R v Munshizada; R v Danishyar; R v Baines (No 1)

1. [1]

   HIS HONOUR: On 2 March 2018 Siar Munshizada, Mirwais Danishyar and Joshua Donald Baines were arraigned on a charge that on 14 November 2016 at Earlwood in the State of New South Wales they did murder Pasquale Barbaro. All three pleaded not guilty. Their trial on that charge is now fixed to commence on 11 June 2019. The Crown seeks to present a fresh indictment charging them with an additional count that on 9 September 2016 at St Marys in the State of New South Wales they did murder Mehmet Yilmaz. The Crown wishes to proceed to trial with these two counts on the one indictment.

2. [2]

   Abuzar Sultani was arraigned on 2 March 2018 on a charge that he did murder Pasquale Barbaro and pleaded not guilty. On 11 March 2019 Sultani was re-arraigned on that charge and changed his plea to guilty. At the same time he was arraigned for the murder of Mehmet Yilmaz, to which he also pleaded guilty.

3. [3]

   Up until 12 March 2019 the Crown had intended to include on its proposed fresh indictment a charge against Munshizada and Sultani that on 30 March 2016 at Kingswood in the State of New South Wales they did murder Michael Davey. On 12 March 2019 the Crown abandoned that proposal and informed the Court of its intention to prosecute Sultani and Munshizada for the Davey murder, either in separate trials or in the one trial, on an indictment or indictments distinct from that upon which it seeks to proceed against Munshizada, Danishyar and Baines for the murders of Yilmaz and Barbaro.

4. [4]

   In anticipation of a fresh indictment being presented the three accused now before the Court filed notices of motion seeking orders that the murder charges be severed and laid upon single-count indictments. In addition, Baines sought an order that he be tried separately from Munshizada for the murder of Barbaro. In the changed circumstances of Sultani’s pleas of guilty to the Yilmaz and Barbaro murders and the Crown’s acceptance that it should prosecute the Davey murder separately from those two charges, the question now is whether the three accused should be tried together on one indictment for the Yilmaz and Barbaro counts.

5. [5]

   The Court has jurisdiction to determine that question before the proposed two-count indictment is presented. As the three accused have already pleaded not guilty to the Barbaro murder, the Court is empowered under s 130 of the Criminal Procedure Act 1986 (NSW) to determine whether their trial should proceed on that charge alone or whether the Crown should be permitted to add an additional count. The not guilty pleas entered on 2 March 2018 also engage the Court’s jurisdiction to determine whether Baines should be tried separately from Munshizada for the murder of Barbaro.

6. [6]

   The notices of motion and submissions filed on behalf of accused are expressed as if they had already been arraigned on the two-count indictment and are seeking to have it severed. But their arguments are equally applicable to the situation where they are yet to be arraigned for the murder of Yilmaz and where they oppose the Crown being permitted to join that count.

The Yilmaz murder

1. [7]

   In order to examine whether the accused should be tried for the two murders in one trial it is necessary to consider what evidence the Crown intends to lead on each. On both charges the Crown would prove that from 2013 and continuing through 2016 Sultani directed a criminal group in Sydney that was involved in buying and selling drugs and guns, receiving stolen cars and other offences on an organised basis. From about 2014 members of the group identified themselves as the Burwood Chapter of the Rebels Motorcycle Club. The three accused were associates of Sultani and were members of the group. An informant witness identified only as RS1777888 (“RS888”) was an associate of the group from 2014, continuing through 2016. He is one of the witnesses through whom the Crown would prove the group’s activities and the association between Sultani and the three accused.

2. [8]

   From February 2016 Munshizada resided with Sultani in a unit at Olympic Park, Sydney. Optical and audio surveillance devices were installed in and immediately outside this unit by police under warrant. These devices were active in September 2016. Sultani drove a black Subaru WRX. A tracking device installed in this vehicle under warrant was also active in September 2016. Baines lived in a unit at Wentworth Point, 4 km from Sultani’s Olympic Park unit.

3. [9]

   The Crown will lead evidence that for two days in late July 2016 Mehmet Yilmaz was unlawfully detained, beaten and wounded by four or five men who were attempting to force him to pay an alleged drug debt of $20,000. After his release he reported this to police and did not pay the debt. A man named Keskin, an associate of Sultani, claimed to have acquired the debt. On the morning of 9 September 2016 Hayden Chandab, an associate of Yilmaz’ brother, requested that Yilmaz meet him that evening at a house on the corner of Brisbane and Sydney Streets, St Mary’s. Yilmaz drove to the address and arrived at about 18:52. He parked his car outside the house, in Brisbane Street, and went inside.

4. [10]

   Earlier in the afternoon at about 15:40 Sultani, Munshizada and Baines were in the Olympic Park unit with two other men. Conversation between them recorded through the surveillance device is alleged by the Crown to include brief references to one or more guns and a statement by Munshizada, “I’m driver”. All five men left the unit at 15:44, Sultani carrying a small black bag and Baines carrying a blue plastic bag (with contents) and a hard plastic case. Sultani, Munshizada and Baines travelled in the black WRX to Baines’ unit building at Wentworth Point where they drove into its carpark at 15:53.

5. [11]

   The Crown will lead evidence that a silver Holden Commodore station wagon that had been stolen between 22 and 23 August 2016 (“the Holden wagon”) was at this time parked in the carpark of Baines’ unit building. This vehicle had been fitted with false number plates manufactured by a Crown witness at Sultani’s request, conveyed through another witness. At 16:12 the Holden wagon left Baines’ unit building.

6. [12]

   RS888 will give evidence that Sultani, Munshizada and Baines arrived in the Holden wagon at his mother’s address at Frank Street, Mount Druitt that afternoon. According to RS888’s statement Danishyar had arrived there a little earlier driving a Toyota HiAce van. This vehicle had been stolen on 25 February 2016. It was also fitted with false numberplates, manufactured by the same Crown witness, again at the request of Sultani. RS888 will say that Sultani received a number of messages on his Blackberry while he and the three accused were waiting with RS888 at Frank Street late in the afternoon of 9 September 2016. A few minutes before 19:00 Sultani said, “He’s at the address”. They all then entered the Holden wagon, Munshizada driving, RS888 in the front passenger seat and Sultani, Danishyar and Baines from left to right across the back seat. As they got into the car RS888 saw that Sultani had a semiautomatic handgun and a .32 revolver. He passed the revolver to Danishyar. They drove to Brisbane Street (which runs east-west), near the intersection of Sydney Street (which runs north-south).

7. [13]

   The vehicle in which Yilmaz had arrived at this location was parked on the south side of Brisbane Street, facing west, a few car lengths back to the east of the intersection. Evidence of bystanders would enable a jury to conclude that the Holden wagon drove past Yilmaz’ parked vehicle heading west, then at 19:02 returned to a stationary position on the north side of Brisbane Street, opposite and to the east of Yilmaz’ vehicle. The Holden wagon shortly afterwards made a U-turn and stopped on the south side of Brisbane Street facing west, some distance behind Yilmaz’ vehicle.

