisfied that the matters contended for by the Crown had been established, as parts of the conversation were not disputed. If they were satisfied that at least some of the conversation related to Mr Davey’s murder, it was open to them to rely upon those parts of the conversation, even if they did not accept all of the Crown’s contentions about the words spoken.

13. [71]

    The Crown submitted that Fagan J took a cautious approach and directed the jury that if they were going to use the asserted admission independently of all the other circumstances, they must be satisfied beyond reasonable doubt of what they heard, what the words meant, and that Mr Munshizada was speaking the truth, with his own knowledge of the things he said.

14. [72]

    The jury had to be satisfied beyond reasonable doubt that Mr Munshizada was present at the shooting, and the judge so directed them. They did not have to be satisfied beyond reasonable doubt that he admitted his presence at the shooting, unless they were to rely on it as the sole proof of his guilt. The direction his Honour gave was in accordance with Burns and Shepherd, the latter to the extent necessary. The distinction his Honour made in directing the jury that they must be satisfied beyond reasonable doubt of the accuracy, meaning and truth of the admission if they were to rely on it as sole proof of Mr Munshizada’s guilt, and that they did not need to be satisfied to that standard if they treated the admission as one of the circumstances in the Crown’s circumstantial case, was perfectly appropriate to the facts of this case. We do not accept Mr Munshizada’s submission that his Honour was required to direct the jury that they must be satisfied beyond reasonable doubt of the contents, meaning and truth of the admission or ignore it.

15. [73]

    Ground 3 is not made out.

Ground 4 - A miscarriage of justice was occasioned by the absence of fresh evidence.

1. [74]

   By an affidavit of his solicitor, Mr Munshizada particularised the fresh evidence which he asserted was not available during his trial as:

2. [75]

   The Crown’s position is that the evidence sought to be relied on by Mr Munshizada is not fresh, that none of it has the effect contended for, and that no miscarriage of justice was occasioned by its absence in the trial.

3. [76]

   Fresh evidence is evidence not available to an accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial, by the exercise of due diligence: Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; Rogerson v R; McNamara v R [2021] NSWCCA 160; (2021) 290 A Crim R 239; Tiriaki v R [2023] NSWCCA 73. The ultimate issue to be considered is whether there was a miscarriage of justice occasioned by the absence of the evidence at the trial.

4. [77]

   Mr Munshizada asserts that evidence that identified the user of the “Ready2Rock” Blackberry handle as Mirwais Danishyar is fresh and provided an alternative reasonable hypothesis that Mr Danishyar was the second shooter, sufficient to cause the jury to have a reasonable doubt about Mr Munshizada’s guilt.

5. [78]

   As noted above, the significance of the “Ready2Rock” handle was that on the Crown case it was used to communicate with Mr Davey on the night of 22 March, to bring him out of his home on the pretext of engaging in a drug supply transaction on the street, and again on the night of the murder. The Crown case was that the first such event on 22 March was a rehearsal for the murder the following week. On the Crown case, the white Audi was used at the first meeting and was referred to in a message confirming the meeting on the night of the murder.

6. [79]

   Mr Munshizada submitted that after his trial, as a result of information provided, that Mr Danishyar was the user of the “Ready2Rock” handle, his solicitors made a request of the Office of the Director of Public Prosecutions in response to which they were advised that the brief of evidence against Mr Danishyar “substantially reflects the brief of evidence which was available at the time of Mr Munshizada’s trial” with the addition of the call charge records for Mr Danishyar. A copy of the Crown Case Statement for Mr Danishyar was also provided, which indicated that it was the Crown case that Mr Danishyar was the operator at all relevant times of the “Ready2Rock” Blackberry device. Mr Munshizada relies on the call charge records for the “Ready2Rock” device and those for a mobile phone used by Mr Danishyar to support the assertion that it was Mr Danishyar who was using the device and sent the messages to Mr Davey.

7. [80]

   An affidavit of Michael Jones, solicitor for the ODPP, attached a brief service receipt which showed that Mr Danishyar’s subscriber document, call charge and reverse call charge records for his relevant phone number were served on Mr Munshizada’s then solicitors before his trial on 31 October 2018.

8. [81]

   The Crown stated there was evidence in Mr Munshizada’s trial about the “Ready2Rock” handle and the cell towers to which it was connecting.

