R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834 (3 July 2019)

Last Updated: 9 July 2019

Supreme Court New South Wales

Case Name:	R v Munshizada; R v Danishyar; R v Baines (No 2)
Medium Neutral Citation:	[2019] NSWSC 834
Hearing Date(s):	2-3 July 2019
Date of Orders:	3 July 2019
Decision Date:	3 July 2019
Jurisdiction:	Common Law - Criminal
Before:	Fagan J
Decision:	Application to vacate trial date granted
Catchwords:	CRIMINAL PROCEDURE – application to vacate trial date
Cases Cited:	Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 R v Munshizada (No 1) [2019] NSWSC 293
Category:	Procedural and other rulings
Parties:	Regina Siar Munshizada Mirwais Danishyar Joshua Baines
Representation:	Counsel: N Adams SC with A Morris (Crown) A Djemal (Munshizada) M Ayache - solicitor (Danishyar) K Kyriacou - solicitor (Baines) R Grady (Commissioner of Police) Solicitors: Solicitor for Director of Public Prosecutions (Crown) Zahr Partners (Munshizada) Onegrouplegal (Danishyar) Kiki Kyriacou Lawyers (Baines) Crown Solicitors Office (Commissioner of Police)
File Number(s):	2016/358164 2016/358151 2016/358034
Publication Restriction:	No

JUDGMENT

1. HIS HONOUR: On 2 and 3 July the three accused applied to vacate the listing of their joint trial before this Court, which was fixed to commence on 8 July 2019 with a Crown estimate of four months. They face two counts of murder, of Mehmet Yilmaz on 6 September 2016 at St Mary’s and of Pasquale Barbaro on 14 November 2016 at Earlwood. The Crown case on the Yilmaz murder is summarised in R v Munshizada (No 1) [2019] NSWSC 293 at [7]- [21] and the case on the Barbaro murder is summarised at [22]-[40] of that judgment.
2. The Crown estimate of the trial length is subject to it being shortened if defence counsel were briefed and would consent to at least some evidence being abridged. The brief of evidence has been provided to the Court. There is considerable scope for shortening the Crown case by the parties agreeing that high-volume but routine and probably uncontroversial evidence should be led through the officer in charge of the investigation. At no time have the accused had counsel sufficiently instructed to discuss efficient and economical conduct of the trial.
3. The accused have been in custody since 29 November 2016 when they were arrested and charged with the murder of Barbaro. They seek vacation of the trial date on the ground that they have been unable to engage counsel for the trial. For reasons that follow I am satisfied that that is the situation and that it is not feasible for the solicitors themselves to conduct their defence.
4. The circumstances engage principles laid down by the High Court in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. The majority view in that case is captured in the following passage at 311 (Mason CJ and McHugh J):

The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.

