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Hammoud v The Queen

Hammoud v The Queen

Case [2020] NSWCCA 339 17 December 2020

Appeal

Jurisdiction

Abuse of Process

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hammoud v R [2020] NSWCCA 339
Hearing dates: 27 November 2020
Decision date: 17 December 2020
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Bellew J at [72]
Decision:
Leave to appeal refused.

Catchwords:
CRIMINAL LAW – appeal pursuant to s 5F – interlocutory decisions – whether error in refusing an application for separate trials – whether failure to properly construe and apply ss 97, 101 of the Evidence Act 1995 (NSW) in finding that the evidence with respect to each of the complainants was admissible as tendency evidence – whether error in not excluding evidence due to risk of unfair prejudice to applicant pursuant to s 101 of the Evidence Act.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers & Responsibilities) Act 2002 (NSW)

Cases Cited:
BM v R [2017] NSWCCA 253
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
DSJ v R; NS v R [2014] NSWCCA 77
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Dent [2016] NSWSC 99
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Category: Principal judgment
Parties: Mustapha Hammoud – Applicant
Regina – Respondent
Representation:
Counsel:
G Wendler – Applicant
E Balodis – Respondent
Solicitors:
Criminal Law Group – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2017/315486;
2017/360392
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

05 May 2020

Before:

Hanley SC DCJ

File Number(s):

2017/315486; 2017/360392

JUDGMENT

BATHURST CJ: I agree with Hoeben CJ at CL.
HOEBEN CJ at CL:

Nature of proceedings

The applicant stands charged with six counts, four of which were alleged to have been committed against the first complainant on 16 October 2017, the other two against the second complainant on 22 April 1995. Both incidents involved an allegation that the applicant broke into the premises of the complainant and committed sexual offences against that complainant. The Crown justified the joinder by a tendency notice dated 29 October 2018.

The applicant sought a separate trial of Counts 5 and 6. His Honour Judge Hanley SC refused the application. The applicant now seeks leave to appeal from that decision, pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW).

Crown case

The applicant has been charged with the following offences:

Count No.

Offence/Act & Section

1

Aggravated break and enter and commit serious indictable offence (s 112 (2) of the Crimes Act 1900).

2

Assault with act of indecency ((former) s 61L of the Crimes Act 1900).

3

Assault with act of indecency ((former) s 61L of the Crimes Act 1900).

4

Act of indecency ((former) s 61N(2) of the Crimes Act 1900).

5

Aggravated break and enter and commit felony ((former) s 112 (2) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hammoud v The Queen

Details

AGLC: Hammoud v The Queen [2020] NSWCCA 339
Case: [2020] NSWCCA 339
Decision Date: 17 December 2020

CaseChat Overview and Summary

The case of Hammoud v The Queen involves an appeal by the defendant, Hammoud, against his convictions for sexual offences. The matter was heard in the New South Wales Court of Criminal Appeal. Hammoud was charged and convicted on multiple counts of sexual offences involving two complainants. The primary issue before the court was whether the trial judge erred in denying Hammoud's application for separate trials. The court was also required to consider whether the trial judge misapplied sections 97 and 101 of the Evidence Act 1995 (NSW) in admitting evidence concerning each complainant as tendency evidence. Furthermore, the court had to determine if the trial judge failed to exclude evidence that could unfairly prejudice Hammoud, as required by section 101 of the Evidence Act.

The court examined the trial judge's decision to deny a separate trial, considering the potential for prejudice and confusion that might arise from a joint trial. The court also assessed the trial judge's interpretation and application of sections 97 and 101 of the Evidence Act, focusing on the admissibility of evidence related to each complainant as tendency evidence. The court further scrutinised whether the evidence presented was unfairly prejudicial to Hammoud, and if it should have been excluded under section 101. The court concluded that there was no error in the trial judge's decision to refuse separate trials, as the joint trial was in the interests of justice and efficiency. Regarding the evidence, the court found that the trial judge properly construed and applied the relevant sections of the Evidence Act, and that the evidence did not unfairly prejudice Hammoud to the extent that it should have been excluded.

The court dismissed Hammoud's appeal, affirming his convictions. The reasoning and outcome of the case demonstrate the court's rigorous approach to ensuring that the trial process adheres to the principles of fairness and justice, particularly in cases involving multiple complainants and sensitive evidence. The court's decision highlights the importance of correctly applying the provisions of the Evidence Act to balance the rights of the accused with the need to admit relevant evidence. The final orders of the court upheld Hammoud's convictions, providing clarity and finality to the legal issues at hand.

Orders