9. [82]

   In Mr Munshizada’s trial, the Crown did not definitively identify the user of the “Ready2Rock” handle as Mr Danishyar, although the Crown case strongly hinted at it. The Crown case was left to the jury on the basis that the “Ready2Rock” handle was used to bring Mr Davey out of his home on 22 March and 29 March and was used by “a person associated with [Mr Munshizada] and Mr Sultani”. The Crown relied on the evidence that the “Ready2Rock” device connected to a phone tower at Kingswood South at midnight and then returned to Olympic Park at the time Mr Danishyar went back to the apartment and was let in by Mr Munshizada just before 1AM on 23 March. The Crown also relied on the evidence of Mr Davey’s partner as to the clothes worn by a person who met Mr Davey on the night of 22 March as being consistent with the clothing worn by Mr Danishyar when he returned to Mr Munshizada’s unit in the morning of 23 March.

10. [83]

    The Crown submitted that although the evidence of Mr Danishyar’s call charge records was not fresh, it having been served upon Mr Munshizada’s solicitors before his trial, establishing that Mr Danishyar was the user of the “Ready2Rock” handle would not have assisted Mr Munshizada at his trial. The Crown submitted it was never the Crown case that Mr Munshizada or Mr Sultani was the user of that handle. The Crown relied on the CCTV footage which showed Mr Danishyar in the lift in Mr Munshizada’s apartment building, with a Blackberry phone in his hand, which he showed to Mr Munshizada. The Crown relied on the evidence that Mr Munshizada, Mr Sultani and Mr Danishyar were in the apartment at the time the “Ready2Rock” handle sent Mr Davey a message at 9:51PM, stating he would be about an hour, and that they all later left the apartment together.

11. [84]

    We are not persuaded that the evidence is fresh, as the “Ready2Rock” device records were in evidence in the trial and Mr Danishyar’s mobile phone records had been served on Mr Munshizada’s solicitors before the trial. It is difficult to see how it would have assisted Mr Munshizada to have Mr Danishyar definitively identified as the user of the “Ready2Rock” handle, given the evidence of Mr Danishyar’s presence with him and Mr Sultani on the night of 29 March and the evidence giving rise to a strong inference that he was associated with the use of that device on the night of 22 March. Mr Danishyar’s connection with the “Ready2Rock” handle does not logically provide an alternative reasonable hypothesis that he was the second shooter with Mr Sultani, particularly when regard is had to the evidence that Mr Munshizada and Mr Sultani were the two people shooting firearms at Mangrove Mountain.

12. [85]

    The fact that Mr Danishyar’s mobile phone records were not adduced in Mr Munshizada’s trial did not give rise to a miscarriage of justice: the evidence does not give rise to a reasonable doubt about his guilt of the offence charged.

13. [86]

    The second portion of fresh evidence is said by Mr Munshizada to relate to a fourth vehicle in convoy with the Audi, Mazda and HiAce vehicles on the night of 29 March. It was the Crown case that the Mazda left the convoy and went to a business operated by an associate of Mr Sultani and that the Audi travelled to the scene of the murder.

14. [87]

    In an affidavit by a solicitor then representing Mr Munshizada, in an application made on 31 January 2020 to vacate his trial which was then due to commence, the solicitor said, in reference to the Crown case of three vehicles travelling to St Marys in convoy and being detected on cameras on the M4, “I am further instructed that a fourth vehicle was seen in the images but was not identified by police.”

15. [88]

    After the trial, in July 2022, Mr Munshizada’s solicitors requested information from the ODPP about the fourth vehicle, a silver Subaru. The solicitor’s letter indicated his belief concerning who was the registered owner of the Subaru, and that he was an associate of another Crown witness, who was identified. The material received, annexed to Mr Munshizada’s now solicitor’s recent affidavit, included number plate recognition records for the M4 at the relevant time. The log included the Toyota HiAce, the Audi and the Mazda van. The log included a reference to the Subaru van. A registration record showed that on the night in question, the Subaru van was registered to a person named “Muller.” The identified Crown witness was asked by a detective if he knew a person named Brenden Muller. The detective said the witness told him he knew that person as “a long time member of his crew, and that he won’t know anything about Sultani”.