Procedural history in this Court

5. On 2 March 2018 the three accused were first arraigned in this Court, together with Abuzar Sultani, on an indictment which alleged only the murder of Barbaro. The Crown and the accused all accepted that they could be ready for a trial to commence on 12 November 2018 with an estimate of four weeks. Each of the accused’s representatives stated that the only issue was “identity”.
6. On 14 June 2018 investigating police obtained an induced statement from a person known as RS888. He said he had witnessed Sultani carry out the murder of Mehmet Yilmaz in a joint criminal enterprise with the three accused. Sultani and Baines had been charged with this murder on 5 October 2017. Munshizada was charged with it on 27 July 2018 and Danishyar on 3 October 2018, in the Local Court.
7. On 7 September 2018 the Crown notified the three accused (and Sultani) that it was considering an ex officio indictment against them for the Yilmaz murder, in order to join that charge with the existing count for the murder of Barbaro. The notification also concerned a third charge laid against Sultani and one of the three accused.
8. On 11 October 2018 the Crown applied to vacate the trial of the accused (and Sultani) for the murder of Barbaro, listed for 12 November 2018, on the basis that the Crown wished to join the Yilmaz murder count and the third charge on the one indictment, with an estimate of 4-6 months for the joint trial. Even if the counts were not all to be tried together, the Crown wished to adduce evidence of the murder of Yilmaz as coincidence evidence with respect to the murder of Barbaro. The Crown was not ready to proceed with that additional evidence and the existing trial fixture was of insufficient length to accommodate the enlarged prosecution case. The trial fixed for 12 November 2018 was vacated.
9. On 11 October 2018 all legal representatives indicated that the accused would contest the joinder of all three charges on the one indictment and the admissibility of coincidence evidence. An application for separate trial of one of the accused was foreshadowed. All of those issues were listed for determination during the period of the vacated trial, commencing 12 November 2018. Directions were made for notices of motion and submissions to be filed. The Court impressed on the parties that it was important to resolve these issues in November in order to know whether there would be one long trial or a number of shorter trials, for listing purposes (Tcpt 11/10/2018, 13-14).
10. On 31 October 2018 the solicitors for all accused were notified by email from the Court that their trial would commence on 10 June 2019. That was a public holiday and would have been understood by all as a reference to 11 June. The email advised that there would be either a single trial of all counts or back to back trials of individual counts, depending upon the Court’s ruling on the issues listed for 12 November 2018.
11. On 1 November 2018 there was a directions hearing at which the commencement date of 10 June 2019 was confirmed. The Court would not usually list a trial without assurance that counsel had been retained for it but the new date was then eight months away and this should not have caused any difficulty. The trial was fixed in order to secure available Court time given that the accused had been on remand for two years.
12. On 12 November 2018 the accused were not ready to proceed with the argument concerning joinder of counts, coincidence evidence and separate trial. The briefs for all three counts comprise in total approximately 40 folders of central material. The defence representatives had not had sufficient time to examine the potential impact on their clients of being prosecuted on all counts on the one indictment and/or the Crown leading coincidence evidence of each alleged murder in proof of the others.
13. On 12 December 2018 the applications to sever the indictment (and related issues) were set down for 11 March 2019, being the earliest date in the new term for which I, as the trial judge, could be available.
14. From 11-13 March 2019 the Court heard argument on these issues. The Crown withdrew its application to have the third charge (against Sultani and one of the three accused now before the Court) joined on the indictment. On 11 March 2019 Sultani was arraigned for the Yilmaz murder and re-arraigned for the Barbaro murder. Aspects of the proceedings that day are the subject of non-publication orders. Sultani is no longer be tried with the three accused on the indictment for the Yilmaz and Barbaro murders and is to be tried separately on the third charge, on a date yet to be fixed.
15. On 13 March 2019 the Crown prosecutor informed the Court and the accused that it was unknown whether RS888 would plead guilty to the murder of Yilmaz, with which he was at that time charged in the Local Court. If RS888 should defend the charge the Crown proposed to have his trial proceed before that of the accused, it being the Crown’s intention to call him as a witness. It was made clear from the bench that if RS888 should defend the charge he would be tried commencing on 11 June 2019 and that the start of the accused’s trial would be deferred long enough for that to occur.
16. On 22 March 2019 orders were made that the two counts for the murders of Yilmaz and Barbaro be tried on the one indictment and that all three accused be tried together. The Crown advised that RS888 had confirmed he would defend the murder charge against him and that he would be arraigned in this Court on 5 April 2019, to be tried commencing 11 June 2019. Counsel then appearing for Danishyar requested that the date of commencement of the joint trial of his client be fixed “sooner rather than later” because:

counsel can’t be waiting around to determine whether the trial starts in June or July. It poses some difficulties because the trial involving my client, at least, is a long trial now and has the capacity, therefore, to draw out at the backend.