8. [14]

   RS888 would give evidence that when Yilmaz came out onto the street from the property he had been visiting and approached his driver’s door Sultani yelled, “Go, go!”. At this Munshizada drove the Holden wagon forward at speed and stopped in the traffic lane adjacent to Yilmaz. RS888 says he saw Sultani pointing a gun out the rear passenger window, then saw him alight from the Holden wagon and follow Yilmaz around the back of his vehicle. Shots were fired. Then Sultani returned to the Holden wagon and it was driven back to Frank Street.

9. [15]

   A nearby CCTV camera captured the shooting at approximately 19:18. The footage shows a hooded figure raise himself half out through the rear passenger-side window of the Holden Commodore with left arm extended firing a handgun at Yilmaz. When the victim attempted to escape around the rear of his vehicle he fell to the ground. The hooded figure got out of the Holden wagon, approached Yilmaz who was on the ground and, with the handgun in his left hand, fired further rounds at Yilmaz’ head and body at close range. The deceased suffered wounds from seven separate gunshots, two of them to the head.

10. [16]

    The evidence of witnesses who were on the street at the time varies as to the number of people in the Holden wagon. Their opportunity for observation was limited and their evidence in this respect may be regarded by the jury as unreliable.

11. [17]

    RS888’s evidence would be that upon his return to Frank Street with Sultani and the accused, Sultani handed him the semi-automatic pistol with which Yilmaz had been killed, together with the revolver that Danishyar had held. The semi-automatic pistol was of 9mm calibre. Sultani instructed RS888 to cut the weapon up and dispose of the pieces, which was subsequently done. One piece has been recovered by police and is consistent with having been part of a complete 9mm Parabellum Tanfoglio TA90 self-loading pistol.

12. [18]

    Sultani and the three accused travelled in the Holden wagon back to Baines’ unit building where they entered the car park at 20:00. At 21:26 the black WRX left the carpark and returned to Sultani’s Olympic Park unit. All four are captured on CCTV returning to the unit at about 21:37. Sultani, Munshizada and Baines were in different clothing from what they wore when they left at about 15:44. The Crown’s evidence would support an inference that they had changed their clothing at Baines’ unit building within the preceeding hour and a half.

13. [19]

    The Crown will tender CCTV and tracking device evidence to establish that after 22:00 on the evening of 9 September 2016 Munshizada brought another associate named Makinadjian from Ryde to Wentworth Point. The Crown will seek to prove that at this time the Holden wagon was in Park Street North, about one block away from Baines’ unit building. The Crown alleges that Munshizada brought Makinadjian to this location to show him where the Holden wagon was located and to place a jerry can of fuel in it.

14. [20]

    CCTV and tracking device evidence will also show that on 10 September 2016 between 11:00 and 12:00, Munshizada drove the Holden wagon to the address in Ryde where Makinadjian lived and left it in the basement carpark there. On 14 September 2016 police seized the Holden wagon from this location and conducted forensic tests on it. Gunshot residues were found on the rear passenger side of the vehicle consistent in composition with primer residue from two fired cartridges found at the scene of Yilmaz’ murder. DNA samples from the gearshift and from the headrest of the rear seat behind the driver match to RS888. A DNA sample from a panel on the rear seat on the near side (passenger side) match to Baines. I use the expression “match to” as a shorthand for the more cautiously expressed opinions of the forensic scientist.

15. [21]

    It could not be contested that Yilmaz died as a result of a deliberate shooting carried out with intent on the part of the gunman to kill him. According to the Crown Case Statement (as revised on 11 March 2019) it is alleged Sultani fired the shots and that he did so in furtherance of a joint criminal enterprise to which each of the accused was a party. That leaves the following matters to be proved by the Crown beyond reasonable doubt in order to establish the guilt of the accused, severally:

    1. (1)

       Sultani was the gunman.

    2. (2)

       Prior to the shots being fired, the accused had an understanding or arrangement with Sultani, amounting to an agreement, that they would shoot Yilmaz with the intention of killing him.

    3. (3)

       The accused was present when the shooting was carried out by Sultani.

    4. (4)

       At the time of the accused being present at the shooting he knew it was taking place and intentionally assisted or encouraged Sultani to carry it out.

The Barbaro murder

1. [22]

   Concerning the murder of Pasquale Barbaro the Crown would prove that he visited the home of George Alex at 6 Larkhall Avenue, Earlwood from about 16:00 on 14 November 2016. He parked his Mercedes vehicle directly outside Alex’s house. The avenue runs east-west. The vehicle was parked on the north side facing west (the wrong way).

2. [23]

   At 19:42 cameras outside the Olympic Park unit and in the lift captured Sultani, Munshizada and Danishyar leaving the unit. They departed the building in the black WRX and picked up Baines from his unit building at Wentworth Point. They then drove to Ring Street, Belmore, which is approximately 5 km from Alex’s home in Earlwood. A silver Audi Q7 was parked on Ring Street. It had been stolen in May 2016 and had been in the same position on Ring Street since at latest 4 November 2016. The Audi Q7 was fitted with false registration plates that had been manufactured at the request of Sultani.

3. [24]

   When the black WRX arrived at Ring Street at about 20:10 conversation transmitted from the surveillance device fitted in the vehicle indicated that each of Sultani, Munshizada and Baines changed their clothing and then alighted from the WRX. Danishyar remained in the vehicle. Data from its tracking device would prove that over approximately the next two hours, until 22:08, Danishyar drove the WRX around suburbs to the west and north of Earlwood, within a range of about 8 km from Alex’s house.

4. [25]

   It is the Crown case that after Sultani, Munshizada and Baines had alighted from the WRX they entered the Audi Q7 and drove to Earlwood. At about 21:00 the Audi Q7 was observed by a resident of Larkhall Avenue near the intersection with Cameron Street (which runs north-south, to the west of Alex’s house). The Audi Q7 was then driven east on Larkhall Avenue, performed a U-turn and stopped on the left or south side, to the east of Barbaro’s Mercedes and facing west towards the Cameron Street intersection.

5. [26]

   At about 21:30 Barbaro came out of Alex’s house and sat in the driver’s seat of his vehicle. Within seconds the Audi Q7 drove west along Larkhall Avenue and stopped next to the Mercedes. As it stopped, shots were fired into the Mercedes apparently through the rear driver-side window of the Audi Q7. At the same time a man alighted from the front passenger seat and ran around the front of the vehicle to the footpath in front of the Mercedes, carrying a firearm in his left hand. Barbaro responded to the first shots fired from the Audi Q7 by getting out of the Mercedes and attempting to run east along the northern footpath of Larkhall Avenue. The gunman who had alighted from the Audi Q7 stood on the footpath in front of the Mercedes and fired in Barbaro’s direction as he fled, then ran after him. The Audi Q7 reversed to follow them. Barbaro collapsed on the ground a short distance to the east of his car. The gunman fired five rounds into his head and into the back of his neck as he lay face down on the ground.

