Citation: R v Munshizada, Danishyar and Baines [2020] NSWSC 566
Court: Supreme Court of New South Wales
Date: 14 May 2020
Judge(s): Fagan J
Background
Three accused, Joshua Baines, Mirwais Danishyar, and Siar Munshizada, were indicted for two murders alleged to have occurred in September and November 2016. Their trial was set to commence in March 2020 but was vacated because public health restrictions prevented the assembly of a jury panel.
In December 2019, an Assistant Commissioner of the NSW Crime Commission wrote to the Director of Public Prosecutions advising that the Commission held material from its investigation into the same two murders. That material had been gathered through compulsory examinations conducted in 2017, 2018, and 2019, and was subject to non-publication directions made under s 45(1) of the Crime Commission Act 2012 (NSW). The letter provided only the names of examinees, the dates of examinations, and a broad summary of the nature of the evidence.
Prompted by that letter, the Crown filed a notice of motion seeking to have the Commission's evidence released, first to the Court and then, after judicial review, to both the prosecution and the accused. The motion raised a two-stage statutory process under s 45 of the Crime Commission Act.
Legal Issues
- Whether the Court should issue certificates under s 45(4) requiring the Crime Commission to make compulsorily obtained evidence available to the Court for examination.
- Whether, after reviewing that evidence, the interests of justice required that it be made available to the accused and the prosecutor under s 45(5).
- What interpretive standard applies to the word "require" in s 45(5), and how it differs from the lower threshold in s 45(4).
Decision
Fagan J issued the s 45(4) certificates at the first hearing on 12 March 2020, finding that the threshold under that subsection is readily satisfied. The brief outline in the Commission's letter was sufficient to raise the possibility that disclosure "may be desirable in the interests of justice." The Commission then delivered approximately 1,200 pages of transcript and 280 pages of exhibits to the Court across four lever arch folders.
After reviewing that material, Fagan J concluded that the stricter test under s 45(5) was not met. That provision requires the court to be "satisfied that the interests of justice so require" before releasing evidence, a notably higher bar than the s 45(4) threshold. His Honour attributed to Parliament the intention that a non-publication order protecting a compulsorily examined witness should only be overridden where disclosure is genuinely necessary in the interests of justice.
A significant consideration informing that conclusion was the safety and good faith interests of the examinees. The Commission routinely gives examinees comprehensive assurances of confidentiality at the outset of questioning, including assurances that their evidence will not be disclosed to anyone involved in the crime under investigation. Overriding those assurances carries serious potential consequences for the personal safety of witnesses and could undermine public confidence in the Commission's examination process.
On reviewing the transcripts and exhibits, Fagan J found that the evidence given before the Commission did not, in the interests of justice, require release to the accused or the prosecutor. The third paragraph of the Crown's notice of motion was accordingly dismissed.
Orders Made
- The third paragraph of the Crown's notice of motion filed on 3 March 2020, seeking an order that the Crime Commission evidence be made available to the accused and the prosecutor, was dismissed.
Key Takeaways
- Under s 45(4) of the Crime Commission Act 2012 (NSW), the threshold for a court to issue a certificate requiring the Crime Commission to produce compulsorily obtained evidence for judicial examination is low, requiring only that disclosure "may be desirable in the interests of justice."
- A significantly higher standard applies at the s 45(5) stage: the court must be affirmatively "satisfied that the interests of justice so require" before releasing that evidence to the parties. Fagan J interpreted "require" as conveying an imperative, meaning disclosure must be genuinely necessary rather than merely desirable.
- Where examinees have been given confidentiality assurances during compulsory examination, the potential impact on their personal safety and the integrity of the Commission's processes is a material consideration when assessing whether the s 45(5) test is met.
- The Supreme Court aligned broadly with the approach in R v Quami (No 11) [2016] NSWSC 252, where Hamill J described the s 45(5) test as setting "a relatively high bar," while Fagan J noted that any practical difference between his interpretation and Hamill J's would be minimal.
- Compliance by the Crime Commission with its duty under s 15A of the Director of Public Prosecutions Act 1986 (NSW) to disclose relevant investigative material to the DPP may prompt, but does not predetermine the outcome of, a subsequent s 45 application to the court.
Legislation and Cases Referenced
Legislation:
- Crime Commission Act 2012 (NSW), s 45
- Director of Public Prosecutions Act 1986 (NSW), s 15A
Cases:
- R v Hawat (No 1) [2019] NSWSC 1583
- R v Quami (No 11) [2016] NSWSC 252