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Hamzy v The Queen

Hamzy v The Queen

Case [2019] NSWDC 7 4 February 2019

Abuse of Process

Stay of Proceedings

Criminal Law

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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

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.
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.

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

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 The Queen

Details

AGLC: Hamzy v The Queen [2019] NSWDC 7
Case: [2019] NSWDC 7
Decision Date: 04 February 2019

CaseChat Overview and Summary

In the case of Hamzy v The Queen, the dispute arose from a trial that was deemed to be potentially unfair due to significant procedural errors. The appellant, Hamzy, was facing criminal charges, and the matter was before the High Court of Australia. The core issue was whether the trial judge should have stayed the proceedings due to an abuse of process, leading to an unfair trial. This appeal stemmed from a decision by the Court of Appeal that had dismissed the appellant's application for a stay of proceedings.

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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Citations

AGLC Citation

Hamzy v The Queen [2019] NSWDC 7

Most Recent Citation

Tuck v The Queen [1999] TASSC 135

Cases citing this decision · 1 of 1 shown

Tuck v The Queen
[1999] TASSC 135 Para 1

…ted pattern of criminal conduct, can they be said to constitute an offence which is continuing in nature, like supplying or trafficking in drugs (eg, Hamzy v The Queen (1994) 74 A Crim R 341) nor, with respect, do I see the cases fitting into the anomalous category of cases referred to by Kirby J. The references he cited w…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

UBS AG v Tyne
[2018] HCA 45 Para 11

…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].…
Romolo v R
[2018] NSWCCA 3 Para 22

…peal 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 do…
Clark v R
[2016] VSCA 96 Para 13

…ompasses…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…
R v Jacobi
[2012] SASCFC 115 Para 15

…ing 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].…
Gilham v R
[2012] NSWCCA 131 Para 60

…he 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 indivi…
TWL v R
[2012] NSWCCA 57 Para 72

…cused 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].…
R v Edwards
[2009] HCA 20 Para 12

…ether 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 contin…
R v Taufahema
[2007] HCA 11 Para 60

…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 Cal…
Victims Compensation Fund Corporation v Brown
[2003] HCA 54 Para 45

…tion 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 Hamz…
Parker v The Queen
[1997] HCA 15 Para 60

…linan, 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…
Maxwell v The Queen
[1996] HCA 46 Para 34

…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:…
Williams v Spautz
[1992] HCA 34 Para 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 " [citat…
Jago v District Court (NSW)
[1989] HCA 46 Para 12

…rposes 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.…
Mills v The Queen
[1986] HCA 71

…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 restrai…
Grassby v the Queen
[1989] HCA 45 Para 10

…der 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…
[1980] AC 343
[1980] AC 343 Para 60

…iciencies 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 othe…

Legislation cited in this decision · 1

District Court Act 1973 (NSW)
1 mention (from Para 10)

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