R v Munshizada; R v Danishyar; R v Baines (No 1) [2019] NSWSC 293

R v Munshizada; R v Danishyar; R v Baines (No 1) [2019] NSWSC 293

The two murders were alleged premeditated, targeted executions committed about nine weeks apart from stolen vehicles bearing false plates, with multiple distinctive similarities including ambush of victims leaving premises, concealment by a left-handed gunman, use of a 9mm handgun, rapid approach by the attack vehicle and close-range shots to the victims after they fell. Taken with other Crown evidence, those similarities gave the evidence of the two shootings significant probative value as coincidence evidence to prove that Sultani was the gunman on both occasions and to support the alleged participation of the accused in the charged murders. The probative value substantially outweighed...

Jurisdiction
Australia
Judgment Date
22 March 2019
Procedural Posture
Criminal Proceedings for Murder / Pre Trial Application for Leave to Present a Fresh Indictment, Joinder of Counts, Severance and Separate Trial Ruling
Outcome
Leave granted to the Crown to present a fresh indictment; joint trial on both murder counts ordered; Baines' application for a separate trial dismissed.
Legal Topics
['joinder of Counts' 'severance of Counts' 'separate Trial' 'coincidence Evidence' 'cross Admissibility' 'joint Criminal Enterprise' 'accessory Before the Fact' 'prejudicial Effect' 'jury Directions']
['criminal Procedure' 'evidence' 'criminal Law'] ['joinder of Counts' 'severance of Counts' 'separate Trial' 'coincidence Evidence' 'cross Admissibility' 'joint Criminal Enterprise' 'accessory Before the Fact' 'prejudicial Effect' 'jury Directions']

Case Brief

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Procedural Posture

Criminal Proceedings for Murder / Pre Trial Application for Leave to Present a Fresh Indictment, Joinder of Counts, Severance and Separate Trial Ruling

Legal Issues

  1. 1 ['Whether the Crown should be granted leave to present a fresh indictment charging the three accused jointly with the murders of Mehmet Yilmaz and Pasquale Barbaro.' 'Whether the two murder counts should be tried together on one indictment or severed into separate trials.' 'Whether evidence of each murder was cross-admissible as coincidence evidence under s 98 of the Evidence Act 1995 (NSW).' 'Whether the probative value of the coincidence evidence substantially outweighed any prejudicial effect under s 101 of the Evidence Act 1995 (NSW).' 'Whether jury directions would be capable of averting impermissible prejudice from a joint trial on both counts.' 'Whether Joshua Donald Baines should be tried separately from Siar Munshizada on the Barbaro murder charge because of admissions allegedly made by Munshizada to a prison informant.']

Ratio Decidendi

The two murders were alleged premeditated, targeted executions committed about nine weeks apart from stolen vehicles bearing false plates, with multiple distinctive similarities including ambush of victims leaving premises, concealment by a left-handed gunman, use of a 9mm handgun, rapid approach by the attack vehicle and close-range shots to the victims after they fell. Taken with other Crown evidence, those similarities gave the evidence of the two shootings significant probative value as coincidence evidence to prove that Sultani was the gunman on both occasions and to support the alleged participation of the accused in the charged murders. The probative value substantially outweighed...

Court Disposition

Leave granted to the Crown to present a fresh indictment; joint trial on both murder counts ordered; Baines' application for a separate trial dismissed.

Orders

  • ['Leave is granted to the Crown to present a fresh indictment against Siar Munshizada, Mirwais Danishyar and Joshua Donald Baines charging that on 9 September 2016 at St Marys in the State of New South Wales they did murder Mehmet Yilmaz and that on 14 November 2016 at Earlwood in the State of New South Wales they...