6. [27]

   Barbaro died at the scene as a result of gunshot wounds from 10 separate rounds fired from two handguns. The weapons used were recovered in August 2017 in the possession of persons apparently unconnected with Sultani and the accused. They were self-loading pistols, a 9mm Beretta Model 92FS and a .45 Norinco Model 1911A1. Ballistics evidence matches these weapons to cartridge cases, projectiles and bullet casings recovered from the murder scene.

7. [28]

   The gunman returned to the Audi Q7. It was driven to Park Avenue, Concord, a distance of about 9.4 km. Park Avenue runs east-west along the south side of Goddard Park. The tracking device in the WRX showed that at the same time Danishyar drove that vehicle from Strathfield to Gipps Street, Concord, which runs along the north side of Goddard Park. At about 22:00 the Audi Q7 was set alight whilst stationary on Park Avenue, using petrol from a red container. Whilst this was occurring the tracker in the WRX showed it stationary on Gipps Street, about 100 metres away. Shortly after 22:00 the listening device in the WRX recorded Baines re-entering the vehicle, followed by Munshizada and Sultani. There was conversation between them concerning smoke and the smell of burnt hair, supporting an inference that they had just come from the burning Audi Q7.

8. [29]

   The WRX then travelled to Silverwater and subsequently to Wentworth Point, where Baines alighted in the vicinity of his unit building. At about 22:55 the WRX returned to the Olympic Park unit building and Sultani and Munshizada re-entered their unit with Danishyar.

9. [30]

   The Crown proposes to adduce evidence that Sultani was a close associate of Joe Antoun who was murdered on 16 December 2013 and that Sultani believed Barbaro was involved in that murder. It will be alleged Sultani had a motive for killing Barbaro, namely, revenge for Antoun’s death.

10. [31]

    One of the Crown’s proposed witnesses is a prison informant who has given a statement regarding conversations with Munshizada in 2018 while they were in custody in adjoining cells. He asked Munshizada how he came to be arrested for the Barbaro murder. Munshizada said:

11. [32]

    The informant’s statement continues:

12. [33]

    There could be no contest that Barbaro died as a result of a deliberate shooting carried out with intent, on the part of the gunman who alighted from the Audi Q7, to kill. According to the Crown Case Statement (dated 19 September 2018) it is alleged Sultani was the gunman and that he killed Barbaro in furtherance of a joint criminal enterprise to which each of the accused was a party.

13. [34]

    That leaves the following matters to be proved by the Crown beyond reasonable doubt in order to establish the guilt, severally, of Munshizada and Baines:

    1. (1)

       Sultani was the gunman who alighted from the Audi Q7.

    2. (2)

       Prior to the shots being fired the accused had an understanding or arrangement with Sultani, amounting to an agreement, that they would shoot Barbaro with the intention of killing him.

    3. (3)

       The accused was present when the shooting was carried out by Sultani, they knew it was taking place and they intentionally assisted or encouraged Sultani to carry it out.

14. [35]

    It is not alleged that Danishyar was present at the shooting. The Crown argues that it may nevertheless seek Danishyar’s conviction as a principal on the basis that he “participated in some other way in the furtherance of the enterprise”: see Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [47]-[49] (Bathurst CJ, Johnson and Fullerton JJ agreeing). See also R v Prochilo [2003] NSWCCA 265 at [59]; Sever v R [2010] NSWCCA 135 at [146] and Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37.

15. [36]

    If the Crown maintains its formulation of the case against Danishyar solely on the basis that he was a participant in a joint criminal enterprise, then the elements in issue with respect to him will be the same as for Munshizada and Baines, as set out in the preceding paragraph, except that (3) would be as follows:

16. [37]

    Should the Crown continue against Danishyar solely on the above basis, it would obviously not be able to prove element (2) (formation of an understanding or agreement as to the joint enterprise) by inference from his presence at the commission of the crime. Presumably the Crown would invite the jury to infer such an agreement from Danishyar’s other participation on the evening of the murder. The cases cited at [35] above concerned, variously, offences of breaking and entering and stealing motor vehicles (Dickson v R), supply of prohibited drugs over a period of one month (R v Prochilo) and murder resulting from multiple assaults over two days during which not all parties to the joint enterprise were present at all times (Likiardopoulos v The Queen). All of these were significantly stronger cases than the present for holding that the accused could be found to have participated in carrying out a joint enterprise despite not being present (at least not at all times) at the commission of the crime.

17. [38]

    If, instead, the Crown should advance its case against Danishyar on the basis that he was an accessory before the fact, to be indicted and tried as a principal offender pursuant to s 346 of the Crimes Act 1900 (NSW), the Crown would have to prove the following matters beyond reasonable doubt:

    1. (1)

       Sultani was the gunman who alighted from the Audi Q7.

    2. (2)

       Prior to the shots being fired, Danishyar

    3. (3)

       At the time of aiding and abetting Sultani in the murder of Barbaro (in either or both of the ways referred to at (2)(a) and (b)), Danishyar believed it was at least possible that Sultani would shoot Barbaro with the intention of killing him.

    4. (4)

       Sultani is guilty of the murder of Barbaro.

18. [39]

    Element (2)(a) reflects the fact that formation of a common design or joint criminal enterprise may constitute the encouragement or procurement necessary for the accused to be an accessory before the fact: Johns v The Queen (1980) 143 CLR 108 at 112. Alternatively or additionally, Danishyar may be shown to have been an accessory before the fact as an aider and abettor by driving Sultani and the other two to the Audi Q7 and standing by to collect them (element (2)(b) above). These facts are similar to those in Johns v The Queen where it was said that the accessory’s appreciation of the possibility of a fatal shooting would be a sufficient state of mind to support his conviction. This is reflected in element (3). Of course, in the present case the Crown will endeavour to prove that Danishyar positively expected and intended a fatal shooting. Element (4) is additional to the matters which must be proved against Munshizada and Baines because if it is sought to hold Danishyar liable only as an accessory he cannot be found guilty unless it is proved, on evidence admissible against him, that the principal offence was committed.

19. [40]

    There is little practical difference between what the Crown must prove to establish Danishyar’s guilt for the murder of Barbaro as participant in a joint criminal enterprise and what it must prove for him to be convicted as an accessory before the fact. In order to simplify these reasons I will consider Danishyar’s position according to the way the Crown has particularised his complicity to date, namely, as a principal liable for participation in a joint criminal enterprise.