16. [89]

    Mr Munshizada submitted that the identified Crown witness had been a member of “Sultani’s group” and asserts a close proximity between the Subaru van and the other three vehicles and a connection between the van and a member of Sultani’s group. Mr Munshizada submitted that it can be inferred that the convoy consisted of four vehicles rather than three and there was no evidence about the movement of the fourth vehicle, its occupants or the possible involvement of the Crown witness. Mr Munshizada submitted that had that evidence been available, it would likely have caused the jury to have entertained a reasonable doubt about his guilt.

17. [90]

    The Crown submitted that there is doubt about whether the evidence is fresh: the images, referred to in Mr Munshizada’s solicitor’s affidavit showing the fourth vehicle, were tendered in Mr Munshizada’s trial. The Crown submitted that the images do not show a fourth vehicle.

18. [91]

    The Crown submitted that the evidence is highly speculative, relies upon several layers of assumptions and was not capable of affecting the outcome of the trial. The Crown submitted that the fourth vehicle was on the M4 about an hour before the murder, that the Subaru van was not seen in any of the footage with the other vehicles at relevant places in the Crown case, that there was no evidence that it was owned by Brenden Muller, as only the surname appeared in the records, and that even if the car did belong to him, it would only be relevant if the identified Crown witness was driving the car on 29 March 2016, which is not established.

19. [92]

    Since Mr Munshizada’s solicitor referred to the fourth vehicle in his affidavit seeking to vacate the trial, before it commenced, it is doubtful whether the evidence is fresh. However, the inferences sought to be raised by Mr Munshizada, in reliance on the presence of a Subaru van on the freeway at the same time as the three vehicles featured in the Crown case, are extremely remote and do not give rise to any doubt about Mr Munshizada’s guilt.

20. [93]

    The next portion of fresh evidence was said to be evidence which undermines the credibility of RS670 by demonstrating that he had “twice wrongly implicated [Mr Munshizada] in serious offending”.

21. [94]

    RS670 was the witness who gave evidence of Mr Munshizada and Mr Sultani shooting at Mangrove Mountain. Mr Munshizada did not dispute that he was present at Mangrove Mountain, but did dispute that his presence and activity there had any connection with the murder.

22. [95]

    Mr Munshizada submitted that his trial counsel’s concession that he was present at Mangrove Mountain was made in the context of the unavailability of evidence which demonstrated that the witness RS670 had been untruthful to police in two separate statements and each time had falsely implicated him in other offending. It was submitted on behalf of Mr Munshizada that if the jury had been aware of the evidence undermining RS670’s credibility, it is most unlikely they would have accepted that Mr Munshizada was present at Mangrove Mountain, fundamentally undermining the Crown case that he shot Mr Davey or was present when that occurred.

23. [96]

    Mr Munshizada accepted that Fagan J warned the jury that RS670’s evidence might be unreliable, particularly because he received a significant discount on his sentence for a commercial supply of methylamphetamine for his assistance to the authorities. Fagan J warned the jury to consider:

24. [97]

    The evidence which Mr Munshizada relied on to base the assertion that RS670 had twice wrongly implicated him in serious offending was the following.

25. [98]

    Mr Munshizada had been charged with an offence of conspiracy to murder. The allegation was that Mr Sultani and other members of the group had travelled to the Central Coast, intending that a particular person would be killed. In a statement dated 28 October 2016, RS670 said that Mr Sultani had asked to meet him, so he drove to Wamberal Surf Club. He referred to “the boys” being in a car and specifically nominated Mr Sultani being one of them. He said he waited for some time before Mr Sultani told him by Blackberry that nothing had happened, that the victim had called police and he should go. In a subsequent statement dated 10 December 2016, he spoke further about Mr Sultani and others coming “up the coast” to do a “job”. He said it was dark so he did not get a good look at who was in the car. He thought there were four in the car. Mr Sultani was in the passenger seat. He said he could not remember who was driving but said “I think that [Mr Munshizada and two others] were in the car. It’s hard to remember and as I said, they only stopped briefly and no one got out of the car.”

26. [99]

    Mr Munshizada submitted that in the second statement, RS670 had implicated him. He asserted that call charge records showed that on the relevant evening he was in Ryde. Mr Munshizada relies on correspondence and phone records annexed to his solicitor’s affidavit which he asserts shows that on a date, specified by police as 17 August 2015, RS670’s phone was registering at a phone cell tower at Gorokan, which was inconsistent with him being at Wamberal. Therefore, Mr Munshizada submits that RS670 was untruthful about him and Mr Munshizada being present at Wamberal on that occasion. He says the ODPP did not proceed with the prosecution.

