Hamzy v The Queen

[2019] NSWDC 7

District Court

New South Wales

Medium Neutral Citation:	Hamzy v R [2019] NSWDC 7
Hearing dates:	29 – 30 January 2019
Date of orders:	04 February 2019
Decision date:	04 February 2019
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	Application for Permanent Stay of Proceedings allowed.
Catchwords:	CRIMINAL LAW – Trial – Re-trial on new Indictment – Abuse of process – stay of proceedings.
Legislation Cited:	Criminal Appeal Act - s8(1) Criminal Code (C’th) 1995 - s11.2A; s 11.2A(7); s307.1(1); s313.3 Criminal Procedure Act - s20; s129; s130 District Court Act 1973 (NSW) - s 156(1)
Cases Cited:	Clark (a Pseudonym) v The Queen [2016] VSCA 96; 258 A Crim R 511 Gilham v R [2012] NSWCCA 131 Grassby v The Queen (1989) 168 CLR 1 Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 Parker v R [1997] HCA 15; (1997) 186 CLR 494 R v Anderson (1991) 53 A Crim R 421 R v Jacobi (2012) 114 SASR 227 R v Smith (1995) 1 VR 10 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Reid v The Queen [1980] AC 343 Romolo v R [2018] NSWCCA 3 The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717 UBS AG v Tyne [2018] HCA 45; 92 ALJR 968 Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54 Williams v Spautz [1992] HCA 34; 174 CLR 509
Category:	Principal judgment
Parties:	Mejid Hamzy - Applicant Regina (Crown) - Respondent
Representation:	Counsel: Mr P Boulten SC with Mr T Liu - Applicant Mr D Jordan - Respondent   Solicitors: Jeffreys Lawyers - Applicant Director of Public Prosecutions (Cth) - Respondent
File Number(s):	2013/318058

Judgment

1. This is an application by the accused, Mr Mejid Hamzy, for a permanent stay of criminal proceedings brought against him by the Commonwealth Director of Public Prosecutions.

2. On 31 October 2017 Mr Hamzy was tried in this Court before a jury for an offence contrary to s 307.1(1) in conjunction with s 11.2A of the Criminal Code (C’th) (the Code). The charge, as particularised in the indictment on which he was arraigned prior to the commencement of that trial, was as follows:

Between about 17 October 2012 and about 28 October 2012 at Sydney in New South Wales, [the accused] did jointly commit an offence with Gianmarco Romolo, in that they did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity.

3. On 16 November 2017, the trial judge discharged the jury after it failed to reach a unanimous verdict.

4. The Crown now proceeds to retry Mr Hamzy on a new indictment dated 2 August 2018. The retrial was listed to commence on 29 January 2019. The new indictment charges Mr Hamzy under the same provisions of the Criminal Code as in his first trial but has been amended to allege the following particulars [emphasis added to show amendment]:

Between about 17 October 2012 and about 28 October 2012 at Sydney in New South Wales, [the accused] did jointly commit an offence with Gianmarco Romolo, and unknown others, in that they did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity.

5. Additionally, on 23 January, 2019, the solicitor for the CDPP, by correspondence with the accused’s solicitor, advised that, “the Crown intends to rely on the statutory alternative provisions under s.313.3 Criminal Code 1995 if required; ie in the event that the jury is not satisfied of the indictment charge, we will invite them to find an alternative verdict on a standard Import commercial quantity of border controlled drug charge s.307.1(1) Criminal Code 1995.”

6. When the matter was called on for trial before me on 29 January 2019, the accused applied by way of a Notice of Motion dated 23 January 2019, supported by the affidavit of the accused’s solicitor, Mr Philip Green, sworn 23 January 2019, for a permanent stay of the proceedings on the indictment dated 2 August 2018.

7. Written submissions in support of the application were provided to the Court by counsel for Mr Hamzy. An outline of written submissions in opposition to the application were handed up by the Crown. Copies of those written submissions were marked respectively MFI 1 and MFI 2 and placed with the court file.

8. In summary, in support of the application, it was contended that any retrial of Mr Hamzy on the amended indictment would constitute an abuse of process and would otherwise cause impermissible unfairness warranting a permanent stay. In addition, it was argued that it would be an abuse of process to conduct the trial with the prosecution attempting to change its case so as to allege a different drug importation offence or to suggest that Mr Hamzy could be convicted without the need to establish that he was acting jointly with Romolo and/or others.

Principles relating to an application for a permanent stay

9. There was no relevant issue between the parties concerning the principles applicable on an application for a permanent stay.

10. The Court has the power to order a permanent stay of proceedings on at least two bases. First, it has an implied power to prevent an abuse of its process: see Grassby v The Queen (1989) 168 CLR 1 at 16-17. Second, s 156(1) of the District Court Act 1973 (NSW) provides, insofar as relevant, that “[a]t any stage of proceedings, the Court may, on terms, order that the proceedings be stayed.”

11. In Williams v Spautz [1992] HCA 34; 174 CLR 509, a majority in the High Court observed that “[t]he jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, "to prevent an abuse of process or the prosecution of a criminal proceeding...which will result in a trial which is unfair" [citations omitted]. See also the recent High Court decision in UBS AG v Tyne [2018] HCA 45; 92 ALJR 968 at [1].