17. Evidence on the adjournment application shows that none of the solicitors for the accused had by 22 March 2019 endeavoured to engage counsel on legal aid for either a single trial or for two shorter back to back trials, commencing 11 June 2019 for four months. That was because the accused had privately funded the pre-trial applications of 11-13 March 2019 in order to engage counsel of their choice, who evidently were not willing to appear on Legal Aid fees.
18. On 9 April 2019, before the criminal list judge, RS888 pleaded not guilty to the murder of Yilmaz and his trial was listed for 17 June 2019 “with a current estimate of 2 weeks plus”. Legal representatives of each of the accused were informed that their joint trial would commence after a verdict had been returned in respect of RS888 (and after he had been sentenced if found guilty), “on either 8 July or 15 July”. Her Honour was told that trial counsel had not been briefed for any of the accused and expressed the view that they had “well sufficient time ... for counsel to be secured”.
19. I respectfully agree that three months’ notice of a firm trial date, being one month deferred from the 11 June date that had been previously been fixed, would, under normal functioning of the relationship between legally-aided solicitors and counsel, be ample time within which to have a brief accepted at the Sydney Bar for a four month trial. However, that expectation has been invalidated by the evidence adduced on this application. The solicitors’ fruitless enquiries have shown that barristers who are acceptable to Legal Aid for a case of this difficulty are reluctant to make themselves available for a long trial at Legal Aid fee scales. The resulting inability of legally-aided solicitors to secure counsel has made it necessary to vacate this four month trial.
20. In retrospect it would have been prudent for the accused’s solicitors to have set about engaging counsel on legal aid from 31 October 2018 but I cannot say that they should have anticipated it would be impossible to retain counsel if briefing was deferred from that time. I therefore do not attribute material fault to them for not attempting to engage trial counsel then, although they knew that counsel whom the clients had privately funded for pre-trial arguments were either unavailable for the trial or unwilling to conduct it on Legal Aid fees. In future, having regard to what has happened in this case, legally-aided solicitors will be on notice to commence inquiries with the Bar much longer in advance of a trial date than three months

The accused’s solicitors

21. Munshizada retained Zahr Partners from a date prior to his arraignment in this Court (2 March 2018). An application for legal aid made on 8 November 2018 was refused on 20 December 2018. A fresh application was not made until 29 June 2019 and a grant was made the next day. The solicitors undertook further work from 22 March 2019, including their attempts to find counsel, in the expectation of receiving a legal aid grant for the trial.
22. Danishyar retained Mr Ali Abbas, solicitor, from prior to 2 March 2018. Mr A Ayache, as the appointed manager of the practice, took over representation from 2 November 2018 upon Mr Abbas’ suspension. Mr Ayache was instructed that legal aid would not be required if the Yilmaz and Barbaro murder charges were tried separately but would be required if there was to be a joint trial. Mr Ayache commenced enquiries about a grant from Legal Aid from about 22 March 2019 but the first formal application on behalf of Danishyar was made on 21 June 2019. A grant for the trial was made on 30 June 2019. Mr Ayache has since early April endeavoured to engage counsel in the expectation of receiving this grant.
23. Baines retained Mr K Kyriacou from 22 February 2019. Mr Kyriacou briefed counsel for the applications on 11-13 March 2019. He was privately funded until 12 April 2019, on which date legal aid was granted for the trial.

