Hamzy v District Court of NSW

[2013] NSWCA 130

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hamzy v District Court of NSW [2013] NSWCA 130

Hearing dates:

17 May 2013

Decision date:

17 May 2013

Before:

Basten ACJ

Decision:

(1) Revoke the suppression order made by this Court on 10 May 2013.

(2) Order that the information conveyed to this Court relating to information disclosed by Bassam Hamzy and other evidence led in the course of his sentencing proceedings, not be disclosed or published in any form until further order of this Court or the Court of Criminal Appeal.

(3) Otherwise dismiss the summons.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - criminal - suppression order - inconsistent orders - revocation of earlier order

Legislation Cited:

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

Category:

Procedural and other rulings

Parties:

Bassam Hamzy (Applicant)
District Court of New South Wales (First Respondent)
Director of Public Prosecutions (Second Respondent)

Representation:

Counsel:

Mr P Lange (Applicant)
Ms S Dowling (Second Respondent)
Mr M Lewis (Intervenor)
Solicitors:

AHA Taylor Lawyers (Applicant)
Director of Public Prosecutions (Second Respondent)

File Number(s):

2013/151904

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-05-10 00:00:00

Before:

Zahra DCJ

File Number(s):

2009/135919

Judgment

1. BASTEN ACJ: This matter was listed this afternoon by the Court, in order to consider the status of an order made on 10 May 2013. On that day, the Court made a suppression order in respect of "the evidence and transcript before Judge Zahra", the District Court judge who had sentenced the applicant on a number of matters that morning.

1. There were no papers before this Court, a matter which has now been attended to by the filing of a summons and notice of motion.

1. In its terms, the order made was ambiguous: it could have been understood as preventing publication of any account of the evidence or the submissions which appeared in the judgment of the sentencing judge. However, as would have been clear from the reasons given contemporaneously, that was not the intention. Rather, the assumption on which the order was based was that Zahra DCJ, having originally suppressed publication of the evidence given in the course of sentencing proceeding on 27 April 2012, on a basis required to be stated under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW), would not then have revealed in reasons delivered in open court, and without the protection of a non-publication order, matters which he did not intend to be made public. Nevertheless, I was prepared to accept that, if the original suppression order had ceased to have effect when judgment was delivered, there might still be a sound basis for continuing to protect that information which had been disclosed originally in closed court and was not referred to in the judgment. I further accepted that, although it might have been thought surprising, the District Court had omitted to continue the effect of the suppression order for that limited purpose. That was the reason for the order I made.

1. Since last Friday afternoon when the order was made, there have been two developments.

1. First, counsel appearing for the applicant had noted, as recorded in the reasons given last Friday, that any appeal from the making or failure to make such an order lay to the Court of Criminal Appeal. He indicated that his client intended to bring proceedings in that Court. That course was taken. However, with a degree of temerity, counsel made application to that Court on Tuesday, 14 May 2013, for a suppression order different from that made by me, with the ostensible purpose of extending the scope of its coverage. One possible response would have been to note that the proper place to review an order made by a single judge of this Court was before three judges of the Court: Supreme Court Act 1970 (NSW), s 46(4). However, a judge sitting in the Court of Criminal Appeal took a different view and made orders "on an interim basis" in the following terms:

"That the suppression orders and non-publication orders made by his Honour Judge Peter Zahra SC on 25 July 2011 and 27 April 2012 be continued until further order of the Court."

1. The order made on 25 July 2011 related to the identity of a person known only as "OS1". The order appears to have been unrelated to the present application. The order made in the District Court on 27 April 2012 prohibited disclosure of information given by Bassam Hamzy and other evidence led in the sentencing proceedings then on foot.

1. The record on JusticeLink does not indicate the full extent of that order, or that it was limited in any way or that it has been lifted or varied by the District Court. However, JusticeLink appears to be incomplete. The order was geographically limited and applied in terms "from today up to the date of passing of the sentence for which the offender appears before me". The order made in the Court of Criminal Appeal would appear to prevent disclosure of any information supplied in the course of the sentencing proceedings, including that disclosed in the judgment. Because there can have been no purpose in seeking any lesser order (given the order I had made on the previous Friday) I assume that to be the purpose and effect of the order made in the Court of Criminal Appeal.

1. If there had been publication of the content of the reasons for judgment on sentence between the date of my order and the date of the order in the Court of Criminal Appeal, an issue might arise as to the effect of the latter order. That can remain for another day. The issue at present is whether the order which I made should remain on foot. In my view it should not. It is not consistent with the order made by the Court of Criminal Appeal and to avoid any dispute as to its operation or effectiveness, I propose to revoke it.

1. The second matter which has arisen since the hearing last Friday in this Court is that, having had access to the transcript of the District Court proceedings of 27 April 2012 to determine the terms of the order actually made by Zahra DCJ, it became apparent to me that matters which were referred to in the course of the hearing in this Court were the subject matter of the suppression order made in the District Court and were probably not referred to in the reasons for judgment given in the District Court, which I still have not seen. Accordingly, I propose to make an order suppressing disclosure of such information supplied to me at the hearing on 10 May 2013 and recorded in the transcript. This will complete the present proceedings.

1. Accordingly, I make the following orders:

(1) Revoke the suppression order made by this Court on 10 May 2013.

(2) Order that the information conveyed to this Court relating to information disclosed by Bassam Hamzy and other evidence led in the course of his sentencing proceedings, not be disclosed or published in any form until further order of this Court or the Court of Criminal Appeal.

(3) Otherwise dismiss the summons.

**********

Decision last updated: 20 May 2013