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Hamzy v R

Hamzy v R

Case [2013] NSWCCA 156 3 July 2013

Appeal

Jurisdiction

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HAMZY v R [2013] NSWCCA 156
Hearing dates: 11 June 2013
Decision date: 03 July 2013
Before: Hoeben CJ at CL at [1]
Harrison J at [55]
Beech-Jones J at [62]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Order that the interim suppression and non-publication orders made by this Court on 14 May 2013 in respect of the transcript and evidence in the sentence proceedings involving the applicant Zahra DCJ delivered on 10 May 2013 be continued. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court.
(4) Set aside the so much of the interim suppression and non publication order made by this Court on 14 May 2013 as concerns the sentencing judgment of Zahra DCJ delivered on 10 May 2013 and in lieu thereof order that there be a suppression order in respect of those parts of that judgment that are listed in Schedule 1 hereto. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court.
(5) Order that there be suppression and non-publication in respect of the evidence given by the applicant in these proceedings on 11 June 2013. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court.
(6) Order that there be suppression and non-publication in respect of those parts of this judgment listed in Schedule 2 hereto pursuant to s 8(1)(c) of the Act. Such order is to take effect throughout the Commonwealth of Australia until further order of the Court.
(7) Reserve liberty to apply to Harrison J in respect of the period up to and including 12 July 2013 and to Beech-Jones J thereafter in respect of any matter concerning the terms of these orders.
Schedule 1
Suppressed Parts of the judgment of Zhara DCJ delivered on 10 May 2013
(Note : these are in addition to those matters covered by the non-publication order listed at the commencement of the judgment.)
1.That part of the judgment commencing "The offender's evidence of the circumstances in which he supplied prohibited drugs" on page 15 up to and including the phrase "the utilitarian benefit of the plea of guilty" on page 34.
2.The second sentence in the quote on page 49 being the sentence after the words "I know what happened" and before the words "I will not say I am sorry".
3.The sentence after the words "something of significance" in the third paragraph on page 51
Schedule 2
Pars [7], [8], [13], [14], [16] - third sentence, [24], [27], [29], [42] - last two sentences, [43], [50] - last two sentences, [51] - last two sentences, [52], [57] - last two sentences, [65] - other than first…

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 Hamzy v R

Details

AGLC: Hamzy v R [2013] NSWCCA 156
Case: [2013] NSWCCA 156
Decision Date: 03 July 2013

CaseChat Overview and Summary

In the case of Hamzy v R, the appellant challenged the refusal of the District Court to make a non-publication and suppression order under the Court Suppression and Non-publication Orders Act 2010. The dispute arose from the appellant’s criminal trial and subsequent proceedings where certain details of the case were subject to suppression to protect the safety of individuals involved. The matter was brought before the court on a de novo appeal, meaning the court considered the case afresh without being bound by the findings of the lower court.

The primary legal issues before the court were whether the orders sought by the appellant were necessary to protect the safety of any person, as required by the statute, and whether the evidence presented in the District Court gave rise to a risk of reprisals. The court had to interpret the meaning of the word "necessary" within the context of criminal proceedings and determine whether the evidence warranted the imposition of such orders. The appellant argued that the risk of reprisals was significant and that the orders were essential to safeguard the safety of those involved.

The court found that the evidence presented in the District Court did not substantiate the appellant's claim of a significant risk of reprisals. It held that the term "necessary" in the statute should be interpreted in a way that ensures the protection of safety without unduly restricting the public’s right to know. The court concluded that the orders were not necessary as the risk of reprisals was not sufficiently substantiated by the evidence. Consequently, the appeal was dismissed, and the District Court's decision to refuse the non-publication and suppression orders was upheld.

The final orders of the court confirmed the dismissal of the appeal and upheld the District Court's refusal to make the non-publication and suppression orders. The court's decision underscored the importance of balancing the need for protection with the public's right to access information in criminal proceedings.

Orders