Principles governing joinder in this case

1. [41]

   Section 29 of the Criminal Procedure Act prescribes threshold conditions for joinder of counts on an indictment. The condition in subs (1)(c) is presently relevant. The applicable part is as follows:

2. [42]

   From the summary given above of the Crown cases on each of the two murder charges it appears they do constitute a series of offences of a similar character. As alleged, both were premeditated, targeted, carefully planned executions each committed by one shooter (in the case of Yilmaz) or two (in the case of Barbaro), from a motor vehicle that approached the victim as he exited premises he had been visiting. The murders occurred about 9 weeks apart. In each case the gunman acted in concert with a driver and in company with one other person, or more one, also in the vehicle.

3. [43]

   The permissive effect of s 29(1)(c) is subject to a discretion in the trial judge to sever counts if that should be necessary to achieve a fair trial. The discretion is provided for in s 21(2)(a) of the Criminal Procedure Act:

4. [44]

   In a trial of these two counts of murder on one indictment there is a possibility the jury could be influenced by the evidence of commission of one murder toward a conclusion that the accused also committed the other murder. In such a case the two counts should be severed and tried separately unless either the evidence in support of each would be admissible in proof of the other or an effective direction could be given to avert impermissible prejudice: Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5.

5. [45]

   In Sutton v The Queen seven counts of various kinds of sexual assaults were alleged to have been committed against three young female complainants on three separate occasions. The applicant denied he was the perpetrator. The reliability of the complainants’ limited identification evidence was open to challenge. There was evidence of an admission made by the applicant that he had committed the assaults on one complainant. The Crown was permitted at trial to prosecute all counts on the one indictment. The jury were directed they could have regard to the evidence on each charge as admissible on every other charge in determining whether the applicant was the perpetrator. This was based upon similarities in the circumstances of each assault, in accordance with common law rules on reception of similar fact evidence. Thus it was left open to the jury to conclude, from the similarities, that all offences had been committed by the same person. If the jury were so satisfied then every item of evidence tending to suggest that that person was the applicant, irrespective of which charge the item related to, could be taken all together in deciding whether it was proved beyond reasonable doubt that the applicant was the perpetrator.

6. [46]

   The statutory provisions concerning joinder of counts considered in Sutton v The Queen were substantially the same as ss 21 and 29 of the Criminal Procedure Act (see 540). Brennan J said (at 541-543, citations omitted):

7. [47]

   All members of the Court agreed that the trial judge had been correct in holding “that the evidence implicating the applicant in the commission of one of the sets of offences charged was admissible in proof of the issues to be decided upon the other counts”. This followed from their Honours’ detailed consideration of the principles governing reception of similar fact evidence and of the similarities between each of the offences. It followed that “no valid objection could be taken” to the trial judge’s refusal to sever the counts.

Cross-admissibility in this case depends upon coincidence evidence

1. [48]

   Under the principles formulated by Brennan J in Sutton v The Queen joinder of counts will not be justified on the basis that evidence admissible on one charge is admissible on another unless the reverse is also true. The requirement is that evidence on each of the counts to be joined must be admissible in proof of each of the others.

2. [49]

   The Crown initially advanced as a sufficient justification for joinder the fact that it will lead evidence to prove all three accused were in the vehicle in which Sultani travelled to where Yilmaz was murdered and that they remained in the vehicle when the shooting took place. The Crown submitted that, in proof of the charge that the accused murdered Barbaro, that evidence would again be admissible to prove the states of mind in which they participated in a joint criminal enterprise directed to that end. The Crown would put to the jury that as a result of being present at the earlier shooting each of the three accused would be fixed with knowledge of what Sultani was about to do when they all set out in the black WRX on the evening of 14 November 2016 and when Sultani and two of the accused transferred to the stolen Audi Q7, drove to Larkhall Avenue, Earlwood and waited for Barbaro to emerge onto the street.

3. [50]

   The Crown cited Harriman v The Queen (1989) 167 CLR 590, R v Quach [2002] NSWCCA 519 and Mac v R [2014] NSWCCA 24 for the proposition that where evidence of prior involvement in an offence is probative of a state of knowledge relevant to the commission of a later offence, proof of the earlier offence may be received on a basis that does not depend upon admissibility under the rules governing tendency or coincidence evidence. In the course of argument, however, the Crown accepted that reception of evidence of the Yilmaz murder to prove, on this basis, the accused’s knowing participation in the joint criminal enterprise of killing Barbaro would be a flow of evidence from one charge to another in only one direction. The Crown accepted that there would be no reciprocal admissibility, under the principle applied in Harriman v The Queen, of evidence of the Barbaro murder in proof of the accused’s criminal liability for the Yilmaz murder.

4. [51]

   Recognising this, the Crown has now acknowledged that the only way true cross-admissibility could be shown, sufficient to justify joinder of the two counts in accordance with Sutton v The Queen, is if the Court should be satisfied that evidence of the commission by the accused of each murder is admissible on the other count as coincidence evidence under s 98 of the Evidence Act 1995 (NSW).

The Crown’s putative cross-admissible coincidence evidence

1. [52]

   In overview, the way in which the Crown seeks to adduce cross-admissible coincidence evidence is as follows. The Crown would call direct evidence from RS888 that Sultani shot Yilmaz. It would adduce evidence of the manner in which Barbaro was shot and the circumstances in which this occurred, identifying numerous similarities between the two events. The Crown would argue that having regard to the similarities it is improbable the shootings occurred coincidentally, that is, it is improbable that Barbaro was coincidentally shot by someone other than the person who shot Yilmaz (being Sultani, on the evidence of RS888).

2. [53]

   The Crown must anticipate that the jury will be warned pursuant to s 165(1)(d) of the Evidence Act that the testimony of RS888 may be unreliable. Subject to satisfying the requirements of s 98 it is open to the Crown to rely upon circumstantial evidence, independent of RS888, to prove that Sultani carried out both shootings. It would do this, subject to meeting the prerequisites of s 98, by adducing evidence of similarities in the two events to prove that the same gunman was involved on both occasions and that, having regard to the combined effect of all circumstances surrounding both shootings, Sultani was that single gunman. As noted at [21], [34] and [38] above, proof that Sultani was the gunman is necessary to establish each charge against each accused. That follows from the way the Crown has particularised its case.

3. [54]

   In relation to the Yilmaz murder, proof that Sultani fired the shots would be coupled with camera surveillance evidence of Munshizada and Baines leaving the Olympic Park unit in Sultani’s company three and a half hours before the murder and all three accused returning with him about 45 minutes after it had occurred. As mentioned earlier, the Holden wagon in which Munshizada and Baines travelled with Sultani from Baines’ unit building and in which they returned with him to the same location bore gunshot residues on the left passenger-side, matching physical evidence recovered at the crime scene and corresponding with CCTV footage of the initial firing position of the gunman. The coordination of Mushizada’s and Baines’ movements with those of the gunman, if that is shown to have been Sultani, would be strong circumstantial evidence that Munshizada and Baines were present at the commission of the crime.