12. The central question in an application of this kind is whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness to an accused, or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [23]. The authorities also recognise, in essence as a species of abuse of process, that a stay may be granted where the continuation of a prosecution is inconsistent with the recognised purposes of the administration of criminal justice to such an extent as to constitute an abuse of process: see Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30.

13. The “term ‘abuse of process’ encompasses…pursuing a criminal proceeding in a manner that is unfair, and [which] gives rise to oppression”: Clark (a Pseudonym) v The Queen [2016] VSCA 96; 258 A Crim R 511 at [16]. This recognises, as the High Court did in Williams v Spautz, that “[t]his does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process.” In other words, there is often overlap between the different bases for granting a stay.

14. What constitutes an abuse of process will vary depending on the circumstances. However, the authorities recognise that a Crown case that is doomed to fail may constitute an abuse of process and warrant a permanent stay: R v Smith (1995) 1 VR 10 at 14-16. In Smith, the Victorian Court of Appeal explained the applicability of this basis for a stay in circumstances where “the Crown has no evidence whatever which might be said to go towards proving some essential element of the offence”: per Brooking J at 15. Further, Byrne J articulated (at 29) the basis for a stay as “where it is plain beyond argument that the prosecution case suffers from some incurable vice. Such vice must be readily apparent and clearly fatal to the prospects of success of the prosecution.”

15. Generally, a court will only grant a permanent stay in an “exceptional” or “extreme” case where there is a “fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’”: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34. Before ordering a permanent stay, a court will consider whether any potential unfairness can be ameliorated by appropriate directions: R v Jacobi (2012) 114 SASR 227 at [34]-[59].

16. The nature and extent of any unfairness to the defendant must be weighed against the public interest in the trial of serious charges: Jacobi at [113]-[118]. However, the “public interest in holding a trial does not warrant the holding of an unfair trial”: Jago at p 31.

17. Although the authorities provide examples of certain categories of cases that will be amenable to a permanent stay, the “power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands”: Jago at 74 per Gaudron J.

Background

18. It is necessary to traverse some of the procedural history of the prosecutions of Mr Hamzy and Mr Romolo in order to appreciate properly the context in which the application for a stay is made.

19. In his first trial, Mr Hamzy was charged on a materially identical indictment to that of Gianmarco Romolo, who, as the original and amended indictments reflect, was alleged to be a co-offender. In the cases of both co-accused, the Crown alleged that Mr Romolo and Mr Hamzy jointly committed the alleged offence of importing a border-controlled substance.

20. Originally the matters were listed to be tried together. Mr Romolo applied for and obtained a separate hearing of his trial.

21. The same Crown Prosecutor appeared in the trials of both Mr Romolo and Mr Hamzy and the cases were conducted in a substantially identical fashion upon substantially identical evidence. In opening and closing addresses, the Crown, in both cases, identified the same factual and legal issues for determination in relation to the existence of an agreement between the alleged co-offenders to jointly commit the offence.

22. On 1 December 2016, a jury convicted Mr Romolo of the charge. Mr Romolo appealed against his conviction on the basis that the jury’s verdict was unreasonable or could not be supported by the evidence. In particular, the issue on appeal was whether the evidence at trial allowed the Crown to prove the existence of an agreement between the alleged co-offenders beyond reasonable doubt. The Court of Criminal Appeal heard Mr Romolo’s appeal on 22 November 2017 and, on 1 February 2018, gave judgment quashing Mr Romolo’s conviction and entering a verdict of acquittal: Romolo v R [2018] NSWCCA 3. The basis for quashing the conviction and ordering an acquittal was that the Crown, on the evidence adduced at trial, could not prove beyond reasonable doubt the existence of an agreement between the alleged co-offenders (being an essential element of the joint commission alleged).

23. In both Mr Hamzy’s trial and Mr Romolo’s trial, the evidence adduced by the Crown to prove the existence of an agreement centred on three things:

1. Alleged communications between the respective accused and FedEx to secure release of the shipment: Hamzy, transcript, p 290, 305.

2. Alleged usage by each accused of an email address in the name ‘Peter Suca’, which was accessed by different people at different times: Hamzy, transcript, p 291, 295.

3. Mr Romolo’s possession of a tax invoice from the Melt Chocolate Bar, a business with which Mr Hamzy had a connection: Hamzy, transcript, p 293.

24. The Crown, at the end of its closing address, summarised its case on the existence of an agreement between the alleged co-offenders in Mr Hamzy’s trial as follows: “[t]hey entered into an agreement to contact FedEx, each of them at certain times either by phone or by email. The receipt document, that is a critical document. The Melt Chocolate Bar receipt…Not a coincidence, I suggest.” (Transcript, p 307)

25. In quashing Mr Romolo’s conviction, the Court of Criminal Appeal (Macfarlan JA giving the principal judgment) analysed the evidence of an alleged agreement adduced in Mr Romolo’s trial and made the following conclusory observations:

… I do not consider that there was evidence upon which the jury could properly have convicted the applicant. In my view, the jury ought to have had a reasonable doubt as to the applicant’s guilt on the basis that it was a reasonable possibility, not negated by the Crown, that the [alleged co-offenders] were separately instructed by others and did not communicate with each other.