Attempts to brief counsel from 9 April 2019

24. Commencing on 9 April 2019 the three solicitors made joint and coordinated enquiries to ascertain the availability of any three counsel on Legal Aid’s Complex Criminal panel for a four month trial commencing 8 July 2019. Ms Fahmy and Mr Kyriacou had made limited preliminary enquiries shortly prior to this. The solicitors have sworn or affirmed affidavits describing their enquiries, with details of the chambers contacted, the follow-up of clerks and individual counsel, emails sent directly to a large number of counsel on the panel and communications from clerks concerning some barristers who had expressed interest in the trial but who were not included on the panel.
25. The Crown, which has a strong interest in holding the trial date, did not cross-examine the solicitors on their affidavits. I enquired into the sufficiency of the enquiries as thoroughly as I could, with questions from the bench to the bar table. I cannot say that the solicitors’ efforts have not been reasonably diligent.
26. All three solicitors applied to the Public Defenders Chambers, but not until the end of June or 1 July 2019 when enquiries of private counsel on Legal Aid’s panel had failed. Unsurprisingly the Public Defenders were unable to accept a brief for any of the accused on applications received less than one week out from the trial. The Court has no evidence regarding what period of notice to the Public Defenders Chambers might have sufficed for a four month double murder trial. In Mr Kyriacou’s experience the Public Defenders’ availability to accept a brief from legally-aided private solicitors is extremely limited. For that reason enquiries of private counsel on Legal Aid’s panel were exhausted first. Mr Kyriacou informed the Court that he has been unable to secure the services of a Public Defender in more than two years, even for trials estimated to run for one to three weeks, on reasonable notice. I infer that the applications to the Public Defenders Chambers in this case were made merely to elicit an expected negative answer and to demonstrate that this is not an available alternative.
27. There are 106 counsel on Legal Aid’s Complex Criminal panel. Legal Aid will only provide a grant for any trial in the Supreme Court on terms that one of those barristers is briefed, or any Senior Counsel. This trial will undoubtedly be complex, particularly as regards the Crown’s reliance upon coincidence evidence and cross admissibility between the two counts. Also, the Crown will call a number of informant witnesses in respect of whom suppression or non-publication orders or other protective measures will be required. It will call RS888 who has received a significant discount on his own sentence for the Yilmaz murder and for other crimes, on the basis of his undertaking to give evidence in the Crown case. From the core of the Crown brief in approximately 40 lever arch folders, defence counsel may identify a much smaller volume that is of real importance to any one of the accused. But significant time, skill and judgment would be required to assess the critical evidence and issues.
28. Among the counsel whom Legal Aid approves to be briefed for a trial in this Court, there would be few who would have diaries completely empty for four months on three months’ notice. It is the usual practice of the Bar that for a long case counsel of appropriate seniority would make themselves available by seeking approval from other clients and solicitors to transfer briefs already held in less important matters. On three months’ notice this should create no difficulty. This is universal practice for barristers at all levels of seniority and in all fields of law. Without willing re-arrangement of work in this fashion the Bar as an institution could not fulfil its purpose of providing skilled advocacy as needed. At first sight, therefore, the solicitors’ inability to find counsel appears surprising.
29. However, Legal Aid itself has provided a straightforward economic explanation of counsel’s failure to make themselves available for this long and demanding trial. By email of 26 June 2019 Mr Kyriacou informed the Senior Criminal Law Solicitor in the Grants Division of Legal Aid NSW of his difficulty and sought confirmation that approval would not be given for the brief to go to a barrister not on the panel. The following is an extract of the Senior Criminal Law Solicitor’s reply of 26 June 2019:

There are a number of reasons why you are unable to find the barrister from the Complex/Serious Crime Barrister Panel including:
1) that the barristers who are on that panel are there because of their expertise - and it is that very expertise that means they are in demand for privately-funded briefs which pay much more than a legally-aided brief.
2) That they take on larger and longer legally-aided matters because of their commitment to justice, but cannot base their practice exclusively on legally-aided briefs otherwise they will not generate sufficient income to meet their overheads, chamber fees and generate sufficient income for their personal commitments. I am mindful of the recent press release of the President of the Bar Association on the issue of remuneration in legally-aided matters.
3) That legally aided clients are extremely demanding and often present with a myriad of psychiatric, psychological and education difficulties that requires greater effort on the part of their legal representatives to obtain proper and coherent instructions ... .
... Legal Aid NSW would be extremely reluctant to approve junior counsel who is not a member of the Complex Crime Barrister Panel in a Supreme Court trial. ...
I am often concerned when I hear judges say, “there are plenty of other counsel out there” in response to a solicitor advising the court that they are having difficulties in finding appropriately experienced counsel or that the chosen counsel already briefed is not available for the proposed trial date. [The fact that there are plenty of other counsel who] fall short of the standard of representation gave rise to the Trial Efficiency Working Group in 2007 that resulted in the creation of the Legal Aid NSW specialist panels.
As always, Legal Aid NSW will do all it can to assist courts in the administration of justice by ensuring that the legal representatives in legally-aided matters are of the highest calibre to properly represent the accused and properly assist the Court.