4. [55]

   With respect to the Barbaro murder, proof that Sultani was the gunman would be significant in combination with surveillance evidence of the three accused departing from the Olympic Park unit and from the vicinity of Baines’ Wentworth Point residence – in Sultani’s company and in his WRX vehicle – about two hours before the shooting. The Crown would also prove that Munshizada and Baines got out of the WRX with Sultani at Ring Street, Belmore about one hour and 20 minutes before the shooting, were still with Sultani when they rejoined Danishyar in the WRX half an hour after the murder at a location only 100 m from where the Audi Q7 was burned and all three accused then returned with Sultani, in his car, to Wentworth Point and Olympic Park. Again, the co-location of Munshizada and Baines with the gunman (if the Crown can prove that was Sultani) at times shortly before and shortly after each shooting would constitute a strong circumstantial case that they were present at the commission of the crime. In the case against Danishyar, his co-location with Sultani at relevant times would strongly support an inference that his presence in the WRX close to the scene constituted participation in or aiding and abetting the crime of the gunman, Sultani.

5. [56]

   In Ceissman v R [2010] NSWCCA 50 and in R v MR [2013] NSWCCA 236 it was recognised that where each of a series of offences has been committed by a group of persons acting in concert, similarities of the actions of the group on each occasion may enable the pre-requisites of s 98 to be satisfied. In those two cases similarities in the conduct of the perpetrators across a series of five offences was held to be admissible as coincidence evidence to prove that the accused was one of the offenders on each occasion. It is conceivable that a case could arise where evidence of the conduct of each group member at the commission of each offence exhibited such similarities as to be significantly probative that all the perpetrators were the same people each time.

6. [57]

   Section 98 could not be satisfied to enable coincidence evidence to be used to such wide effect in this case. There are significantly probative similarities attributable to the conduct of the gunman, including features of the murders which the jury may infer were adopted at his direction such as the placement of the attack vehicle before the shooting and the manner of driving it rapidly up to the victim. Those similarities are discussed further below. However similarities between the two shootings that might be attributed to the driver or to any other person in the attack vehicle are not sufficiently distinctive or numerous to be directly probative that the driver or passenger(s) were the same each time. The use of coincidence evidence in this case would be to prove that Sultani was the gunman on each occasion and then to combine that conclusion, if the jury should draw it, with other evidence as described at [54] and [55] above, to infer the presence of Munshizada and Baines at the Yilmaz murder and the involvement of all three accused in the Barbaro murder.

Application of s 98 of the Evidence Act

1. [58]

   For ease of reference the relevant parts of ss 98 and 101 of the Evidence Act are reproduced:

2. [59]

   In R v Gale; R v Duckworth [2012] NSWCCA 174 (“R v Gale”) at [31] Simpson J listed the pre-requisites of s 98 in the order in which it will usually be appropriate to apply them. First, it is necessary to identify the "particular act” of a person or the "particular state of mind” of a person that the party tendering the evidence seeks to prove. The Crown’s notices to Danishyar and Baines (issued for the purposes of s 98(1)(a), see [68] below) specify that the putative coincidence evidence:

3. [60]

   The notice to Munshizada specifies the same “particular acts”, with the addition:

4. [61]

   This manner of specifying the “particular acts” sought to be proved, using a general description of each alleged offence, is not helpful where the offences are of a composite nature. It might be satisfactory to specify the “particular act” in the language of a charge if it is a simple one, for example “that the accused sexually assaulted the complainant by [act specified] on or about [date]”. In a case such as the present the statutory purpose of giving notice would more likely be served if the “particular act” sought to be proved were isolated from amongst the several elements of the offence. For example, it might be specified that the “particular act” to be proved is “that on or about [date] the accused reached an understanding with [X] that they or one of them would shoot Yilmaz with intent to kill”. Alternatively, if the “particular act” to be proved by the coincidence evidence is the participation of the accused in the joint criminal enterprise, it might be specified: “that [the accused] participated in the shooting of Yilmaz in that [specify the act constituting participation]”.

5. [62]

   From the Crown’s submissions it is apparent that the following “particular act(s)” of a person or persons are sought to be proved by the evidence of “two or more events [that] occurred”, on the basis of similarities between the shootings and the improbability of coincidence:

   1. (1)

      With relevance to the murder of Yilmaz -

   2. (2)

      With relevance to the murder of Barbaro -

6. [63]

   Following Simpson J’s analysis in R v Gale at [31], the second stage in applying s 98 is to identify the “two or more events” from which the Crown seeks to prove the “particular acts” identified at [62] above. The Crown’s s 98(1)(a) notices addressed to Danishyar and Baines particularise the “two or more events” as “the alleged murder of Mehmet Yilmaz on 9 September 2016 and the alleged murder of Pasquale Barbaro on 14 November 2016”. The notice issued to Munshizada refers also to “the alleged murder of Michael Davey on 29-30 March 2016” but as the Crown only proposes to join counts for the Yilmaz and Barbaro murders I will read this notice as limited to the events specified for the other two accused.

7. [64]

   Further particulars of the events and of the witnesses to those events purport to have been given in the notices by referring to the entire briefs of evidence that have been served concerning each offence, together with an extensive table in the nature of an index to the brief. In substance, as is apparent from the Crown’s submissions in support of joinder, the events relied upon are simply the two shootings.

8. [65]

   The third stage in the application of s 98 is the identification of similarities in the two shootings and/or in the circumstances in which they occurred. In this it is necessary to avoid circular reasoning. Therefore, any putative similarities flowing from circumstances tending to show that Sultani was the gunman or that any of the three accused was present must be excluded from consideration. As those are the matters sought to be proved “on the basis that” the similarities make mere coincidence improbable, they cannot be taken into account: see R v MR at [42].

9. [66]

   I have considered a list submitted by the Crown of similarities in the two shootings and in the circumstances in which they occurred. In taking into account some of these suggested similarities and disregarding others I have borne in mind that the identification of common features is directed to a conclusion that the two shootings were carried out by the same gunman. In addition to these similarities there is a body of circumstantial evidence relating to each murder from which it might be inferred that the single gunman was Sultani.

10. [67]

    I find the following similarities relevant and probative:

    1. (1)

       Date of occurrence: The shootings occurred approximately nine weeks apart. The proximity of the dates has a bearing upon it being “improbable that the events occurred coincidently”. This may be seen from consideration of the obverse. Two shootings with all the characteristics to be proved by the Crown (see below) would be less likely to have been committed by the same person if they occurred years apart.

    2. (2)

       Premeditated murders of targeted victims: The circumstances of the shootings respectively support an inference that each was a deliberate attack upon the selected person. The gunman on each occasion waited for the specific victim. These were not random or spontaneous attacks. They were not merely reactions to chance encounters or to proximate, causative interactions with the victims.

    3. (3)

       Ambush: In each case the attack took the form of a planned ambush of the victim as he left an address he was visiting. The fact that the gunman waited in position on each occasion would support an inference that he knew his chosen victim would be at the address and would be leaving it reasonably soon after the assailants took up position.

