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Court of Criminal Appeal 27 October 2025

Munshizada v R

[2025] NSWCCA 172

Homicide
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION WHETHER THE VERDICT WAS UNREASONABLE WHERE THE CROWN CASE WAS CIRCUMSTANTIAL APPEAL

Citation: Munshizada v R [2025] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 27 October 2025
Judges: Harrison CJ at CL; Lonergan J; Sweeney J

Background

The applicant was a member of the Burwood Chapter of the Rebels outlaw motorcycle gang. He was convicted by jury in March 2020 of the murder of a member of the Penrith City Chapter, who was shot nine times outside his home in Kingswood in the early hours of 30 March 2016. The president of the Burwood Chapter, who had pleaded guilty to the same murder, was identified by the Crown as the other shooter.

The Crown case was entirely circumstantial. It relied on surveillance footage showing the applicant and his co-offender leaving and returning to their unit complex in dark clothing around the time of the shooting, evidence of their attendance at a shooting event involving the same firearms months earlier, and a recorded conversation captured by a surveillance device at the applicant's home in November 2016.

The applicant was sentenced to life imprisonment. He sought leave to appeal his conviction out of time, with the delay largely explained by the need to defend two further murder trials and a District Court trial before this appeal could be prepared.

  • Whether the jury's verdict was unreasonable given the circumstantial nature of the Crown case
  • Whether surveillance device recordings were admissible, or should have been excluded as irrelevant or unfairly prejudicial under s 137 of the Evidence Act 1995 (NSW)
  • Whether the trial judge's directions to the jury on the use of the surveillance recordings were adequate, particularly in accordance with the principles in Shepherd v The Queen and Burns v The Queen
  • Whether three categories of alleged fresh evidence gave rise to a miscarriage of justice

Decision

Ground 1: Unreasonable verdict. The Court of Criminal Appeal conducted its own independent assessment of the whole of the evidence. It found it was clearly open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The relevant circumstances included the timing of movements, dark clothing, the close relationship between the applicant and his co-offender, their joint attendance at a firearms event months before the murder, and the content of the November 2016 recordings. The Court emphasised that those facts must be considered together, not in isolation.

Ground 2: Admissibility of surveillance recordings. The Court listened to the recordings itself. It found the words were capable of carrying the meaning the Crown attributed to them, including statements by the applicant consistent with having been present at and participating in the shooting (for example, a description of the victim falling consistent with a photograph taken at the scene, and a reference to "we both got mad hits on him"). Ambiguity or lack of clarity in parts of the recording did not strip it of meaning, and did not render it unfairly prejudicial so as to require exclusion under s 137.

Ground 3: Jury directions. The Court held that the trial judge's directions were appropriate. The jury needed to be satisfied beyond reasonable doubt that the applicant was present at the shooting. They did not also need to be satisfied beyond reasonable doubt that he had admitted his presence in the recording, unless the recording was the sole basis for finding guilt. Because the Crown case rested on multiple circumstances, the directions given were consistent with Burns and Shepherd.

Ground 4: Fresh evidence. Each of the three categories of alleged fresh evidence failed on two independent bases. First, none of it was truly fresh: the relevant records had been served before trial or were referred to in pre-trial affidavits. Second, even if treated as fresh, none of the evidence gave rise to a reasonable doubt about the applicant's guilt. A connection between another person and a Blackberry device did not provide a reasonable alternative hypothesis as to the identity of the second shooter. Inferences about a fourth vehicle were described as remote. And the material sought to undermine a witness's credibility would not have achieved that result to any doubt-raising degree.

Orders Made

  • Time for filing the Notice of Appeal extended to 6 August 2024
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In a circumstantial murder case, the relevant facts and circumstances must be assessed together, not individually in isolation; the Court of Criminal Appeal applied Dansie v The Queen and The Queen v Hillier in affirming this approach.
  • Partial ambiguity in a surveillance recording does not automatically render it inadmissible or unfairly prejudicial under s 137 of the Evidence Act 1995; the question is whether the recording retains sufficient meaning to be capable of the meaning the Crown asserts.
  • Where a surveillance recording forms part of a broader circumstantial case rather than the sole proof of guilt, the trial judge is not required to direct the jury to be satisfied beyond reasonable doubt of an admission in the recording before using it; the Burns and Shepherd directions apply to the ultimate fact in issue.
  • Fresh evidence on appeal must be genuinely unavailable at trial; evidence that was served on the defence or referred to in pre-trial proceedings does not qualify, regardless of whether it was actively used at trial.
  • Even where evidence technically qualifies as fresh, leave to appeal will not succeed unless the evidence gives rise to a reasonable doubt about guilt; remote inferences or collateral credibility attacks that would not have shifted the jury's assessment will not meet that threshold.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 137
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21
- Butera v Director of Public Prosecutions (1987) 164 CLR 180; [1987] HCA 58
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Director of Public Prosecutions v Roberts (Ruling No 4) [2021] VSC 778
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
- Rogerson v R; McNamara v R [2021] NSWCCA 160; (2021) 290 A Crim R 239
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Smith, Ashford & Schevella v The Queen (1990) 50 A Crim R 434
- Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13