30. On 27 June 2019 the Senior Criminal Law Solicitor wrote:

Less experienced counsel will cause [the trial to run] longer both due to the inexperience and, as has unfortunately been the case in the past, because they are unlikely to pick up another brief that guarantees a weekly (albeit modest) pay-packet.

31. In summary, it is the opinion of this officer, based on experience and observation, that counsel’s fees payable by Legal Aid are insufficient to secure representation for accused persons by professionals of the required standing and ability. I have received no evidence as to what Legal Aid’s rates are or how they compare with rates paid by privately funded clients. I would not consider it relevant for the Court to enquire into those numbers. On this application I am concerned only to evaluate the genuineness of the solicitors’ claimed inability to engage counsel. The information from Legal Aid’s Senior Criminal Law Solicitor provides a systemic explanation for the difficulty. It corroborates the solicitors’ claim that their clients’ lack of representation for the trial is beyond their control and not of their own making.
32. The solicitors have been in communication with three counsel willing to accept the brief on legally-aided fees commencing in 2020. Consistently with the information from the Senior Criminal Law Solicitor, I infer that some counsel may be willing to take on such a case at Legal Aid rates in a period far ahead for which their diaries are entirely free but will not forego such privately paid work as they may have secured in the short term. There may be an element of counsel having done as much legal aid work as they can afford to take in 2019 and not being prepared to accept more until next year. In light of the difficulties described it will be necessary for the solicitors to deliver briefs formally to the three counsel who are available in 2020 and engage them upon reading and preparation, to maintain their commitment.

The application to vacate

33. The proceedings were listed for a pre-trial readiness hearing on 17 June 2019. At that time the applications to vacate were foreshadowed. Notices of motion were filed on behalf of Baines on 21 June 2019 and Munshizada on 24 June. These were listed for hearing on 2 July 2019. Mr Ayache applied orally.
34. On 2 July I suggested that the trial may have to proceed with representation by solicitors only. The proceedings were stood over to 3 July 2019 to enable an officer of Legal Aid NSW to provide further information. Ms Miller attended in that capacity on 3 July 2019 and provided helpful clarification. The Court was informed that the grant of aid to each accused covers solicitors acting in the usual instructing role but would not cover fees for them to conduct the trial as solicitor-advocates. Without counsel the accused will therefore be unrepresented. The solicitors do not profess capability to conduct the defence cases and could not be expected to do so without even Legal Aid funding.
35. The Crown invited consideration of an adjournment of the trial for just one month, acknowledging that it had recently served additional evidence. The recent service would not of itself warrant a month’s delay given that there would be ample opportunity to absorb new material during the running of a Crown case of the length anticipated. The defence solicitors’ enquiries have not identified counsel who would have been able to commence at the end of the first week of August. Even if they should now do so, that would barely leave any opportunity for preparation. Delaying commencement of the trial beyond the first week of August would run the risk of not concluding it by the end of the Court term. In these circumstances, adjournment of one month would not achieve anything. It would keep the numerous people concerned in the trial on hold, to no avail.
36. In a final effort to salvage some of the four months allocated I invited the Crown on 3 July 2018 to consider whether it might wish to try the accused first for the murder of Yilmaz, only. That might occupy only one or two months. Pursuant to the ruling of 22 March 2019 the Crown is entitled to proceed on both charges on the one indictment but whether it does so is a matter within its discretion. It was put to Crown counsel that it may be easier for the accused to secure representation for a trial of up to two months on the Yilmaz murder alone, to commence in, say, August or early September. Crown counsel responded that the decision to prosecute both murder charges in the one trial will be adhered to.
37. If the trial were not vacated it could only proceed with the accused unrepresented. If convicted they face a maximum penalty of imprisonment for life. I have already referred to the length and complexity of the case. I am not satisfied these accused would be able fairly to meet the Crown’s evidence or to present their own cases without professional representation. Where the accused have not chosen to be unrepresented and where the evidence does not show that the situation has arisen through their own fault, a trial of these charges without the assistance of counsel could not be regarded as fair according to law. If the Court were to force the case on, a verdict against the accused would not withstand appellate scrutiny.
38. I am bound by the pronouncements of the High Court in Dietrich v The Queen, including the following (citations omitted:

