Application by Bassam Hamzy pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

The case involves an application by Bassam Hamzy seeking a review of his conviction for conspiracy to murder. The application was made under section 78 of the Crimes (Appeal and Review) Act 2001 (NSW) and was heard by the Supreme Court. The key issue before the court was whether there was a doubt or question as to the applicant's guilt, or whether his verdict was unsustainable as a matter of law, in light of the acquittal of his co-conspirator, Mr Zraika. This raises the principle of the incontrovertibility of an acquittal and the broader claim of inconsistency between the verdicts of co-conspirators. The court also had to consider the impact of the "fresh" evidence led at Mr Zraika's trial and the different responses of the accused to the Crown case of conspiracy.

The court examined the evidence presented in both trials and concluded that there was a significant difference in the evidence, with Mr Zraika's evidence being absent from the applicant's trial, and the applicant's evidence being absent from Mr Zraika's trial. The court held that the absence of Mr Zraika's evidence from the applicant's trial did not necessarily result in a doubt as to the applicant's guilt, as the applicant's evidence could affect the inferences that might have been drawn as to Mr Zraika's state of mind. The court also noted that Mr Zraika's evidence may not have been accepted (or, at least, raised a doubt as to his guilt) when considered in the context of the applicant's evidence. The court held that the Crown cases against the applicant and Mr Zraika were essentially the same, but this did not mean that the evidence led by an accused could not be taken into account in support of the Crown case. The court found that the applicant's evidence in his trial had the capacity to affect the inferences that might have been drawn as to Mr Zraika's state of mind and that the applicant's case was put in similar terms by the trial judge in her summing up to the jury.

In light of the above, the court held that there was no doubt or question as to the applicant's guilt, nor was his verdict unsustainable as a matter of law. The court held that the principle of the incontrovertibility of an acquittal did not apply in this case, as the acquittal of Mr Zraika did not necessarily mean that the applicant's conviction was unsafe or unsatisfactory. The court also held that the broader claim of inconsistency between the verdicts of co-conspirators did not apply, as the responses of the accused to the Crown case of conspiracy were substantially different. The court held that the applicant's conviction was consistent with the acquittal of Mr Zraika and that there was abundant evidence at the applicant's trial to support his guilt. The court exercised its discretion under section 79(3) of the Crimes (Appeal and Review) Act 2001 (NSW) and refused the application.

The court did not make any orders in relation to the application.