R v Munshizada [2021] NSWDC 598

District Court New South Wales

Medium Neutral Citation: R v Munshizada [2021] NSWDC 598 Hearing dates: 2 November 2021 Date of orders: 03 November 2021 Decision date: 03 November 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 31 Catchwords: CRIMINAL LAW – application to discharge jury – offence of affray – whether Crown Prosecutor cross-examination of accused went beyond Crown case statement – whether question occasioned unfairness curable only by discharge of jury Legislation Cited: Crimes Act 1900 (NSW) s 93C Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Director of Public Prosecutions (NSW) Siar Munshizada (accused) Representation: Counsel: Mr P Lowe for the Director of Public Prosecutions (NSW) Mr I Wallach for the accused

Solicitors: Solicitor for Public Prosecutions (NSW) Jamieson Criminal Law for the accused File Number(s): 2020/00075031 Publication restriction: Nil

Judgment 1. Counsel for the accused applies for a discharge of the jury. The application is made in the following context. 2. The accused is being tried on a count of using unlawful violence towards Stephen Stanley by conduct that would cause a person of reasonable firmness present at the scene to fear for his safety, contrary to s 93C(1) of the Crimes Act 1900 (NSW). The event giving rise to the charge occurred in Parklea Correctional Centre. Both the accused and Mr Stanley are inmates of that centre. 3. In the Crown Case summary (MFI 6) that was referred to by Counsel on the application, reference was made to the following parts: 1. On page 1 (of 28 pages) a number of criminal proceedings were listed. The accused persons were, respectively, the accused in this trial, Cameron Scollie, Mohammed Shamim and Stephen Stanley; 2. On page 1 of 28, under the heading 'Statement of liability', it was stated: "The Crown contends that each accused person is criminally responsible in respect of the alleged offence of affray as a principle (sic) in the first degree who was actively involved in a physical altercation at Parklea Correctional Centre, area 5 gate area on 1 September 2019. The Crown contends that each of the accused used unlawful violence towards each other, and others, at Parklea Correctional Centre on 1 September 2019. The Crown further contends that the conduct of each accused was such that it would cause a person of reasonable firmness present at the scene to fear for his or her personal safety." 1. At paragraph 56 (p 27), the following appears: "It is the Crown case that the actions of (the accused), Scollie, Stanley and Shamim prior to the commencement of the physical altercation reveal an element of pre-planning. It is not known what the conflict was, however, it is the Crown Case that there was a plan in place to hang at the back of the group and commence a physical altercation in the 5-gate area." 1. During the Crown prosecutor's Opening Address, the prosecutor played before the Jury the CCTV footage. In the course of this, the prosecutor specifically invited the Jury to observe from the CCTV footage the actions of the accused and Mr Stanley, but also the other actions of Cameron Scollie and Mohammed Shamim and what occurred to Mr Bernie. This was the prelude to an initial submission about an element of the offence for which the accused was charged (T19-21). About that offence, the Crown prosecutor then said the following: "The law is that where two or more persons use unlawful violence, it's the conduct taken of all of them together to be considered. That's why I've drawn your attention not just to one fight happening, but other fights happening, so it's everyone participating in the affray that determines the affray. So it's not just Cameron Scollie joining with (the accused) against Mr Stanley. It's also Mohammed Shamim and Jack Bernie. So all of that conduct taken together." (T 21.36 – 21.42). 1. No objection was taken by the accused's Counsel to anything said by the Crown prosecutor in his Opening. 2. It emerged from Counsel for the Accused's Opening, in effect, that the principal issue for the jury's determination is whether the accused acted in self-defence (T 22). A cardinal part of that defence, which the Crown is ultimately required to negative, is that the accused acted as he did because he believed that it was necessary to defend himself and, if that is accepted, his conduct also represented a reasonable response to the circumstances as he perceived them to be. Both elements of the defence squarely raise the accused's state of mind. 3. The Crown case relied upon CCTV footage and photographs (contained within Exhibit B), and some testimonial evidence of Corrections officers. In the CCTV footage and through the evidence of several of the Corrections officers (including but not limited to Corrections officers Appiah, Brown and Thomson), emphasis was given not only to the fight between the accused and Mr Stanley, but another fight involving an attack on a different inmate, Mr Bernie, in which that inmate was seen slumping on the ground. 4. The CCTV footage (Exhibit A), which comprised the footage of 3 cameras, was positioned from different parts of the area. The Crown's witnesses, to different degrees, gave evidence about their recollections of what they observed in the conduct of the accused, Mr Stanley and some other inmates, being Cameron Scollie, Mohammed Shamim and Mr Bernie. Even more explicitly, photographs of the CCTV still image references specifically highlighted (in different colouring and sometimes with circles placed around the individuals) these individuals. 5. After the Crown case closed, and once it became clear that the accused elected to give evidence, instantaneously the Crown prosecutor verbally indicated to the Court that it was his intention to be putting to the accused that his fight with Mr Stanley was pre-arranged. Counsel for the accused objected to that proposed course, but as the exchange indicates in the transcript (T 88) that had more to do with the extent of the evidence to support the proposition rather than any suggestion that it would be unfair for the Crown to put the suggestion of pre-planning. 6. The accused was called and gave a narrative account in his evidence in chief of what occurred. In the course of which, he was led, by his Counsel, through part of the CCTV footage. He was not asked by his Counsel and he did not give evidence of the content of what communications he had with other inmates, Scollie, Shamim or Stanley. 7. At the outset of the Crown prosecutor's cross-examination, the Crown started by saying that the Crown would be putting to the accused that his fight with Mr Stanley was 'arranged'. The accused denied the proposition. Counsel for the accused did not, and does not now take issue with the fairness of this particular proposition. The prosecutor then specifically identified that he was going to put to the accused that had an arrangement with Cameron Scollie. Objection was taken as to form, but not the fairness of it. In the event, the question was not answered. 8. The Crown prosecutor then said the following (T 97.39 – 97.44): "I'm also going to be putting to you, and it will be I'll play the video for you and I'm going to be putting specific what you can see in the video you had an arrangement with Mr Shamim to attack Jack Bernie whilst you were having a fight with Stanley. Do you understand that?" (emphasis supplied) 1. The accused's response was "I understand that yeah". 2. One might think, when considering the earlier exchanges between the Crown prosecutor and the accused that what the prosecutor was doing here was essentially telegraphing to the accused the ultimate propositions which the Prosecutor was going to put to him, as a result of the course of cross-examination as the prosecutor anticipated the cross-examination would proceed, hence the repeated use of the expression 'I'm going to be putting". Further, it appears the accused well understood what the prosecutor was doing, which was why his answer to it indicated his understanding that the proposition that was going to be put to him and did not respond to the underlying correctness (or otherwise) of the proposition itself. 3. Henceforth, and for the purposes of considering this application, I will refer to this as the "Impugned Foreshadowed Proposition". The cross-examination continued, until the luncheon adjournment (on day 2 of the trial) with the Crown prosecutor leading the Accused through the CCTV footage. In the course of this part of the cross-examination, the prosecutor specifically put to the accused that he had arrangements: (a) with Scollie to walk with him around the "legal boxes" (ie places where visits from lawyers to inmates occurred); and (b) to meet the inmate Shamim in the middle of the yard. There was no objection taken by Counsel for the accused to either of these propositions being raised. 4. After the luncheon adjournment, Counsel for the accused made his application. He submitted that it was improper for the Crown prosecutor to put to the accused the Impugned Foreshadowed Proposition.