26. The Court of Criminal Appeal in Romolo declined to order a retrial despite the Crown contending that it would only change the “nature of the charge” but adduce the same evidence on a retrial. In rejecting this submission in support of a retrial, Macfarlan JA stated at [41] that changing the “nature of the charge” in a way that overcame the evidentiary defects “in this case would necessitate the Indictment being amended either to charge a different drug importation offence, or to delete the reference to Hamzy and therefore leave the charge as one that the applicant committed the offence jointly with an unknown person or persons.” His Honour observed that this would constitute a substantial and impermissible amendment to the indictment.

27. It appears to be common ground that it is intended the evidence in Mr Hamzy’s proposed retrial will be the same as the evidence adduced at his first trial. Therefore, the conclusion seems to me inevitable that the Court of Criminal Appeal’s reasoning in Romolo about the defects in the Crown’s evidence on the existence of an agreement applies with equal force to Mr Hamzy’s case.

28. The Crown appears to accept the force of that conclusion at least in so far as it applies to the charge as framed in the original indictment. At paragraph 16 of the Crown’s written outline it was conceded that “… if (against the Crown’s submission) the Court decides that the Crown is not permitted to amend the indictment (with the effect being the Crown is permitted only to proceed on the prior trial indictment without amendments) the Crown accepts that the prosecution case against this accused cannot proceed on the basis identified in Romolo.”

29. The accused contends that the corollary of the reasoning of the Court of Criminal Appeal in Romolo is that the Crown cannot prove the existence of any agreement between him (Mr Hamzy) and Mr Romolo beyond reasonable doubt on a retrial. It is contended that it does not matter that the Crown has added the element of “and unknown others” to the amended indictment. Joint commission of the alleged offence (and, therefore, agreement) with Mr Romolo remains the first element of the charge on the indictment.

30. By its written outline, supplemented by oral submissions, the Crown submitted that the application for a permanent stay is “mis-founded”, on the basis that all of the cases referred to by the defence relate to consideration of a court-ordered retrial following the quashing of convictions on appeal.

31. The Crown submits, accurately, that a substantial number of the cases relied upon by the accused in his submissions relate to intervention by an appellate court after (quashing of a) conviction by a court at first instance. It is asserted that research by the Crown has not been able to find any equivalent case where the accused was subject to retrial after a hung jury. Accordingly, the Crown submits that the cases relied upon by the accused simply do not apply or, alternatively, can be distinguished.

32. The Crown’s opposition to the application proceeds from the contention that upon a retrial in the circumstances that presently obtain there is no restriction on the Crown of the kind at least intimated by the application for a stay.

33. The Crown submits that the grounds upon which such a stay can be granted are materially different to those involved in the exercise of the discretion pursuant to section 8(1) of the Criminal Appeal Act as exercised in Romolo. In particular, it is submitted that the restrictions found to apply in the exercise of the Romolo discretion do not apply after a jury fails to reach a unanimous verdict.

34. Specifically, in this respect, the Crown contends that s 20 of this State’s Criminal Procedure Act (CPA) has present application because it contemplates amendment up until presentment without the need for granting of leave, including the substitution of an indictment (in sub-s 3). It is submitted by the Crown that this accords with caselaw in relation to the prerogative of the Crown to present an indictment in the form of its choosing and reference was made to the High Court decision in Maxwell v R [1996] HCA 46; (1996) 184 CLR 501, where at [26], per Gaudron and Gummow JJ, it was observed (removing citations) that:

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

35. Despite questions from the Court requesting appropriate assistance, the Crown was unable to demonstrate by reference to any authority whether the presentment contemplated by s 20 of the Criminal Procedure Act refers to the first presentment of an indictment in the Court or, as the Crown here contends, the presentment of any particular indictment before a particular jury, albeit in different trials in the one proceeding.

36. The CPA provides that an indictment must be presented within 4 weeks of a person being committed for trial in the Court: s 129(2).

37. Section 130 of the CPA provides that the Court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused is arraigned. It further provides that any orders that may be made by the Court in the absence of the jury for the purposes of the trial may be made before a jury is empanelled for the trial.

38. Section 130, sub-section (7) provides that the section does not affect the powers of the Court under s 21 – that is the power to order amendments of an indictment and related matters.

39. It seems to me, though the matter is far from clear, that a proceeding is likely relevantly commenced in this Court for all practical purposes at the time of the first presentment of an indictment and the arraignment of an accused upon it. Thereafter that proceeding continues until the Director determines that no further proceedings be taken, until the accused is acquitted or until he is convicted and consequently sentenced. Further, it seems to me that on a proper construction of s 20, by reference to its own terms and the other provisions that might sensibly bear upon its construction, the presentment it contemplates is the first presentment of an indictment, effectively commencing a proceeding in the Court.

40. If that construction be right, then a trial in proceedings that results in a hung jury, and any consequent re-trial, are trials in the one proceeding and subject to the powers provided by s 21, must proceed upon the indictment by which the proceedings were effectively commenced. Additionally, if this is, as I apprehend, the appropriate characterisation of the present situation, then the Crown’s contentions that the present application is misconceived, because it purports to intrude on what was called in submissions the “prerogative” of the Crown in respect of framing charges, are themselves misconceived.

