Commissioner of Police NSWPF v Amoun (No 2)

[2021] NSWSC 734

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of Police NSWPF v Amoun (No 2) [2021] NSWSC 734

Hearing dates:

22 June 2021

Date of orders:

22 June 2021

Decision date:

22 June 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Paragraph 8.1 of annexure A to Garling J's judgment is varied by suspending the prohibition on the applicant approaching, contacting, speaking to, or associating directly with Hassam Hamzy, Tareek Hamzy, and Ibrahim Hamzy only if Ibrahim Hamzy is permitted by this Court to be present at the funeral of Bilal Hamzy. Such suspension is limited to the hours of 9am to 3pm on 23 June 2021 and only whilst the applicant is present at the funeral of Bilal Hamzy at the Lakemba Mosque and at Rookwood Cemetery.

Catchwords:

CRIME – serious crime prevention orders – application to vary – where orders made preventing contact between two crime families and amongst members of the Hamze families – where a member of the Hamze family recently killed – application by one member of the Hamze family subject to the orders to attend the funeral – opposed by police – non-association order varied for limited time – suppression order until the conclusion of the funeral

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8

Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) s 12

Cases Cited:

Commissioner of Police NSWPF v Amoun & Anor [2020] NSWSC 1810

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Commissioner of Police, New South Wales Police Force (Plaintiff)
Ghassan Amoun (First Defendant)

Representation:

Counsel:
C Melis (Plaintiff)
E Ozen SC (First Defendant)

Solicitors:
Office of the General Counsel, NSW Police Force (Plaintiff)
Dib & Associates (First Defendant)

File Number(s):

2020/322280

Publication restriction:

Nil

Judgment

1. On 18 December 2020 Garling J made orders under the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) against Ghassan Amoun and Ibrahim Hamzy: Commissioner of Police, NSWPF v Amoun & Anor [2020] NSWSC 1810. Ghassan Amoun (the applicant) now applies to vary the orders to allow him to attend the funeral of his cousin, Mr Bilal Hamzy, which is to take place tomorrow 23 June 2021. Although the application seeks that the non-association orders contained in Garling J's orders be temporally suspended, the orders I intend to make will be more restrictive in a way I will explain.

2. The non-association order made by Garling J, which is clause 8 of the annexure to his Honour's judgment, provides:

8.1   The defendant must not approach, contact, or speak to, or associate directly or indirectly with:

(a)   Bassam Hamzy;

(b)   each other defendant;

(c)   Haissam Hamzy (DOB 14/04/1994);

(d)   Tareek Hamzy (DOB 05/01/1998); or

(e)   Rafat Alammedine, or any of his family members, or any person known to the defendant, or else believed by the defendant to be a criminal associate of the Alameddine family, except Mejida Alameddine (also known as Mejida Hamze)

whether in writing, or by oral or electronic communication (i.e. via telephone, text message, email or other social media) or communication through a third party.

3. As Garling J made clear in his judgment, the purpose of the orders was to inhibit serious criminal activity, which has taken place and which was likely to continue to take place between two families, being the Hamzy and Alameddine families. The significance of the risk to members of the public and to members of each of the families is clearly set out in Garling J's judgment and, in particular, [128] to [130].

[128]   I am satisfied these attacks are each retaliatory attacks which are causally linked to one another (that is to say, each attack is retaliation for a previous attack). I am further satisfied these events strongly suggest that two groups of criminals, here rival families, are sorting out their differences between themselves in a violent manner and without engaging with the Police. This is a course of conduct of rampant serious and violent criminality, involving members of the Hamze family on one side and members of the Alameddine family on the other, occurring in public and intended to continue to inflict violent retaliation upon each other for perceived crimes and slights.

[129]   Whilst the publicity about these events, the intense Police investigations which are occurring, and, perhaps, the existence of these proceedings, has led to a pause in these retaliatory attacks, there is no reason to think that the disputes have been finished and settled for all time. On the contrary, these recent events demonstrate a clear, present, real and substantial risk that members of both of these families and their associates in their criminal networks will continue to engage in retaliatory attacks, conducted in public places, in circumstances where it is highly likely that one or more members of the public will be harmed or adversely affected.

[130]   From a review of all of the evidence, which I have here discussed and which I have found to have been proved to the requisite standard, I am satisfied that there is a real likelihood or else a real or significant risk that each of these defendants will be involved in serious crime-related activity as part of the series of retaliatory steps and as part of a general escalation of violent attacks being perpetrated by members of the Hamze family on those whom they perceive to be their rivals.

4. For that reason his Honour considered that not only should there be restrictions on the two families from contacting each other but also that there should be restrictions within the Hamzy wider family. The result was that the non-association condition prevented the two defendants having any contact with Bassam Hamzy, each other, Haisssam Hamzy and Tareek Hamzy, in addition to non-association with the Alameddine family.

5. The present application arises because on the 17 June 2021 Bilal Hamzy was shot and killed in the Sydney CBD. His funeral is to take place tomorrow, commencing at the Lakemba Mosque at 9.30am; with the burial to take place subsequently at Rookwood Cemetery and the whole funeral arrangements concluding at around 2pm.

6. The deceased person was a cousin of the applicant.

7. The application is opposed by the Commissioner of Police. Ms Melis, of counsel, who appears for the Commissioner, relies particularly on what Garling J has said at various places in his judgment, which were directed to the collaboration between the members of the Hamzy family in various retaliatory attacks perpetrated against the Alameddine family.