27. [100]

    Mr Munshizada next says that he was charged with assaulting another person with intent to cause grievous bodily harm and in respect of that allegation RS670 said in his first statement he went to a food business in Western Sydney which he thought Mr Sultani owned. He sat outside with some people he named, who told him that Mr Sultani and “the boys” were “out the back sorting [the named victim] out”. In the statement he said a short time later Mr Sultani, Mr Munshizada and another person came out from the shop and Mr Sultani told him he had broken the man’s arm and jaw and Mr Munshizada kicked him in the face and broke his jaw. Mr Munshizada said that telephone records established RS670 was on the Central Coast on the day of the assault, the Crown decided to not call him in his trial of that offence, and Mr Munshizada was acquitted.

28. [101]

    Mr Munshizada therefore contended that RS670 has a tendency falsely to implicate him in serious offending and that was evidence which could substantially affect the assessment of his credibility.

29. [102]

    The Crown submitted that the two statements relied on by Mr Munshizada were served on him before trial and were referred to in the course of the cross-examination of RS670. The transcript of that cross-examination bears out that both statements were shown to the witness at the time and he was asked about parts of them, although not the parts now sought to be relied on.

30. [103]

    The Crown submitted that the statements do not support the proposition that RS670 had a tendency falsely to implicate Mr Munshizada in serious offending because both statements were expressed in highly qualified terms. Further, the Crown submitted that RS670 did not specify the date he attended the Wamberal Surf Club, which was the subject of the telephone enquiry. The Crown submitted that other evidence in the Crown case in relation to the first matter pointed to the relevant events taking place on the previous day and phone records were not inconsistent with RS670 then being at the surf club. The Crown submitted in respect of the second matter that the statement was in qualified terms and did not directly implicate Mr Munshizada but instead only relayed information given to him by Mr Sultani.

31. [104]

    The Crown relied on part of the closing address of Mr Munshizada’s trial counsel as follows:

32. [105]

    Mr Munshizada now submits that had the evidence referred to been available to his counsel, he would have had the “forensic tools to undermine substantially the witness’s credibility”.

33. [106]

    It seems clear that counsel did have those two statements, as he cross-examined RS670 about parts of them, although not the parts highlighted in these submissions. Therefore, the evidence is clearly not fresh. Mr Munshizada’s presence at Mangrove Mountain was a significant circumstance in the Crown case. However, it has not been demonstrated that the lack of cross-examination of RS670 on the identified parts of his two statements has caused a miscarriage of justice. Adducing such prejudicial allegations against Mr Munshizada in his trial for the purpose of attempting to show that RS670 had been untruthful when he made those allegations would itself have involved risks for him in his trial. We are not persuaded that the evidence would have succeeded in damaging the credibility of the witness so as to give rise to a doubt about Mr Munshizada’s guilt of the offence charged.

34. [107]

    Ground 4 has not been made out.

Ground 1 - The jury’s verdict was unreasonable within the meaning of s. 6(1) Criminal Appeal Act.

1. [108]

   The applicable principles when considering Mr Munshizada’s complaint that the jury’s verdict was unreasonable were stated by the High Court in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 as follows:

2. [109]

   The circumstances on which the Crown relied have been summarised above. They included the recorded conversation which we have already concluded was admissible and properly admitted. The central submission on behalf of Mr Munshizada was that the circumstances were inadequate to prove beyond reasonable doubt his presence at the scene of the murder in one of the two alternative ways put by the Crown.

3. [110]

   Counsel for Mr Munshizada accepted that the Crown’s circumstantial case could not be approached in a piecemeal fashion, in accordance with The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 (“Hillier”), but submitted that without consideration of individual circumstances, the assemblage of circumstances could not be appreciated.

4. [111]

   Counsel submitted that Mr Munshizada being a member of the Burwood Chapter of the Rebels, a close friend of Mr Sultani and living with Mr Sultani in the Homebush unit could not establish his presence at the shooting.