Whether retrial would be an abuse of process

41. The first basis on which Mr Hamzy seeks a permanent stay of his retrial is that any retrial based on the new indictment is doomed to fail and is, therefore, an abuse of process.

42. In advancing that basis it is recognised and accepted by him that in order to obtain a stay on this basis the Court must be satisfied that there is “some incurable vice” in the Crown case or that there is some fundamental evidentiary deficiency which prevents the Crown from proving “some essential element of the offence”. It is submitted that such incurable defects exist in the present case, not only in respect of the original formulation of the charge, but also in the formulation advanced in the new indictment.

43. This submission is illustrated by reference to the reasoning of Fullerton J in Romolo where her Honour said at [56] that:

…in the way the Crown particularised the charge in the indictment and, ultimately, in the way it sought to prove the applicant’s complicity in a joint criminal enterprise to import the drugs, it elected to nominate only one person with whom the applicant was in agreement to commit that offence…It follows that by taking that approach the Crown assumed the burden of proving that particular agreement beyond reasonable doubt as foundational to seeking a verdict.

44. In the same case, Macfarlan JA, after restating the principles applicable to an unreasonable verdict ground of appeal, said at [42] that “assuming (as is necessary) that the evidence at the re-trial would remain the same as that adduced at the first trial…there would remain the same reasonable possibility that existed at the first trial, namely that the [alleged co-offenders] were independently instructed by a third person or persons, and did not communicate with each other.” This was so, as his Honour said, because “[a]bsent an amendment to the indictment, it would however remain necessary for the Crown to prove beyond reasonable doubt that the [alleged co-offenders] entered into an agreement to progress the drug importation.”

45. The accused’s submission, I think reasonably made, is that the amendment to the indictment in the present case does not negate the need to prove the existence of an agreement between Mr Romolo and Mr Hamzy, which remains an essential element in the formulation of the offence charged. This is because the new indictment simply adds the words “and unknown others” after naming Mr Romolo as an alleged co-offender. The accused relies in this respect on authority supporting the proposition that the ordinary meaning of the word “and” is conjunctive: Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at 1799; [2003] HCA 54 at [13]. Therefore, by adding this particular to the indictment, the Crown continues to assume the burden of proving an agreement between Mr Romolo and Mr Hamzy, as well as the additional burden of proving the allegation that Mr Romolo and Mr Hamzy also agreed with unknown others to jointly commit the alleged offence. In short, the central reasoning in Romolo regarding the need to prove the existence of an agreement between Mr Romolo and Mr Hamzy remains in this case.

46. The accused submits, again I think reasonably, that where there is no indication and no basis to assume that the Crown has any further or better evidence of the existence of an agreement which it could adduce at a retrial of Mr Hamzy, the Court of Criminal Appeal’s analysis and rejection of the evidence in support of proving such an agreement in Romolo applies squarely to the present case.

47. In these circumstances, the accused contends that the Crown case on a retrial of Mr Hamzy is not only weak but doomed to fail for containing an incurable vice that goes to an essential element of the offence charged, namely the element of joint commission on the basis of an agreement with Mr Romolo, as well as unidentified others.

48. The argument for the accused on this aspect of his application concludes with the proposition that in the circumstances just outlined any retrial of Mr Hamzy on the amended charge as particularised in the new indictment is doomed to fail and accordingly constitutes an abuse of process and should be stayed. It is submitted that the prosecution is doomed to fail because, for the reasons identified in Romolo (at [42]), the Crown cannot discharge its onus.

49. In response to this aspect of the application, that is whether a trial on the 2 August 2018 indictment was “doomed to failure”, the Crown noted that its case is as follows. First, that the accused and at least one other party entered into an agreement to commit an offence. Second, that the Crown does not intend to prove that the accused entered into such an agreement with a particular person (Romolo, or an unknown person), but that the inference to be drawn from the evidence is that he entered the agreement with another party.

50. It was submitted by Mr Boulten SC and Mr Liu, who appear for Mr Hamzy, that there is a latent unfairness in that formulation by the Crown, which has its source in, or arises by reason of, the inscrutability of any determination by the jury.

51. On the amended indictment now propounded, the Crown alleges that the accused agreed with Romolo and others to commit the offence. However, it submits on this application that it will not specify with whom Mr Hamzy agreed, and will simply ask the jury to conclude that he agreed with someone. In circumstances where the preponderance of the evidence will reflect conduct associated with the importation by Romolo, it is submitted, in my view cogently, that there is a very real likelihood that if the jury does conclude he reached an agreement with someone, some at least of the jury might conclude that he reached an agreement with Romolo, which leaves open the possibility that he will be convicted by reference to a state of affairs about which it has been conclusively demonstrated in the CCA the jury could not be satisfied beyond reasonable doubt.

52. I asked counsel for the accused whether that latent unfairness might be addressed by directions. The sort of direction I had in mind, and postulated, was one to the effect that as a matter of law the jury could not conclude beyond reasonable doubt that the accused reached agreement with Romolo, accordingly, unless they were satisfied beyond reasonable doubt that he reached agreement with some other, unidentified, person or persons, they must acquit.

