Hijazi v Commissioner of Police (NSW) (No 2)

[2021] NSWSC 712

Supreme Court

New South Wales

Medium Neutral Citation:

Hijazi v Commissioner of Police (NSW) (No 2) [2021] NSWSC 712

Hearing dates:

21 May 2021

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1.   Order 3 of 7 May 2021 is varied such that Order 2 is suspended until 4pm on Friday 11 June 2021.

2.   Matter is adjourned for further Mention on Friday 11 June 2021 at 2pm before Wilson J.

3.   A Section 77 warrant is to be issued for the Plaintiff to appear via AVL on 11 June 2021.

Catchwords:

CRIME – extradition application – whether order for extradition to Western Australia should be further stayed pending finalisation of criminal proceedings in NSW – interests of justice

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (NSW)

Prohibited Weapons Act 1998 (NSW)

Category:

Principal judgment

Parties:

Mohamad Hijazi (Plaintiff)
Commissioner of Police (NSW) (Defendant)
Commissioner of Police (WA) (Intervener)

Representation:

Counsel:
P Lange (Plaintiff)
D New (Defendant)
R Coffey (Commissioner of Police (WA))

Solicitors:
Kadadi and Co Lawyers (Plaintiff)
New South Wales Police (Defendant)
Western Australian Police (Commissioner of Police (WA))

File Number(s):

2021/00125193

Publication restriction:

Nil

EX PARTE Judgment

1. HER HONOUR: On 7 May this year, the Court made orders in the Duty List suspending the extradition of the plaintiff to face serious charges in Western Australia. An extradition warrant had been executed upon him. A Local Court magistrate made an order for his extradition forthwith, and Mr Hijazi sought to have some delay of his extradition because of pending proceedings against him in the District Court in its Criminal jurisdiction at Campbelltown, then listed to commence on 10 May 2021.

2. The Court made orders suspending the execution of the warrant until 28 May, the logic being that the plaintiff was in this jurisdiction, he faced serious criminal charges, his trial was listed with priority, and his New South Wales criminal proceedings ought to be determined before he was removed from the State under an extradition warrant, thus frustrating the criminal process here.

3. The Court is advised that on the trial date before Campbelltown District Court with the matter proceeding to trial for judge-alone before his Honour Judge Coleman, the applicant entered a plea of guilty to one charge under the Firearms Act 1996 (NSW), and another two charges pursuant to the Prohibited Weapons Act 1998 (NSW). Those matters have been stood over until 10 June 2021 before Campbelltown District Court for a sentence date to be fixed.

4. There are some other matters before the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), the future of which is to be determined by the NSW Director of Public Prosecutions. Western Australian police officers have arrived in the jurisdiction today or in recent days, and now seek variation of order 3 of the orders that the Court made on 7 May 2021, such that they be permitted to remove the plaintiff from New South Wales tomorrow morning. Inquiries have been made of appropriate transport, and transport can be arranged for tomorrow morning to have Mr Hijazi taken to Western Australia.

5. He seeks, as he did earlier this month, to be permitted to remain in New South Wales, and to have his outstanding New South Wales prosecution concluded prior to any extradition being effected. The Court is again asked to resolve a dispute between the Western Australia Commissioner of Police and the plaintiff as to when his extradition should or could be effected. The Court is assisted by submissions from counsel for both of the Western Australian Police and Mr Hijazi, and the NSW Commissioner of Police.

6. The first defendant to the action is the Commissioner of Police for New South Wales represented by Ms New. The New South Wales Commissioner maintains his position, which is essentially a neutral one, although, to assist the Court, it has been pointed out that time is pressing for the Western Australian matters to proceed, and that there are legislation and agreements in place between the States to permit the transfer of prisoners. Mr Hijazi could be transferred back to New South Wales if that were required to face any sentence here, and indeed, he could appear via AVL.

7. Mr Coffey for the Western Australia Commissioner submits that the trial proceedings have now finalised, and it is not in the interests of justice to further delay the Western Australian prosecution by keeping the plaintiff in this State. It is submitted that he could be sentenced in the New South Wales Courts by appearing in Western Australia. The Court is advised that, currently, because of the outstanding extradition, the plaintiff is in custody in solitary confinement, and not able to make an application for bail with respect to the Western Australian matters. He has a grant of bail, as I understand it, for the New South Wales matters.

8. In my view very little in a practical sense has changed since the Court considered the matter on 7 May 2021. The trial may have resolved by some not guilty verdicts being returned and some pleas of guilty being entered, but there remain outstanding criminal proceedings in New South Wales for indictable offences, together with some summary offences also outstanding. Whilst I do not place great weight on whatever charges might be before the District Court on the s 166 certificate, the Court is advised that the plaintiff has pleaded guilty and has either been formally convicted or the conviction would flow from his pleas to three indictable weapons offences, offences which carry maximum penalties of imprisonment. My view is that those matters should be resolved. That was my view on 7 May 2021 when the Court heard the matter in the Duty List, and, as I say, I do not regard things as being significantly different now.

9. The fact is that the plaintiff is in this jurisdiction. This jurisdiction has outstanding criminal proceedings against him before an intermediate level criminal court and those charges should be able to be resolved. It may be that they will be resolved by way of a non-custodial penalty. It is difficult to say when the Director of Public Prosecutions for New South Wales has not seen fit to either convey his position with respect to the local prosecution to the Court, or to seek to intervene and announce an appearance. In the absence of information from the prosecuting authority as to the charges and the likely penalty that might flow the Court can only be guided by the maximum penalties applicable and they include, as I say, custodial penalties.

10. It seems to me that this application is premature. The attendance of Western Australian Police into New South Wales is premature. More will be known on 10 June 2021. If it is the case that there is a prospect of a non-custodial penalty being imposed, the District Court may be able to hear sentence proceedings on that date or soon after. I continue in the view that the interests of justice are best met by the local criminal proceedings for serious offences being resolved before the plaintiff is removed from the State and effectively put beyond the jurisdiction of the courts here.

11. I do not accept that it is an available option to have the plaintiff appear for sentence from Western Australia. As I understand it, he is bailed in New South Wales. The very first of his bail conditions no doubt, is that he appear before the court at Campbelltown on 10 June 2021. He would be in breach of his bail provisions if he was not in the jurisdiction on 10 June 2021, and I think it would be something of a discourtesy at the very least to the Campbelltown District Court for an offender due to face sentence before that jurisdiction to simply be whisked away to be dealt with in another state on unrelated matters.

12. I appreciate that the Western Australian authorities are anxious that a serious criminal prosecution be permitted to get underway in that State but it is not unknown, or even unusual, for criminal prosecutions in one state or another to be delayed whilst an offender is either prosecuted in a different state or serves a sentence in a different state. It is not ideal but there are competing interests of justice here, and since the plaintiff is in this jurisdiction and is now a convicted offender for indictable offences he should my view be sentenced, and then he can be removed.

13. I propose at this stage to vary Order 3 of the orders of the Court of 7 May 2021, such that Order 2 of those orders is suspended until 4pm on Friday 11 June 2021. On that date it would be expected that the parties and the Court would have better information as to what is likely to happen to the sentence proceedings and a more informed decision can be made as to whether or not the extradition should be expedited, or left to follow the finalisation of the New South Wales prosecution.

14. That is the order that the Court makes.

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Decision last updated: 23 June 2021