    4. (4)

       Gunman’s concealment of identity: Each shooting took place in darkness. As further cover against identification, the gunman who shot Yilmaz wore a full face covering hood. The gunman who shot Barbaro on the footpath wore a garment with a hood over his head and held the hood in place as he ran from the Audi Q7.

    5. (5)

       Driver and driver’s actions: At each shooting the gunman had a driver who positioned his vehicle a short distance from the victim’s car, with a direct line of sight. On both occasions the vehicle carrying the gunman was driven rapidly forward when the victim came out onto the street to his own car.

    6. (6)

       Stolen attack vehicle: The vehicle carrying the gunman in each case had been stolen, during 2016, and bore false registration plates that had been manufactured by the same person (a sign maker).

    7. (7)

       Actions of the gunman: At each shooting the gunman alighted from the vehicle that was carrying him and approached the victim to ensure that his gunshots found their mark. On each occasion multiple shots were fired into the victim’s head after he had fallen to the ground, guaranteeing that fatal wounds were inflicted.

    8. (8)

       Weapons: Yilmaz was shot with a 9mm calibre handgun. The five shots to the back of Barbaro’s head and neck were from a 9mm calibre handgun. There is a strong inference that those five shots were fired by the gunman who alighted from the front passenger seat of the Audi Q7. Barbaro could not have attempted to flee if these wounds had been caused by the rounds fired from within the Audi Q7 as it drew up.

    9. (9)

       Dominant left hand: Each of Yilmaz and Barbaro was shot by a gunman who was left-handed. This was clearly captured on CCTV of the two events.

11. [68]

    The notice required by s 98(1)(a) must be given in accordance with regulations made under the Act. Compliance may be dispensed with pursuant to s 100. Clause 6 of the Evidence Regulations 2015 (NSW) requires that a notice of coincidence evidence must state “the substance of the evidence of the occurrence of two or more events that the party giving the notice intends to adduce”. The notice is also required to provide particulars of the date, time, place and circumstances of the occurrence of the events and the names of witnesses to them. Here the Crown initially served notices on 31 October 2018 then served “updated” notices on 10 March 2019.

12. [69]

    Although the notices lacked precision, since the end of October 2018 it has been clear to each accused, at least in general terms, that the Crown would rely upon the similarities listed at [67] to support its tender of the evidence of each murder in proof that each was committed by the same offenders. A table setting out those similarities was supplied by the Crown to the accused when the coincidence notices were first served. The precise manner in which s 98 is sought to be applied has been refined in the course of argument on the question whether the counts should be joined or severed. I consider the original and amended notices, in combination, constitute reasonable notice for the purposes of s 98(1)(a). Even if they did not, in view of the clarification of the Crown’s position through submissions made on 12 and 13 March 2019 I would dispense with the requirement of any further notice under s 100(2).

13. [70]

    The statutory test of admissibility in s 98(1)(b) is whether the Court thinks the evidence of the “two or more events” (in this case the two shootings) “will, either by itself or having regard to other evidence [to be adduced by the Crown] have significant probative value”. The test was further explained in DSJ v R [2012] NSWCCA 9 at [72] (Whealy JA, with whom Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreed) as follows:

14. [71]

    It would be open to a jury to regard the similarities listed at [67] as strongly supporting the conclusion that it is improbable that the two shootings occurred coincidently. In addition to those similarities, other evidence of the two events includes direct and circumstantial evidence that Sultani was the gunman on the first occasion and circumstantial evidence that he was the gunman at Barbaro’s murder. In cases such as this, where it is sought to prove by coincidence evidence that an accused was the perpetrator of each of a series of crimes which undoubtedly occurred, it is common that if the pre-requisites for reception of coincidence evidence are met, parts of the evidence may support an inference that there was but one offender and other parts may connect the accused with one or more of the crimes. The combination of all evidence of the two or more crimes may then enable the jury to infer that the single, common offender was the accused. Sutton v The Queen is an example of this. See also R v Ellis [2003] NSWCCA 319; Ceissman v R [2010] NSWCCA 50 at [16].

15. [72]

    The Crown will adduce, inter-alia, the following evidence that Sultani was the gunman in the murder of Yilmaz:

    1. (1)

       RS888’s direct eyewitness account of Sultani’s actions.

    2. (2)

       CCTV surveillance of Sultani departing from the Olympic Park unit approximately three and a half hours before the shooting and returning to it approximately 45 minutes after the event.

    3. (3)

       When Sultani drove from Olympic Park at about 16:12 and again when he returned at about 20:00 he travelled in the Holden wagon, which has been forensically linked to the shooting.

    4. (4)

       The Holden wagon used in the shooting is further linked to Sultani by its false registration plates, manufactured at Sultani’s request.

    5. (5)

       The boots worn by the gunman (captured on CCTV at the scene) match the appearance of those worn by Sultani when he left the Olympic Park unit (on CCTV from the lift). A pair of boots of this type was found upon execution of a search warrant at the unit on 29 November 2016.

    6. (6)

       Sultani is left-handed.

16. [73]

    Circumstantial evidence connecting Sultani to the Barbaro murder will include the following:

    1. (1)

       Sultani’s departure from the Olympic Park unit approximately one hour and 45 minutes before the shooting and his return to it approximately 45 minutes after the event.

    2. (2)

       The attack vehicle was the stolen Audi Q7 bearing false numberplates that had been made at Sultani’s request.

    3. (3)

       The Audi Q7 had been parked on Ring Street, Bellmore from 4 to 14 November 2016 and Sultani’s WRX was driven to that location about one hour and 20 minutes before the shooting.

    4. (4)

       Audio recordings from the listening device in the WRX, at the time of it arriving near the Audi Q7 on Ring Street and again at the time of the Audi Q7 being burned on Park Avenue, Concord, support an inference that Sultani was in the Audi Q7 between those times, being the interval in which Barbaro was murdered.

    5. (5)

       Sultani had a motive for killing Barbaro, namely, revenge for the murder of Sultani’s associate Joe Antoun.

    6. (6)

       Sultani is left-handed.

17. [74]

    Taking together all evidence of the two shootings, including the similarities from which it may be inferred both were committed by the same gunman combined with the circumstances implicating Sultani in each shooting respectively, this body of evidence has “significant probative value” to establish that Sultani shot both victims. Subject to whether adducing evidence of the two murders as coincidence evidence would have an outweighing prejudicial effect (see the discussion of s 101 under the next subheading), I consider the Crown has shown that evidence of the two murders is cross-admissible to establish the first of the facts that it seeks to prove on each count (see [62(1)(a)] and [62(2)(a)], above).

18. [75]

    In relation to the Yilmaz murder, the evidence of the two shootings, including the similarities between them and the collective circumstantial evidence that Sultani was the gunman common to both, is further to be considered in conjunction with the evidence of Munshizada’s and Baines’ co-location and common movements with Sultani on the day of the murder: see [54] above. When so considered, the evidence has “significant probative value” (in the sense elaborated at [70] above) to establish that Munshizada and Baines were present at the shooting. It could be regarded by the jury as “of importance or of consequence” at least in that they may consider it not reasonably possible that Sultani would set out from Olympic Park to perpetrate a murder taking along persons who were not to be involved.

