AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 8 August 2023

R v Danishyar

[2023] NSWSC 922

Homicide
CRIME EVIDENCE MURDER JOINT CRIMINAL ENTERPRISE ACCESSORY BEFORE THE FACT PUBLIC INTEREST IMMUNITY

Citation: R v Danishyar [2023] NSWSC 922
Court: Supreme Court of New South Wales
Date: 8 August 2023
Judge: N Adams J

Background

The accused faces a charge of murder arising from the shooting death of Michael Davey at Kingswood on 30 March 2016. The Crown alleges the killing was a contract murder carried out by two co-accused, and that the accused participated as part of a joint criminal enterprise, although he is not alleged to have been one of the shooters. The accused was committed for trial to the Supreme Court in December 2021 and entered a plea of not guilty in February 2022, with trial listed for 28 August 2023.

The NSW Crime Commission (NSWCC) had conducted compelled examinations of witnesses in connection with the murder across five hearing days between June 2017 and June 2019. In January 2023, the Director of Public Prosecutions (DPP) determined to apply to the Supreme Court under s 45 of the Crime Commission Act 2012 (NSW) to access that testimony for use in the murder trial.

The application proceeded in two stages: first, the DPP sought a certificate from the court directing the NSWCC to produce the evidence to the court under s 45(4); then, after examining the material, the court was asked under s 45(5) to determine whether the interests of justice required the evidence to be disclosed to both the prosecution and the accused and his legal representatives.

  • Whether the court should issue a certificate under s 45(4) of the Crime Commission Act 2012 (NSW) directing the NSWCC to produce compelled examination evidence to the court.
  • Whether, after examining that evidence, the court was satisfied under s 45(5) that the interests of justice required it to be disclosed to the prosecution and the defence.
  • What principles govern the "interests of justice" assessment in applications of this kind, including the weight to be given to the privacy interests of examinees and the non-publication regime under which they gave evidence.

Decision

Adams J set out the relevant framework at length. The NSWCC holds unique investigative powers: it can compel witnesses to answer questions, abrogating the right to silence, and prosecute witnesses for misleading answers. In exchange, compelled testimony is ordinarily inadmissible against the witness, and non-publication orders typically protect it. Section 45 creates a carefully qualified exception, allowing a court to override those protections only where the interests of justice so require.

Her Honour followed the approach taken in R v Hawat (No 1) and R v Quami (No 11), treating the default position as one of non-disclosure. The s 45(4) certificate stage is a threshold question of whether disclosure "may be desirable" in the interests of justice. The s 45(5) stage requires the court, having examined the actual evidence, to be positively satisfied that the interests of justice require disclosure. Factors relevant to that balance include the materiality of the evidence to the trial, the legitimate privacy interests of examinees who gave evidence under compulsion, the risk of prejudice to other investigations, and whether the evidence could lead to any useful line of inquiry.

On examining the compelled testimony of five witnesses, Adams J concluded that none of it would materially add to, contradict, or cast doubt upon the Crown case. Nor did it suggest any line of inquiry or theory of events that could assist either the prosecution or the defence at trial. Because the evidence did not pass even the initial threshold of having a material bearing on the proceedings, it was unnecessary to proceed to weigh the competing interests of justice considerations more broadly.

Her Honour refused the application and recorded brief confidential reasons, including a description of the content of the compelled testimony, in a separate unpublished annexure. That annexure was ordered to be sealed and kept with the file, consistent with the approach taken in Hawat and Quami.

Orders Made

  • The Crown's application for material to be released under s 45(5) of the Crime Commission Act 2012 (NSW) was refused.
  • The confidential material provided under the s 45(4) certificate was ordered to be returned to the NSWCC, subject to the undertaking of its legal representatives to make it available as required by the court.
  • Any future application for access to the sealed annexure will not be considered without the NSWCC first being notified.

Key Takeaways

  • Under s 45 of the Crime Commission Act 2012 (NSW), compelled examination evidence held by the NSWCC is not released by default: the court must be positively satisfied that the interests of justice require disclosure before it can override the non-publication regime.
  • The two-stage process under ss 45(4) and 45(5) requires the court to first obtain the material on a certificate, then examine it, and only then assess whether disclosure is warranted. A finding that disclosure "may be desirable" at the first stage does not predetermine the outcome at the second.
  • Where compelled testimony has no material bearing on the trial, neither adding to, contradicting, nor casting doubt upon the Crown case, the interests of justice threshold under s 45(5) is not met and disclosure will be refused without any need to weigh broader competing considerations.
  • Examinees who give evidence under compulsion to the NSWCC do so with an assurance that their testimony will not ordinarily be used against them or made public. That assurance forms part of the interests of justice framework the court must respect.
  • Consistent with earlier decisions, sealed confidential reasons describing the content of the compelled testimony may be prepared and held on the court file, accessible only on the order of a judge of that court or a higher court, without being disclosed to the parties.

Legislation and Cases Referenced

Legislation:
- Crime Commission Act 2012 (NSW), ss 21, 24, 25, 27, 39, 45
- Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases:
- R v Hawat (No 1) [2019] NSWSC 1583
- R v McCloskey (No 1) [2020] NSWSC 771
- R v Munshizada, Danishyar and Baines [2020] NSWSC 566
- R v Quami (No 11) [2016] NSWSC 252
- R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654