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Hamzeh v The The King

Hamzeh v The The King

Case [2022] NSWCCA 232 31 October 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hamzeh v R [2022] NSWCCA 232
Hearing dates: 22 July 2022
Date of orders: 31 October 2022
Decision date: 31 October 2022
Before: Beech-Jones CJ at CL at [1]
Price J at [76]
Lonergan J at [118]
Decision:
(1) Grant leave to the applicant to raise grounds 1 and 2 of his notice of appeal.
(2) Dismiss the appeal.

Catchwords:
APPEAL – applicant stood trial with a co-accused on indictment that contained eleven counts – Counts 1 to 8 charged the applicant – Counts 1 to 3 charged the applicant with supplying drugs to the complainant – applicant pleaded guilty to Counts 1 and 2 – Count 3 charged the supply of the stupefying drug “GBH” or “G” – Count 4 charged the applicant with having sexual intercourse with a child above the age of 14 and below the age of 16 years in circumstances of aggravation – aggravating circumstance was that applicant took advantage of complainant being under the influence of a drug – Crown alleged that drug was the three drugs the subject of Counts 1 to 3 including “G” – Counts 5 to 8 charged the applicant with other sexual offences concerning the complainant – complainant was 14 years old – With Counts 1 to 4, Crown alleged applicant met her at train station, supplied her with drugs and had sex with her at home – With Counts 5 to 8, Crown alleged that he then took complainant to nightclub or brothel and had sex – applicant admitted sex the subject of Count 4 but denied supplying her with G, having sex at the “adult shop” and said he believed she was over 16 – jury convicted on Counts 3 and 4 and acquitted on Counts 5 to 8 – whether verdicts inconsistent – HELD: not inconsistent as verdicts explicable on basis that jury believed complainant but required additional proof on Counts 5 to 8 that sexual contact occurred – whether verdicts on Counts 3 and 4 unreasonable and could not be supported by the evidence – HELD: by all of the Court that it was reasonably open to the jury to find the complainant’s evidence as honest and that she told the applicant she was 14 years of age – by a majority that it was reasonably open to the jury to find that the applicant supplied her with “G” – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
AJ v R [2022] NSWCCA 136
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020]…

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 Hamzeh v The The King

Details

AGLC: Hamzeh v The The King [2022] NSWCCA 232
Case: [2022] NSWCCA 232
Decision Date: 31 October 2022

CaseChat Overview and Summary

The appeal arose from a trial involving the applicant, Hamzeh, and a co-accused, who faced an indictment containing eleven counts. The first eight counts charged the applicant with supplying drugs to a complainant and other sexual offences related to the complainant. The applicant pleaded guilty to the first two counts but denied the remaining charges. The trial concluded with the jury convicting the applicant on counts three and four, which involved supplying a drug referred to as "GBH" or "G" and having sexual intercourse with a child under 16 years of age. The jury acquitted the applicant on counts five to eight, which pertained to further sexual offences. The applicant challenged the consistency and reasonableness of the jury's verdicts.

The primary legal issue before the court was whether the jury's verdicts were inconsistent and unreasonable. The court had to determine if it was reasonably open to the jury to convict the applicant on counts three and four, given the evidence presented. Additionally, the court considered whether the acquittals on counts five to eight were explicable and consistent with the overall evidence. The court's analysis involved a detailed examination of the complainant's credibility, the applicant's defence, and the sufficiency of the evidence.

The court found that the verdicts were not inconsistent as they could be reasonably explained by the jury's acceptance of the complainant's testimony. The court held that it was reasonably open to the jury to find the complainant's evidence honest, particularly her assertion that she informed the applicant of her age. The majority of the court also found it reasonably open to the jury to conclude that the applicant supplied the drug "G". The court further determined that the acquittals on counts five to eight were explicable because the jury might have required additional proof regarding the location and circumstances of the alleged sexual acts. Consequently, the appeal was dismissed by the court.

The court dismissed the appeal and upheld the jury's verdicts, finding them to be consistent and reasonably supported by the evidence. The decision emphasised the importance of assessing the credibility of the complainant's testimony and the sufficiency of the evidence in reaching a verdict. The court's ruling ensured that the jury's findings were given due deference, provided they were reasonably open based on the evidence presented at trial.

Orders