Bassam Hamzy v Commissioner of Corrective Services (No 2)

[2017] NSWSC 273

Supreme Court

New South Wales

Medium Neutral Citation:	Bassam Hamzy v Commissioner of Corrective Services and Ors (No 2) [2017] NSWSC 273
Hearing dates:	20 March 2017
Date of orders:	20 March 2017
Decision date:	20 March 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	The application for recusal is refused.
Catchwords:	PRACTICE AND PROCEDURE – Litigant in person – Application for recusal arising from the fact that the trial judge previously prosecuted two witnesses who are to be called in the plaintiff’s case – Application refused
Legislation Cited:	Commonwealth Criminal Code Act 1995
Cases Cited:	Gascor v Ellicott [1997] 1 VR 332 Bassam Hamzy v Commissioner of Corrective Services and Ors (No 1) [2017] NSWSC 183 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Rozenes v Judge Kelly [1996] 1 VR 320 Webb and Hay v R (1994) 181 CLR 41; [1994] HCA 30
Category:	Procedural and other rulings
Parties:	Bassam Hamzy – Plaintiff Commissioner of Corrective Services – First defendant
Representation:	Counsel: In person – Plaintiff Mr J. Emmett – First defendant   Solicitors: Crown Solicitor for NSW – First defendant
File Number(s):	2016/2761272016/276186
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. On 13 March 2017 my Associate received correspondence from the plaintiff in which he made various assertions regarding his inability to properly prepare for the upcoming hearing due to the alleged removal, by officers of the first defendant, of relevant material from his cell, and their alleged actions in denying him access to a computer.

2. Those assertions have been the subject of discussion this morning. Counsel for the first defendant is to obtain further instructions in relation to them.

3. However in the course of his correspondence of 13 March 2017 the plaintiff also said the following:

“I also wish to put the Court on notice that I do not know the law relating to the conflict that may exist when a sitting judge prosecuted two of the witnesses.

My concern relates to the fact that your Honour may have formed certain views or beliefs about my witness’ credibility or character and this may impact your Honour's assessment of their evidence.

If this is not an issue then I will have no application regarding this matter.”

4. Those observations stem from the fact that when the matter was last before me on 6 March 2017 I informed the parties that in 2008 and 2009, whilst in practice at the Bar, I appeared for the Crown in prosecution proceedings against Omar Baladjam and Omar Jamal for what may be generically described as terrorism offences. Mr Baladjam and Mr Jamal are two of the persons in respect of whom I granted the plaintiff leave to issue a subpoena to give evidence in these proceedings: Hamzy v Commissioner of Corrective Services and Ors. (No 1) [2017] NSWSC 183. I understand that the plaintiff now proposes to call each of those persons to give evidence in his case.

5. Mr Baladjam pleaded guilty to doing an act in preparation for a terrorist act contrary to the provisions of the Commonwealth Criminal Code Act 1995. He was sentenced to a term of imprisonment. He did not give evidence in his sentence proceedings and therefore I did not cross-examine him. Mr Jamal pleaded not guilty to a count of conspiring to do an act in preparation for a terrorist act. He was found guilty by a jury following his trial. Mr Jamal did not give evidence in his trial and accordingly, I did not cross-examine him.

6. When I raised the matter with the plaintiff this morning he indicated, somewhat equivocally, that he did not have any application to make and did not wish to take the matter any further. Notwithstanding that, and to the extent that the plaintiff’s correspondence incorporates an application that I recuse myself on the basis outlined in [3] above, such application should be refused.

7. The test to be applied in determining such an application is whether an appropriately informed and fair-minded lay observer might entertain a reasonable apprehension that the judge in question may not bring an impartial and unprejudiced mind to the resolution of any issue or issues in dispute: Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31; Webb and Hay v R (1994) 181 CLR 41; [1994] HCA 30; Rozenes v Judge Kelly [1996] 1 VR 320.

8. The proceedings against Mr Baladjam and Mr Jamal in which I appeared for the Crown took place in 2008 and 2009. My only connection with those two persons is that which I have outlined. There is nothing arising from that connection which might cause an appropriately informed and fair individual lay observer to entertain any reasonable apprehension of prejudice.

9. In that regard I am fortified by the views of Ormiston JA in Gascor v Ellicott (1997) 1 VR 332. Although that case involved the position of an Arbitrator rather than a judge, his Honour’s observation at 350:

“It is quite another thing to say that the Court should disqualify as an arbitrator a person whose only connection with an arbitration and its participants is that certain witnesses are likely to give evidence, some of whom the arbitrator called as witnesses in the past and others whom he has cross-examined and indeed criticised in the past, unless there is some other factor connecting the arbitrator to any one or more of those witnesses which might lead to a reasonable apprehension of bias."

10. The circumstances of the present case are even more remote than those of which his Honour spoke, for the simple reason that I did not cross-examine (or indeed criticise) either of the persons in question.

11. Accordingly in those circumstances, I do not propose to recuse myself from the further hearing of the proceedings.

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Decision last updated: 16 April 2018