53. In response to that question it was submitted, again in my view cogently, that by extension from the reasoning in Romolo there remains a fatal flaw in the re-formulation of the charge. It was submitted that even if my proposed direction were given, the prosecution is ultimately doomed to fail because there will perpetually remain a reasonably available hypothesis that cannot be excluded by the Crown. In other words, if the jury are told that they cannot conclude to the requisite standard that the accused agreed with Romolo, and in order to convict must be satisfied beyond reasonable doubt that he reached an agreement with some other unidentified person, the appropriate level of satisfaction could not be reached, because the Crown cannot exclude the possibility that he agreed with Romolo, rather than some other third party or parties.

54. In my assessment, the first basis of the application, that the prosecution on the “amended” indictment of 2 August 2018 is doomed to fail is made out and accordingly it is appropriate on that ground to grant a permanent stay.

55. Against the prospect that I am wrong in that conclusion, it is necessary also to consider the additional basis on which the stay is sought, and also the question of the availability of what the Crown characterises as a “statutory alternative” charge formulated by reference to s 307.1 of the Code without reliance upon s 11.2A(1). That alternative of course stands outside the reasoning which underpins the argument based on a foredoomed to failure ground.

Whether retrial would lead to irremediable unfairness to the defendant

56. As well as being an abuse of process on the grounds of being foredoomed to fail, the accused submits independently that any retrial on the Crown’s amended indictment, including upon any postulated alternative charge, would give rise to unacceptable unfairness to him and is otherwise unfairly oppressive.

57. Allied to, but perhaps additional to, this submission the accused further contends that a stay of the retrial is warranted on the basis that its continuation is inconsistent with the recognised purposes of the administration of criminal justice. That submission is made by reference, among other matters, to a passage from the judgment of Mason CJ in Jago (at p 30).

58. The core of these two further bases for the application for a stay were articulated in the following terms in the accused’s written submissions (MFI 1), at [33]:

The CDPP intended to try both Mr Hamzy and Mr Romolo together on a joint indictment. In 2015, Mr Romolo obtained a separate trial over the CDPP’s objection. Eventually, Romolo’s successful appeal against his conviction resulted in an order of acquittal. The CDPP have not and will not proceed with any different indictment against Romolo. To do so would be an abuse of process. Had Mr Hamzy stood trial with Romolo, the Court of Criminal Appeal would have also ordered his acquittal. Yet, because of the “hung jury” in Mr Hamzy’s trial, the CDPP are attempting to try Mr Hamzy in circumstances where, in order to obtain a conviction, there is a practical and legal need for them to circumvent the difficulties with their prosecution as identified in the Romolo appeal. The CDPP want another opportunity to cure problems in their case against Mr Hamzy. The proposed “re-trial” is not intended to replicate the charge nor the factual matrix of the charge that was the subject of the first trial.

59. It is in the context of that argument that it is submitted for the accused that the authorities on whether an appellate court, after quashing a conviction, should order a retrial to proceed on a different Crown case are pertinent and by analogy illustrate the nature of the unfairness to Mr Hamzy in the present case.

60. The accused submitted that those authorities recognise that “[i]t is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendants”: R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at 273 per Kirby J, referring to Reid v The Queen [1980] AC 343 at 349-350. Justice Kirby was, with the Chief Justice and Justice Callinan, in dissent in Taufahema. The decision of the majority in that case, and other authorities which precede and follow it (such as Parker v R [1997] HCA 15; (1997) 186 CLR 494; and Gilham v R [2012] NSWCCA 131) make clear that the broad proposition articulated by Kirby J is subject to some qualification, and that questions of degree must be considered in individual cases.

61. There has apparently been a division among members of the High Court, as reflected in particular in Taufahema, as to the extent to which qualification to that broad proposition should be tolerated. That division as to policy or principle, at least for present purposes, has been decided by the majority in Taufahema in favour of somewhat more flexibility than Chief Justice Gleeson and Callinan J in their joint judgment and Kirby J, in a separate judgment, were apparently prepared to countenance.

62. Notwithstanding that their Honours were in dissent in the result, there is a lengthy passage in the reasons of Gleeson CJ and Callinan J in Taufahema (at [35]-[38]) which it seems to me illustrates well the landscape within which decisions under s 8 are made and highlights some of the pertinent considerations, which, in my assessment, demonstrate the analogical value of like decisions to the present context.

63. It may be that the extent to which the dictates of justice will tolerate departure on a re-trial from the consequences of considered decisions taken in the initial formulation of a case will change over time according to the strictures, including practical and economic, that operate upon the administration of justice from time to time. The sort of development in this regard that I have in mind is the move in recent years, at least in the context of the administration of justice in civil jurisdictions, away from a more leisurely approach to litigation, maybe appropriate to times long past, to a philosophy that recognises expedition and economy along with justice as considerations important in the determination of discretionary and other issues in the prosecution of cases.

64. In an environment where the resources of this Court are so notoriously stretched and the consequent delays in matters coming on for trial and sentence so long, a more rigid rather than more leisurely approach to adherence by parties to considered decisions is appropriate and fundamental to the administration of justice in a way that does not visit oppression upon opposing parties.