8. In relation to the non-association conditions Garling J said at [188] and [189]:

[188]   Finally, conditions are sought with respect to non-association. In my view, given the nature of the retaliatory crimes which are being committed by individuals who are within a family group or are against individuals in a separate family group, a non-association condition is appropriate.

[189]   The terms which are proposed are, I am satisfied, likely to be effective in preventing ongoing crime. I accept that they may prevent contact between family members at all, even though much of that contact my not relate to criminal activity. But that restriction is outweighed by the need to so condition the order to ensure its effectiveness in preventing or restricting serious crime-related activity.

9. The purpose of restricting association within the family was designed to prevent the arrangement of further serious criminal activity entered into as part of the retaliations. On that basis Ms Melis submits that that purpose would be undermined by permitting the applicant to be able to have any contact or association with the persons named in cl 8.1 of the annexure to the judgment.

10. It is apparent from Garling J's judgment that he considered that Bassam Hamzy was the organising force within the family; and that the other members of the family carried out his orders and intentions by engaging in criminal activity generally, and in relation to the retaliatory attacks. Mr Ozen, of senior counsel, for the applicant, has informed me that Bassam Hamzy will not be attending the funeral. It is a significant factor, in my mind, that Bassam Hamzy will not be in attendance at the funeral.

11. Two of the other persons with whom the applicant must not associate have not had orders under the Crimes (Serious Crime Prevention Orders) Act made against them, although Garling J detailed in his judgment their, perhaps, more limited involvement in the criminal activity.

12. The final person with whom the applicant must not associate is Ibrahim Hamzy, who was the other defendant in the proceedings before Garling J. At the present time no application has been made to the Court by him for a variation of the orders made against him. I do not place a great deal of significance on the fact that, as presently advised, he will not, therefore, be at the funeral, but it is a factor to take into account.

13. Ms Melis also relies upon recent intelligence that suggests that the applicant is said to be the next person to be targeted, and it is likely that his movements will be monitored, if he is allowed to attend the funeral.

14. In my opinion there can be no doubt that there will be a heavy police presence at the funeral. As Mr Ozen put it, that factor suggests that the safest place for the applicant is likely to be the funeral.

15. There is no evidence which would suggest that the funeral will be used by the applicant for the purpose of facilitating the commission of further criminal offences, although I accept, as a result of what Garling J has said in his judgment, that there is always a risk where the Hamzy members are allowed to associate with each other.

16. Ms Melis has also drawn attention to the fact that the present application is made at what she has described as a critical juncture, namely, the shooting of Bilal Hamzy in the Sydney CBD, putting members of the public at significant risk. Certainly, the application is made following the latest killing, but that, of course, is also the explanation for the application.

17. Orders made under the Crimes (Serious Crime Prevention Orders) Act are a serious restriction on the liberty of citizens, although where it is necessary to make those orders that liberty must be restricted. It does not seem to me, however, that permitting the applicant to be in attendance for a limited period of time at his cousin's funeral is likely to increase the risk to the safety of members of the public or indeed to the applicant himself.

18. Section 12 of the ACT permits applications to various serious crimes prevention orders, but such applications can only be made with the leave of the Court. Section 12(2) provides that leave may only be granted if the Court is satisfied that "there has been a substantial change in the relevant circumstances since the order was made". I am satisfied that the killing of Bilal Hamzy is a substantial change in the relevant circumstances to justify leave being given to the applicant to seek the variation that he does.

19. I note that subs (3) requires the Court to have regard to the same factors that the Court is required to have regard to when considering whether or not to make a serious crime prevention order. I have read with care Garling J's judgment and noted the factors that justified his Honour in making the orders. I do not consider that those reasons are undermined by permitting the variation that is now applied to be made.

20. The suspension will only relate to that part of cl 8 that will enable the applicant to approach, contact, speak to or associate directly or indirectly with Haissam Hamzy, Tareek Hamzy, and Ibrahim Hamzy if he is permitted by this Court to attend the funeral. The suspension will not relate to electronic communication via telephone, text message, email or other social media.

21. The Commissioner sought that a suppression order be made in relation to the present application and my judgment until after the funeral, in order to minimise the risk of violence at the funeral; violence, in particular, directed against the applicant in the light of the police intelligence referred to earlier. In my opinion such an order should be made and remain in place until one hour after the conclusion of the suspension of the non-association orders.

22. Accordingly, I make the following orders:

1. Paragraph 8.1 of annexure A to Garling J's judgment is varied by suspending the prohibition on the applicant approaching, contacting, speaking to, or associating directly with Hassam Hamzy, Tareek Hamzy, and Ibrahim Hamzy only if Ibrahim Hamzy is permitted by this Court to be present at the funeral of Bilal Hamzy. Such suspension is limited to the hours of 9am to 3pm on 23 June 2021 and only whilst the applicant is present at the funeral of Bilal Hamzy at the Lakemba Mosque and at Rookwood Cemetery.

2. Suppression order made with respect to the hearing of the Defendant’s Notice of Motion dated 22 June 2021 and my reasons for judgment of 22 June 2021 pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground contained in s 8(1)(c), such suppression to be in place until 4.00pm on 23 June 2021.

**********

Decision last updated: 24 June 2021