19. [76]

    The evidence of the two shootings used in the way referred to in the preceding paragraph would not appear to be open with respect to Danishyar. It is not the Crown case that he set off from Olympic Park in company of Sultani and the other two. The only evidence of when and how Danishyar arrived at Frank Street is that which would be given by RS888. It is only that witness’ direct evidence that would establish Danishyar’s presence in the Holden wagon at the shooting. Subject to the discussion of s 101 under the next subheading, the Crown has shown that evidence of the two murders is cross-admissible to prove in part only the further facts for which it relies upon coincidence reasoning on the Yilmaz count (see [62(1)(b)]).

20. [77]

    Similarly in relation to the Barbaro murder, the capacity of the evidence of the two shootings to prove that Sultani was the gunman is to be considered together with the evidence that all three accused were in close location with Sultani and undertook common movements with him at times closely proximate to the murder: see [55] above. When regard is had to this additional evidence of locations and movements, the evidence of the two shootings taken together has “significant probative value” to establish not only that Sultani fired the fatal rounds at Barbaro but also that Munshizada and Baines were present with him and that Danishyar’s driving of the WRX while the murder was carried out was either a participation in or an aiding and abetting of that crime. Therefore, subject to the discussion of s 101 under the next subheading, the Crown has shown that evidence of the two murders is cross-admissible to prove the further facts for which it relies upon this coincidence reasoning in relation to the Barbaro murder count (see [62(2)(b) and (c)], above).

21. [78]

    The accused have submitted that the potential prejudicial effect of the Crown adducing evidence of both murders in one trial, for the purposes and with the probative effect considered above, is that the jury might be impermissibly influenced to convict on either count as a result of hearing evidence of the other. Inevitably there is some potential for prejudicial effect but I consider that it is significantly outweighed by the probative value. On the analysis and for the reasons given above I assess the probative value of the combined evidence on both counts as very high with respect to the facts that are capable of being supported by coincidence reasoning. Further, I consider it reasonable and realistic to expect that the jury would follow a direction by which the potential for prejudice would be neutralised.

A direction to avert prejudicial effect

1. [79]

   If the jury should be satisfied beyond reasonable doubt that Sultani was the gunman on both occasions, the issue for each of the accused on each count will be whether the Crown has proved that he was present (or, in the case against Danishyar for the murder of Barbaro, that he was standing by in the WRX). Should the jury be satisfied of the presence of any accused at the commission of either of the murders (and for Danishyar, his presence in the WRX), the elements of preconcert and of participation would largely be matters of inference from those primary facts.

2. [80]

   Apart from the direct evidence of RS888 concerning the shooting of Yilmaz, for each murder there is no direct evidence of who may have been the driver or of who else may have been in the attack vehicle. If the jury should accept the evidence of RS888 they would be satisfied all three accused were present in the Holden wagon. It should be quite apparent to the jury that this could not provide any support for a conclusion that the same people were in the Audi Q7 when Barbaro was shot or vice versa. That would be self-evident from the Crown’s own case, on which, for example, it is not even contended that Danishyar was in the Audi Q7 for the second shooting. This difference in the facts of the two murders is supported by listening device, tracking and surveillance evidence which shows Danishyar was in the WRX, not the Audi Q7, at the time Barbaro was killed. The contrast in the Crown’s case on Danishyar’s role in the two shootings, respectively, would provide concrete reinforcement to the jury of the obvious proposition that the presence of one or more of the three accused at one shooting by Sultani cannot be used to conclude whether the same accused was or were present at the other.

3. [81]

   I do not consider that the jury would have difficulty understanding and giving effect to a direction that in their consideration of the case against each accused on each count, the question whether the Crown has proved beyond reasonable doubt that the accused was present at the commission of the crime must be answered solely on the evidence relevant to that event on that date. In relation to the case against Munshizada for the murder of Yilmaz, for example, the relevant evidence will include RS888’s account and the circumstances of Munshizada’s co-location and common movements with Sultani as described at [54]. In the case against him for the murder of Barbaro the evidence will comprise a discrete and readily distinguishable body of evidence concerning his movements in conjunction with Sultani on 14 November 2016 (as described at [55] above).

4. [82]

   The Crown is not contending that the manner in which the attack vehicle was driven on each occasion was so similar as to indicate a common driver. Also, the conduct of the passenger(s) in the attack vehicle was different on each occasion, being passive at the Yilmaz murder but firing from the rear driver-side window when Barbaro was attacked. The proposed direction to the jury would include reference to those matters, to emphasise that evidence of an accused having been in the attack vehicle on 9 September 2016 could not logically be used and must not be used in evaluating the separate evidence as to whether that accused was present on 14 November 2016 – and vice versa. It would be necessary also to direct that the evidence of involvement of the accused on 14 November 2016 could not be treated as supporting the veracity of RS888. That proposition follows from the above but, again for emphasis, it would usefully be made explicit.

5. [83]

   It has been noted that the case against Danishyar on the Yilmaz murder is different from that against Munshizada and Baines in that Danishyar did not depart from the Olympic Park unit in company with Sultani and instead is alleged to have travelled independently to Frank Street, Mount Druitt and to have joined the Holden wagon there. The case that he was present at the Yilmaz murder depends upon the evidence of RS888. I do not consider that this gives rise to inevitable prejudice if the two counts are tried together. If the Crown case is led in accordance with the brief that has been tendered on the joinder application, it will be obvious to the jury (and in any case they will be told) that only RS888’s evidence places Danishyar in the Holden wagon at the shooting. Directions to the effect earlier referred to – about not treating evidence of Danishyar’s role in the Barbaro shooting as confirmatory of RS888’s evidence or otherwise proving that he took part in the Yilmaz murder – can be expected to be understood and adhered to by the jury.

6. [84]

   Taking into account the cross-admissibility of evidence between the two counts, the fact that a significant aspect of the Crown’s proof that Sultani was the gunman – an important integer in its case – is the coincidence reasoning from the combined evidence of both murders and that prejudice can be averted by an emphatic direction, I am of the view that both charges should be tried on the one indictment.

Application of Baines to be tried separately from Munshizada

1. [85]

   Baines’ application for a trial separate from that of Munshizada for the murder of Barbaro is advanced on the basis that the evidence of Munshizada’s admissions to a prison informant (summarised at [31]-[32] above) is admissible against Munshizada only and not against himself. Baines contends that the alleged admissions implicate him as having been present in the Audi Q7 when Barbaro was shot. Evidence of statements by Munshizada to that effect are hearsay as against Baines and could not be given in a trial of him alone on this count.

