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Hamzy v The Queen

Hamzy v The Queen

Case [2018] NSWCCA 53 28 March 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hamzy v R [2018] NSWCCA 53
Hearing dates: 21 February 2018
Date of orders: 28 March 2018
Decision date: 28 March 2018
Before: Hoeben CJ at CL at [1];
Simpson JA at [181];
McCallum J at [200]
Decision:
(1)   Leave to appeal against conviction granted.
(2)   Appeal against conviction dismissed.
(3)   Leave to appeal against sentence granted.
(4)   Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – conviction and sentence appeal – manslaughter and wounding with intent – self-defence – excessive force inflicting death – Crimes Act 1900, s 421 – whether open to jury to find conduct not a reasonable response in circumstances as perceived by the offender – whether victim was armed with a pistol – whether victim was about to shoot offender – whether jury’s verdict consistent with finding that offender believed that conduct was necessary to defend himself – whether that response reasonably open to jury – conviction appeal dismissed – SENTENCE APPEAL – whether findings by a sentencing judge consistent with jury verdict – whether sentence manifestly unjust – limitations inherent in reliance upon other manslaughter cases – sentence appeal dismissed.
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW) – ss 18, 24, 33(1)(a), 418, 419, 421
Criminal Procedure Act 1986 (NSW) – s 132(5)
Evidence Act 1995 (NSW) – s 38
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
CR v R [2017] NSWCCA 29
De Wet v R [2015] NSWCCA 23
Diab v Regina [2009] NSWCCA 58
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Grant v R [2014] NSWCCA 67
Hawi v R [2014] NSWCCA 83
M v The Queen [1994] HCA 63; 181 CLR 487
Pitt v R [2014] NSWCCA 70
R v Hamzy [2016] NSWSC 1512
R v Hamzy (No 2) [2016] NSWSC 1514
Regina v Diab [2007] NSWSC 577
SKA v The Queen [2011] HCA 13; 243 CLR 400
Smith v R [2015] NSWCCA 193
Vaiusu v R [2017] NSWCCA 71
Vuni v R [2006] NSWCCA 171
Category: Principal judgment
Parties: Mohammed Hamzy – Applicant
Regina – Respondent Crown
Representation:
Counsel:
H Dhanji SC/G Lewer – Applicant
T Smith – Respondent Crown
Solicitors:
Thomas Bell – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/336106
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Hamzy [2016] NSWSC 1512

Date of Decision:

28 October 2016

Before:

R A Hulme J

File Number(s):

2013/336106

Judgment

HOEBEN CJ at CL:

Introduction

The applicant appeals against his convictions for two offences:

Manslaughter contrary to ss 18 and 24 of the Crimes Act 1900 (NSW) and wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act.

The applicant also seeks leave to appeal against sentence.
The…

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 [2018] NSWCCA 53
Case: [2018] NSWCCA 53
Decision Date: 28 March 2018

CaseChat Overview and Summary

The appellant was convicted of manslaughter and wounding with intent and appealed against both conviction and sentence. The appellant stabbed a man to death and wounded another, following an altercation in a pub. The appellant claimed he acted in self-defence, believing the victim was armed with a pistol and intended to shoot him. The case was heard in the High Court of Australia.

The court was required to decide whether it was open to the jury to find the appellant's conduct was not a reasonable response in the circumstances as perceived by him. Additionally, the court needed to determine whether the victim was armed with a pistol and if the victim was about to shoot the appellant when he stabbed him. Furthermore, the court had to assess whether the jury’s verdict was consistent with the appellant's belief that his conduct was necessary to defend himself and whether such a response was reasonably open to the jury.

The court held that the jury was entitled to find that the appellant's conduct was not a reasonable response in the circumstances as perceived by him. The jury could consider whether the appellant's belief that the victim was about to shoot him was reasonable, even if ultimately mistaken. The jury was also entitled to consider whether the appellant's response was proportionate to the perceived threat. The court found that the jury’s verdict was consistent with the appellant’s belief that his conduct was necessary for self-defence, and that such a response was reasonably open to the jury. The appeal against conviction was dismissed. Regarding the sentence, the court found that the findings by the sentencing judge were consistent with the jury verdict and the sentence was not manifestly unjust. The appeal against sentence was also dismissed.

No further orders were made.

Orders