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

Supreme Court New South Wales

Medium Neutral Citation: R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834 Hearing dates: 2-3 July 2019 Date of orders: 03 July 2019 Decision date: 03 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.