It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious. Lord Devlin stressed the importance of representation by counsel when he wrote:

“Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks down."

An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. (at 300-301, Mason CJ and McHugh J)
A criminal trial in this country is essentially an adversarial process. Where the charge is of a serious crime, the prosecution will ordinarily be in the hands of counsel with knowledge and experience of the criminal law and its administration. The substantive criminal law and the rules of procedure and evidence governing the conduct of a criminal trial are, from the viewpoint of an ordinary accused, complicated and obscure. While the prosecution has a duty to act fairly and part of the function of a presiding judge is to seek to ensure that a criminal trial is fair, neither prosecutor nor judge can or should provide the advice, guidance and representation which an accused must ordinarily have if his case is to be properly presented. ...
An accused is brought involuntarily to the field in which he is required to answer a charge of serious crime. Against him, the prosecution has available all the resources of government. If an ordinary accused lacks the means to secure legal representation for himself and such legal representation is not available from any other source, he will, almost inevitably, be brought to face a trial process for which he will be insufficiently prepared and with which he will be unable effectively to cope. In such a case, the adversarial process is unbalanced and inappropriate. (at 334-335, Deane J)

39. For the above reasons, on 3 July 2019 I ordered that the trial listed for 8 July 2019 be vacated and that the accused appear before the list judge on 12 July 2019 for the purpose of refixing their trial in 2020.
40. Inability to secure the services of trial counsel at Legal Aid rates on reasonable notice for a long trial is a problem that requires urgent attention to enable this Court to do its work. Remedial measures might include increasing current rates, expanding the number of public defenders, prioritising the work of public defenders to cases that are difficult to place with the private Bar or a combination of these. Representation of the accused by competent counsel is not only a requirement of a fair trial at law but is also essential to efficiency. Competent defence counsel contribute significantly to shortening trials, thus saving public expense and reducing the burden of long cases upon juries. On this application Senior Counsel for the Crown submitted:

[T]he Crown would be disadvantaged by having to deal with unrepresented accused in a matter of this complexity and length.

41. Where inability to brief counsel for a long trial at Legal Aid rates forces an adjournment, the waste of public resources is enormous. In this case the trial judge and Court staff, a specially summoned jury panel, the Crown legal team and numerous police witnesses and case officers have all been made beholden to two institutions that have a necessary part to play if a trial is to take place: Legal Aid NSW and the private Bar. Uncontested evidence indicates that the economic relationship between those institutions has become dysfunctional for a case such as the present.
42. The public interest in having charges as serious as these two murders brought before a jury as promptly as possible has been frustrated. From the accused’s point of view, they will remain in custody on remand for another eight months and will have been so held for approximately 3 ½ years by the time they face a jury.
43. The Court reserved four months of the sitting time of one judge for this case. Other trials have had to be listed on later dates or not yet listed at all, in most cases with accused persons in custody. Upon vacation of this trial it is unlikely that other cases in the criminal list will be able to be brought forward. The Court’s clearance of pending criminal trials has been set back significantly.

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