5. [112]

   Counsel submitted that even on the basis that he was present at Mangrove Mountain and fired one or more firearms, it could not be properly described as “target practice” and that RS670’s evidence did not support the contention that Mr Munshizada fired a .25 calibre pistol while there. It was submitted “Even taking the prosecution case at its highest, [Mr Munshizada] may have attended the Mangrove Mountain site and discharged firearms. However, he was not there for the purpose of target practice, and he was most certainly not there for the purpose of conducting target practice with a .25 calibre Colt pistol”. He submitted that there was no basis to contend that Mr Munshizada went to Mangrove Mountain for the purpose of carrying out target practice with a firearm which was to be used by him in the shooting of Mr Davey. It was submitted that the evidence did not suggest Mr Munshizada otherwise had possession of a .25 calibre semiautomatic pistol. Counsel submitted the ballistics evidence did not prove the date on which the event occurred at Mangrove Mountain or that the 25mm Colt pistol was used by Mr Munshizada or anyone.

6. [113]

   Counsel submitted that the communications with Mr Davey by the “Ready2Rock” handle may have been part of a case against Mr Sultani, but did not contribute anything to the question of whether Mr Munshizada was present when the murder took place.

7. [114]

   Counsel submitted that changes of clothes by Mr Munshizada and others who the Crown asserted were involved in acts related to the shooting, could carry little weight in proof of the charged offence. Counsel submitted that the Crown’s assertion that Mr Munshizada and Mr Sultani left their apartment late on 29 March carrying similar rain jackets could not provide a basis for the jury to conclude that they were carrying items which they intended to use to disguise themselves from possible witnesses at the intended scene of the shooting.

8. [115]

   Counsel submitted that there was no evidence of eyewitnesses placing Mr Munshizada at the scene of the shooting, nor any forensic evidence linking him to it. There was also no electronic monitoring data or CCTV evidence capable of placing him in the vicinity of the shooting. In respect of the “purported admission”, counsel emphasised that the recording was made on 12 November, about eight months after the shooting, not in its immediate aftermath.

9. [116]

   Counsel described each circumstance relied on by the Crown as “intractably neutral” or, worse, incapable of proving Mr Munshizada’s presence at the shooting beyond reasonable doubt, including his recorded statements. Counsel accordingly submitted that the jury’s verdict was unreasonable.

10. [117]

    Although counsel disavowed taking an atomised approach to the circumstances in the Crown case, a consideration of his submissions in this Court makes it clear that is precisely what he did. The arguably intractable neutrality of individual circumstances does not necessarily mean, and does not in this case mean, that all of the circumstances considered as a whole have the same quality.

11. [118]

    In Hillier in the joint reasons of Gummow, Hayne, Crennan JJ, with whom Gleeson CJ and Callinan J agreed, the following was said:

12. [119]

    Mr Munshizada’s submissions focussed on facts in isolation. Such an approach deprives them of their meaning in the context of the evidence as a whole.

13. [120]

    Considering the facts the subject of counsel’s submissions with the other evidence in the trial, of which this Court has made its own independent assessment, it was open to the jury to find the following facts:

14. [121]

    It was open to the jury to find that the movements of Mr Munshizada, Mr Sultani and others from and to their unit on the night of 29 March 2016 were in preparation for and to organise and carry out the shooting. This is particularly so when considered with Mr Munshizada and Mr Sultani wearing dark clothing and carrying dark jackets when they left the unit complex, the time at which they left when dressed that way and the time they returned compared with the time Mr Davey was shot. It is also important to note the relationship between Mr Munshizada and Mr Sultani, their attendance at the Mangrove Mountain shooting event, and Mr Munshizada’s statements in the recorded conversation on 12 November 2016.

15. [122]

    It was in our opinion clearly open to the jury when considering those facts and circumstances together to find Mr Munshizada guilty beyond reasonable doubt of the murder of Michael Davey.

16. [123]

    This Court, having made its own independent assessment of the whole of the evidence in the Crown case, including Mr Munshizada’s statements which we could discern in the 12 November 2016 recording, is satisfied that upon the whole of that evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Munshizada was guilty of the murder of Mr Davey.

17. [124]

    Ground 1 has not been made out.

18. [125]

    In the interests of finality, we would extend time for the filing of Mr Munshizada’s Notice of Appeal.

Orders

1. [126]

   The orders of the Court are:

   1. (1)

      Extend the time for filing the Notice of Appeal to 6 August 2024.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.