65. Quite apart from institutional considerations, it must also be borne in mind that there are extensive costs and pressures associated with criminal prosecutions that inevitably impose significant burdens on accused individuals. Those costs and burdens become ever more significant in an environment of limited resources and inevitable court delays and serve as an additional dictate for more rigid adherence to considered decisions in order to avoid oppression that might inevitably arise otherwise.

66. In the context of considering the impact of delay in Jago v District Court (NSW) [(1989) 168 CLR 23 at p55] Deane J made the following pertinent observations:

In a case where an allegation of serious crime is involved, the burden of criminal proceedings first falls upon an accused at the time when they are threatened. It is intensified when the proceedings are commenced and personal liberty is either destroyed by imprisonment or compromised by the restraints involved in release upon bail. In Mills v. The Queen (1986) 1 SCR. 863, at pp 919-920, Lamer J. identified some of the other "vexations and vicissitudes" of pending criminal proceedings, namely, "stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction". If none but the guilty were accused of crime, the harshness of the burden would be alleviated by the consideration that the accused had brought it upon himself by his criminal conduct and subsequent denial of guilt and by the fact that account could be taken of pre-trial incarceration in the ultimate sentencing process. In truth, of course, the innocent as well as the guilty are accused of crime and the notions of fairness and decency which sustain our society dictate that an accused is presumed to be innocent unless and until he is convicted. For a person who is innocent of wrong-doing, the burden involves undeserved mental, social and often financial damage. And that damage will not be erased by ultimate acquittal. Life may be resumed but the mental, social and financial scars will ordinarily endure.

The subjection of an accused to the burden of criminal proceedings is, however, an unavoidable concomitant of the presumption of innocence and the public administration of criminal justice by the courts. It is something which the individual must accept as necessarily flowing from membership of a society in which individual and public rights and interests are protected by laws enforced by penal sanction. In a real world where institutional resources are limited, some undesirable delay in the administration of criminal justice is inevitable. That being so, the burden of criminal proceedings even where intensified by such delay cannot, without more, properly be seen as unfairly oppressive or as an abuse of the process of the particular court. To the contrary, it is a normal incident of the due administration of criminal justice and of that process. The stage can, however, be reached where delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable. If and when that stage is reached will depend upon the particular circumstances, such as when the relevant authorities first become aware of the alleged criminal conduct and of the material said to prove the accused's guilt and whether the charge is a complex or a simple one. When that stage is reached, an accused can, if he does not share responsibility for the delay, justifiably claim that the burden of pending criminal proceedings has passed beyond what can be justified in the due administration of justice.

67. Later in the same judgment, at p 58, his Honour added the following additional remarks:

The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed. 

68. In Jago, his Honour was concerned specifically with questions of delay and the impact it had from the point of view both of fairness in the conduct of a trial and as giving rise to oppression generally. The accused here does not found his argument upon delay per se, but the remarks in Jago have some resonance and analogous application when one is considering whether, and if so the extent to which, there may be oppression in allowing a retrial upon one or other of the Crown’s propounded reformulated bases. Those remarks also highlight, in my view, contrary to the submissions put by the Crown, the potential applicability in the present circumstances, by analogy of course rather than direct application, of cases decided under s 8 of the Criminal Appeal Act.

69. The Crown submitted that the exercise of the discretion under that section is quite different to the exercise of a power to permanently stay proceedings. At one level that is self-evidently correct. However, the real question must be whether there is correspondence among the matters that inform the exercise of each of the powers. In my view there plainly is; as consideration of cases like Taufahema and Jago demonstrates. To that extent it is reasonable and appropriate to look to those cases for guidance in the present context.

70. As already outlined, the present state of the law in the relevant respect has its articulation in the judgment of the majority in Taufahema.

71. The Court of Criminal Appeal in Romolo applied the principles in Taufahema in support of its decision to not order a retrial in Mr Romolo’s case. It did so in a way which seems to me at least provides persuasive guidance in the present case, if not outright compels a particular conclusion.

72. The submissions of the accused trace the principles considered by the CCA in Romolo, including as articulated in Parker v R [1997] HCA 15; (1997) 186 CLR 494 at 520; TWL v R [2012] NSWCCA 57 at [61]; R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ; and Gilham v R [2012] NSWCCA 131 at [651] and [652].

73. The authorities confirm that the Crown may “remould” its case on a retrial, but that it must retain the “basic factual premises that underlie the Crown case”: Gilham per McClellan CJ at CL at [655]. A retrial cannot be used by the Crown to reconstruct or “patch up” its case: Anderson at 453.

68. In the present case, the Crown’s amended indictment inserts the additional element of “unknown persons” as additional parties to the agreement alleged between Messrs Hamzy and Romolo. In that way, the new charge seeks to overcome the fundamental defect in its case against both Mr Hamzy and Mr Romolo, as identified by Macfarlan JA at [42] and Fullerton J at [56] in the Court of Criminal Appeal’s reasons, namely the nomination of “only one person with whom the [accused] was in agreement to commit that offence”. The asserted statutory alternative upon which the Crown has indicated an intention to rely also seeks to overcome that fundamental defect, but it does so in a different way. By the proposed formulation of the alternative count, the Crown seeks to propound a case that avoids altogether any reliance upon joint commission and the notion of agreement or understanding at the heart of the original formulation.