2. [86]

   It is sufficient to refer to a small number of authorities to identify the principles that must govern the discretionary decision whether these two accused should be tried together or separately. In Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30 the relevant considerations were expressed in the following terms at 88-89 (Toohey J, Mason CJ and McHugh J agreeing) (citations omitted):

3. [87]

   In that case, in a joint trial of Webb and Hay for murder, the Crown adduced three records of interview with Webb in which he asserted that his co-accused, Hay, had engaged in a violent and sadistic attack on the deceased. The trial judge warned the jury that this evidence was not admissible against Hay. Toohey J said (at 89):

4. [88]

   In R v Middis (unreported, NSW Supreme Court, 27 March 1991) Hunt J said that:

5. [89]

   Hunt J expanded upon the necessity for the applicant to identify positive injustice, as follows:

6. [90]

   In Pham v R [2004] NSWCCA 190 Adams J (with whom Spigelman CJ agreed) observed that when Hunt J referred in item (3) to prejudicial material making the Crown case “immeasurably stronger” against the applicant for a separate trial, his Honour must have meant significantly, although not quantifiably, stronger. Adams J also doubted that weakness of the case against the applicant relative to that against the co-accused (referred to by Hunt J at items (1) and (3)) could be a relevant consideration. In Trotter v R [2016] NSWCCA 57 at [26] it was noted that Hunt J’s formulation has been frequently approved by the Court of Criminal Appeal and the qualifications stated by Adams J in Pham v R were cited with approval.

7. [91]

   There is a substantial volume of circumstantial evidence to be led against each of Munshizada and Baines in proof of the charge that they murdered Barbaro. For reasons already given the Crown is entitled to have each of them arraigned for trial on an indictment which includes both that charge and a count for the murder of Yilmaz. There is a further voluminous case to be presented against each in relation to the Yilmaz murder. If those two accused are to have separate trials almost the entirety of the Crown’s proof in relation to both homicides would have to be presented twice over. Apart from the short oral evidence of the prison informant that has prompted this separate trial application, the prosecution evidence to prove the two charges against Munshizada is the same as that upon which the Crown would seek to prove the charges against Baines. This strongly engages the “administrative factors” referred to by Toohey J as pointing to a joint trial.

8. [92]

   As Munshizada and Baines are charged on the basis that they acted with a common purpose and participated in a joint enterprise with respect to the two murders, it is particularly desirable that the issues should be determined by “the same jury at the same trial” with a view to obtaining consistent verdicts. In Merritt v R (1985) 19 A Crim R 360 the Court of Criminal Appeal said (at 364-365):

9. [93]

   With reference to item (1) in Hunt J’s formulation quoted at [87] above, it cannot be said that the evidence against Baines is significantly weaker than, or even that it is significantly different from, the evidence admissible against Munshizada. The position may be contrasted with that in R v Guldur (1986) NSWLR 12, where there were three accused and substantially the whole of the evidence against each was comprised in his record of interview. The two co-accused had admitted to police the arson with which they were all charged and said they had been paid by the appellant to set the fire. The appellant had strong grounds for challenging evidence of his own admissions to police. The Court of Criminal Appeal held that the appellant should have been accorded a separate trial.

10. [94]

    Here the admissions by Munshizada to the prison informant constitute a very minor difference between the Crown’s case against him and that against Baines. Munshizada’s admission that “we”, being himself and some unnamed person(s), drove to the Audi Q7, adds little to the Crown case against him. The Crown’s surveillance and other objective evidence is well capable of satisfying the jury, independently, that Munshizada, Sultani and Baines drove in the WRX to Ring Street where the Audi Q7 was parked.

11. [95]

    Munshizada’s statements that “we were going to get the prick” and “we … did what we had to do” are admissible against him as admissions of his knowledge and purpose. His use of the plural pronoun “we” conveys an assertion about the knowledge and purpose of some other person as well as himself. Given the Crown’s surveillance and other circumstantial proof that Munshizada was in company with Sultani and Baines, the jury would likely understand the admissions as purporting to assert that those two, also, were “going to get the prick” and doing what they “had to do”. An effective direction could in my view be given to the jury to disregard this hearsay assertion by Munshizada in so far as it purports to attribute to Baines knowledge, purpose and participation.

12. [96]

    Concerning item (2) in Hunt J’s formulation I do not consider that it would be significantly prejudicial to Baines for the jury to hear the evidence of Munshizada’s admissions, tendered only against that accused. The admissions are not explicit or detailed with respect to Baines. Indeed he is referred to only inferentially. This evidence is very different from, for example, damaging assertions by a co-accused in an extensive interview with police wherein the co-accused has sought to deflect allegations against himself by incriminating the applicant for separate trial. Webb & Hay v The Queen was a case of that type but it was considered the prejudice could be alleviated by an appropriate direction to the jury.

13. [97]

    A counter example is R v Lu & Pham [2007] NSWSC 1141. In that case both accused were charged with murder. Pham sought a separate trial in circumstances where Lu had said in a recorded police interview that Pham admitted to him, “I stabbed [the deceased]”. Price J assessed the prejudice to Pham that would arise from the tender of Lu’s interview in a joint trial as “very high” and thought that even a clear and emphatic direction that the inadmissible material must be ignored might not be sufficient to avoid a miscarriage of justice. The admissions by Munshizada that the Crown proposes to tender are a far cry from those considered by Price J. Munshizada’s admissions contained no explicit assertion against Baines. They certainly did not purport to attribute to Baines that he had acknowledged having committed the crime.

14. [98]

    With respect to item (3) in Hunt J’s formulation, this is not a situation where the jury might be impermissibly encouraged by heavily prejudicial but inadmissible material to uphold a tenuous or marginal prosecution case. It is quite the opposite – a strong Crown case, not likely to be perceived as any stronger by reason of impermissible influence from Munshizada’s admissions against himself. With the benefit of a direction to the jury that they cannot take into account against Baines the statements of Munshizada to the prison informant, I do not consider that a joint trial would give rise to a real risk of prejudice such as to cause positive injustice to Baines.

Orders

1. [99]

   For these reasons I propose to order:

   1. (1)

      Leave is granted to the Crown to present a fresh indictment against Siar Munshizada, Mirwais Danishyar and Joshua Donald Baines charging:

   2. (2)

      The trial of the three said accused is to proceed as a joint trial of all of them on both counts.

   3. (3)

      The date for commencement of the trial is confirmed as 11 June 2019.

   4. (4)

      The application of Joshua Donald Baines that he be tried on the charge that he did murder Pasquale Barbaro separately from the trial of Siar Munshizada on the same charge is dismissed.

   5. (5)

      The trial of Siar Munshizada on the charge that on 29-30 March 2016 at Kingswood in the State of New South Wales he did murder Michael Davey and the trial of Abuzar Sultani on the same charge are to commence immediately following the trial referred to in orders (1)-(3). The Crown is to notify those two accused by 11 June 2019 whether it elects to present one indictment against both of them for trial together or, if not, the order in which they are to be tried.