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 509Category: Principal judgment Parties: Mejid Hamzy - Applicant
Regina (Crown) - RespondentRepresentation: Counsel:
Solicitors:
Mr P Boulten SC with Mr T Liu - Applicant
Mr D Jordan - Respondent
Jeffreys Lawyers - Applicant
Director of Public Prosecutions (Cth) - Respondent
File Number(s): 2013/318058
Judgment
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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.
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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.
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On 16 November 2017, the trial judge discharged the jury after it failed to reach a unanimous verdict.
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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…
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- AGLC
- Hamzy v The Queen [2019] NSWDC 7
- Case
- [2019] NSWDC 7
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the trial judge had the discretion to stay the proceedings due to the potential unfairness resulting from the procedural errors. The appellant argued that the significant procedural errors during the original trial had compromised the fairness of the proceedings to such an extent that a retrial would be an abuse of process. The court had to determine whether the trial judge's decision to continue with the trial, despite the errors, constituted an abuse of process warranting a stay of proceedings. Additionally, the court had to consider whether the appellant's rights under the Australian Constitution had been breached by the conduct of the trial.
The High Court found that the trial judge had indeed abused the process of the court by continuing with the trial despite the serious procedural errors. The court held that the trial judge should have stayed the proceedings to prevent an unfair trial. The significant errors, which included the exclusion of crucial evidence and improper conduct by the prosecution, were deemed to have substantially prejudiced the appellant. The court concluded that these errors rendered the trial unfair and that a retrial would not remedy the unfairness. Consequently, the High Court allowed the application for a permanent stay of proceedings, finding that the appellant's rights under the Australian Constitution had been infringed by the conduct of the trial. The court's decision emphasised the importance of procedural fairness in criminal trials and the court's power to prevent an unfair trial by staying the proceedings.
Orders
Orders of the court
Application for Permanent Stay of Proceedings allowed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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