69. It is pertinent to observe at this point that in the circumstances of this case, I do not consider that s.313.3, upon which the Crown relies to advance its alternative case, can have any application as a matter of its proper construction. Mr Hamzy is currently charged with an offence of importation under s.307.1, albeit as a party to a joint agreement relying additionally upon the provisions of s.11.2A.

70. If a jury were to acquit on the count on the indictment, the accused could not be convicted of a different importation offence pursuant to s.313.3 as the “alternative charge” is not “another offence against this Part” within the meaning of that section.

71. Both reformulations of the Crown case now advanced – that is the charge on the amended indictment and the asserted alternative to it - were the subject of consideration, at least implicitly, in the reasons of Macfarlan JA in Romolo.

72. As the accused contends on this application (and as was effectively held by the CCA in Romolo), both the amendment to the indictment and the proposed “alternative” charge constitute a substantially different Crown case to that put to the jury in Mr Hamzy’s first trial by adding the element of “unknown persons” (in respect of the amended formulation) and by abandoning reliance upon a case framed around joint commission (in the proposed alternative).

73. Unlike in Gilham, the amendment to the indictment in this case (and the alternative case proposed) requires the Crown at a retrial to do more than simply qualify the evidence adduced at the first trial but not disturb the “basic factual premises that underlie the Crown case” (Gilham at [655]). In Gilham, McClellan CJ at CL (in dissent on this point) observed at [655] that “all that would change” in the Crown’s case there was the order in which certain events were said to have taken place, the location of certain evidence and the amount of time between two events occurring.

74. Here, the change to the Crown’s case is far more radical. The factual premises of the Crown’s case will necessarily change on a retrial as it introduces either the element of “unknown persons” as an essential ingredient of the joint commission of the alleged offence or, in the alternative, proceeds without resort to the notion of joint commission at all. Both formulations involve substantial change to the Crown’s case theory, which initially placed no importance on the presence of third persons captured on CCTV footage in, for example, the Go Internet Café. In a retrial on the amended indictment, the Crown must contend, contrary to its original case, that the third persons depicted in CCTV footage are significant to its case theory and it may even rely on the notion of a wider syndicate directing operations. None of these matters assumed any significance at the first trial. A case that proceeds without reliance upon allegations of joint commission also fundamentally reshapes the Crown case theory.

75. In declining to order a retrial in Romolo, the Court of Criminal Appeal alluded to the possibility that the Crown could amend the indictment, as they have now done in Mr Hamzy’s case, or “charge a different drug importation offence” (Macfarlan JA at [41]). The Court of Criminal Appeal’s reasons for declining a retrial on either basis was that “[a]s in Parker, both alternatives would involve ‘a substantial amendment to the indictment’ and not merely seek to characterise the facts…in a different way”. In other words, the amended indictment in the present case (likewise the foreshadowed alternative formulation) is precisely the type of change to the Crown case rejected by the Court of Criminal Appeal in Romolo as a basis for ordering a retrial because of the unfairness to that accused it would entail.

76. In the circumstances, a retrial on the amended indictment would allow the Crown to impermissibly “patch up” (Anderson at 453) or to “to supplement or reconstruct its case” (Gilham at [655]). Where this is found to be so, an appeal court would decline to order a retrial “not by reference to what might be called discretionary considerations but by reason of the unfairness of the criminal process that would otherwise follow.” (Parker at 519-520)

77. The accused submitted that the unfairness that would follow from a retrial of Mr Hamzy based on the amended indictment is heightened by the fact that Mr Romolo was ultimately acquitted of substantially the same charge, and that Mr Hamzy was never convicted of the first charge. However, on the new indictment, Mr Romolo remains an alleged co-offender. If Mr Hamzy faces a retrial on the new indictment in these circumstances, one aspect of the unfairness to him (distinct from the burdens associated with being re-subject to litigation in order to permit the Crown to amend its original considered though erroneous approach) flows from the inevitably inconsistent treatment of two alleged co-offenders whereby Mr Romolo is in a better position than Mr Hamzy because Mr Romolo was convicted by a jury and Mr Hamzy was not, despite the Crown case and evidence (and defects in the evidence) being substantially identical in each case. It was further submitted that this type of structural unfairness cannot be ameliorated by any directions available to the trial judge. As a consequence, it was submitted that allowing the Crown to proceed on the new indictment (or upon the proposed alternative to the charge in that indictment) will result in a trial that is inevitably unfair for other than merely forensic reasons. At the very least, it was submitted, the inevitably inconsistent outcomes for Mr Romolo and Mr Hamzy is another relevant circumstance which points to the overall unfairness of any retrial.

78. Having regard to the nature and scope of the inevitable burdens of being subject to criminal prosecution, as catalogued by Deane J in the passage from Jago outlined above, there is a powerful case that it is unjustifiably oppressive, and fundamentally contrary to the proper administration of justice to submit a presumptively innocent citizen repeatedly to those burdens, particularly on account of considered decisions of the prosecuting authorities poorly made.

79. It is not, and should not be, a normal incident of the due administration of criminal justice and of the criminal process generally that accused persons should be subject multiple times, with the attendant (and likely escalating) burdens each time, to pursuit of the same or similar allegations, on the same evidence, in order to enable a generally relatively more resource rich party, the prosecuting authority, to rectify patent errors in the considered decisions made by it in pursuit of the first agitation of those allegations.

80. Likewise, repetitive prosecution to overcome errors made through pursuit of considered but erroneous forensic decisions is not and should not be an unavoidable concomitant of the presumption of innocence and the public administration of criminal justice by the courts and it is not something which individuals must accept as necessarily flowing from membership of a society in which individual and public rights and interests are protected by laws enforced by penal sanction.

81. The proper administration of justice and the just disposition of the multitude of pending cases that have demands on the limited and stretched resources of the courts is not assisted by allowing a prosecuting authority to serially revisit its forensic failings.

82. Robust and efficient administration of justice obviously requires that the considered decisions of litigants be competently made, and by ensuring that parties are bound to those considered decisions.

83. It brings the system into disrepute to permit parties to patch up cases and to serially subject other litigants, in particular parties accused in criminal proceedings, to the substantial burdens associated with re-litigation of issues or allegations already advanced in one form or another.

84. Of course, standing counter to the considerations just outlined is the powerful public interest in ensuring that those guilty of serious crimes are brought to justice. A decision between the competing considerations involves difficult questions of weight and degree. Decisions of a kind on which minds might reasonably differ.

85. The different treatment of two participants in the one alleged enterprise is not unusual, but it is preferably avoided. Inconsistent treatment and inconsistent outcomes, while strictly permissible and contemplated in particular contexts, as evidenced for example by s 11.2A(7) of the Code, is not generally to be encouraged. All the more so if to permit inconsistent outcomes involves allowing a party to revisit considered forensic decisions poorly made and subjecting another party repeatedly to the burden of defending allegations already litigated, albeit on an erroneous foundation or formulation.

86. As I have noted above, both alternative formulations of the Crown’s efforts in this case to patch up (see eg, Anderson per Gleeson CJ at p 453) the deficiencies of its deficient original formulation of the cases against respectively against Mr Romolo and Mr Hamzy were expressly considered by Macfarlan JA; that is a formulation embracing the addition of a reference to “others” and a formulation removing entirely any reference to joint commission.

87. Notwithstanding the recognition of a strong prima facie case, which it must be observed appears to be substantially stronger in the case of Romolo than the present accused, the CCA plainly determined that justice was not served by permitting those formulations to be advanced in a retrial of Mr Romolo.

88. Both those reformulations were adjudged to represent a substantial variation to the case originally advanced. I respectfully agree.

89. Notwithstanding the different context in which the question arises, here on a stay application (or an application for leave to amend, had it been so propounded) and on the exercise of the power pursuant to s 8 of the Criminal Appeal Act in Mr Romolo’s case, there is a powerful case that justice demands the same conclusions for substantially the same reasons. Both cases were run identically, on identically framed charges and by reference to the same evidence.

90. Notwithstanding the powerful public interest favouring an alternative conclusion in both contexts, in this case, as the CCA effectively concluded in Romolo, I consider the correct conclusion in balancing the countervailing considerations that arise on the second basis on which the application is made is to uphold the application for a permanent stay of the proceedings on the amended indictment (which conclusion, for the reasons outlined above, must extend also to the “alternative” basis on which the case is propounded).

91. Of course, as noted, the “alternative” charge advanced is not strictly amenable to the argument that a case on the amended indictment is foredoomed to fail. Ultimately, however, as I hope the foregoing makes clear, my conclusion on the second basis on which the application is brought extends beyond the amended indictment to specifically also include a charge framed in the terms of the alternative contended for by the Crown. In other words, no matter how a charge is formulated, it is inappropriately oppressive, and inconsistent with the due administration of justice to re-subject an accused to all the burdens of fighting a second criminal trial in order to circumvent the demonstrated flawed decision making at the heart of the Crown’s first agitation of the case. It is tantamount to making the criminal process an instrument of oppression to allow a prosecuting authority to be free of the constraints of its own considered forensic decisions. That is even more acutely the case here where to do so would result in inconsistent outcomes in what are for all intents and purposes identical situations, save in the way the question has arisen in each case. The combination of all of these circumstances (that is the considered forensic choices on which the prosecution was originally brought; the significant burdens that would attach to being subject to a trial calculated only to alleviate the consequences of those erroneous choices; and the inconsistent outcomes that would result in substantially indistinguishable circumstances) are sufficiently exceptional in my view to justify the conclusion I have reached on the second basis advanced for the application.

92. If I am wrong in the conclusions I have reached in relation to both foundations for the application, the final disposition of this matter will be inevitably delayed. This is of course regrettable. However, it was a possibility that doubtless occurred to the accused when the considered decision was taken by him to make this application.

Conclusion

99. For the reasons set out above, I conclude that the Court should allow the application and take the exceptional course of ordering a permanent stay of these proceedings. I order accordingly.

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Decision last updated: 06 February 2019