In an Application by Bassam Hamzy

[2013] NSWCA 121

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

In an Application by Bassam Hamzy [2013] NSWCA 121

Hearing dates:

10 May 2013

Decision date:

10 May 2013

Before:

Basten JA

Decision:

(1) Direct that the solicitor acting on this application forthwith file the necessary summons to commence proceedings in this Court.

(2) Order that the evidence and transcript before Judge Zahra in the matter relating to the applicant not be disclosed or published in any form until further order of this Court or the Court of Criminal Appeal.

(3) Otherwise dismiss the application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - criminal - sentencing proceedings completed - applicant obtained discount for assistance - sentencing judge lifted earlier suppression order - judgment delivered in open court - whether suppression order required to protect applicant

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8
Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125

Category:

Procedural and other rulings

Parties:

Bassam Hamzy (Applicant)

Representation:

Counsel:

P Lange (Applicant)
Solicitors:

Ali Abbas (Applicant)

File Number(s):

2013/151904

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-05-10 00:00:00

Before:

Zahra DCJ

File Number(s):

2009/135919

Judgment

1. BASTEN JA: On Friday 10 May 2012, the applicant sought (ex parte) urgent interim orders from this Court in circumstances to which reference will be made shortly. In substance, orders were sought under ss 7 and 8 of the Court Suppression and Non-Publication Orders Act2010 (NSW) and related to criminal proceedings which had concluded with sentences being imposed in the District Court in the early afternoon of 10 May, the day the application was made. No evidence was placed before this Court, which was required to act on the basis of statements from counsel.

1. The District Court proceedings involved the sentencing of the applicant on a number of charges in circumstances where he had provided assistance to the authorities for which he was granted a discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). During the course of the hearing in the District Court, non-publication orders were in force, which were lifted when judgment was delivered.

1. The matter came before the Court of Appeal on the basis that there is an appeal from the District Court under s 14 of the Court Suppression Orders Act, although that appeal will go to the Court of Criminal Appeal in due course, if it is pursued, pursuant to the approach adopted in Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125. As I had not been appointed to sit in the Court of Criminal Appeal, I exercised whatever jurisdiction this Court has under s 69 of the Supreme Court Act 1970 (NSW). Given that it would have been difficult to obtain a judge in the Court of Criminal Appeal at short notice, I did not consider that the availability of appellate relief in that Court was a reason for not granting orders if they should otherwise be made at this stage.

1. During the course of the proceedings in the District Court, the non-publication orders then in force apparently extended to, in the words of counsel for the applicant, a "blanket order" suppressing publication of what was said in those proceedings, both in evidence and in submissions. Although for an initial period the court was closed, for most of the proceedings it was not. The purpose of the non-publication orders was to protect an ongoing investigation and, presumably, to protect the identity of persons whose safety might be in question if they were identified.

1. The applicant was sentenced on 10 May by Judge Zahra, who delivered reasons and made orders orally, commencing at 10am and continuing through until 1.45pm. At the outset, he indicated that the reasons were being delivered in open court and that he was lifting the suppression order which was then in effect. The applicant was named in the announcement of the court sittings and it must have been known to those who were in the court who he was.

1. In the course of the reasons there may have been reference to the fact that he gave assistance. I do not know if there was any identification of the assistance in fact given. It is usual in my experience where assistance is provided that the sentencing judge will note that it has been taken into account and will on occasion detail the nature of the assistance given in a document which is not available publicly. That course has also been taken in the Court of Criminal Appeal. On some occasions, though more rarely, the name of the person being sentenced has been suppressed on the basis that he or she is an informant, disclosure of whose identity might give rise to concerns for his or her safety. That appears to have occurred in one of the cases involved in the same array of offending as that in which the applicant was involved.

1. Whether or not anything was revealed in the judgment which would cause concern for the applicant's safety is not a matter on which I could form an opinion in the absence of any material at all other than the assertions of counsel, who was not present in the District Court. The problem is exacerbated by the fact that the sentencing judge decided not to provide a hard copy of his reasons, which was due to occur at 2pm that afternoon, because it was indicated to him that an application would be made in this Court to seek a suppression order. It would have been appropriate at that stage for any solicitor who was present and acting for the applicant to have obtained a copy of the written reasons so that they could have been put before this Court. In the absence of that document or a solicitor's affidavit setting out the matters giving rise to concern, I was uninformed as to the precise nature of the concern which was sought to be raised.

1. What was clear, however, was that the applicant had sought a discount based on assistance and he himself must have provided evidence of that assistance to the sentencing judge. It also appears that submissions were sought by the sentencing judge as to whether, when reasons were delivered, any suppression order then in force should be lifted. Accordingly, the applicant was on notice that that might occur and provided written submissions in advance. (They were not before me either.) In these circumstances it was by no means clear that the way in which the matter came before this Court was one which necessitated, either by reason of some unexpected event which took place in the District Court, or by a step being taken by the sentencing judge which was out of accord with normal practice, even an interim suppression order being made.

1. A number of factors militated against making an order of the kind sought. First, to the extent that reasons had been delivered orally in open court and the applicant had been identified, the application to this Court was in one sense too late. Counsel for the applicant suggested that it was not necessarily too late if publication of the material had not then occurred. There was no evidence before me as to whether publication had occurred or not. I could imagine that there would be some public interest in the material contained in the judge's reasons for sentence and in the orders made.

1. Secondly, I did take account of the fact that the judge is a highly experienced criminal lawyer and trial judge. I did that not because, as counsel said, experienced judges do not err. All judges can make errors. The point was rather that, in the absence of any material which would indicate the basis upon which the present application was made, I did not think it appropriate to assume that an error of the kind which must now be presumed had taken place.

1. Thirdly, it is common practice to disclose the name of a person who is sentenced and the fact that assistance has been given without the use of a pseudonym. In some cases, as mentioned above, that practice is not adopted, but there is usually a good reason for that. The usual practice is not to disclose the nature of the assistance. The assumption that the nature of the assistance had been disclosed in the reasons for judgment, which have already been delivered in open court, was not one which I was prepared to make in the absence of any evidence which might support such a finding.

1. The final point raised by counsel was that there could be disclosure of the nature of the assistance, either from documents tendered in the course of the sentencing proceedings or from the transcript of the sentencing hearing. That would accord with the suppression order in place during the sentence proceedings. It was suggested that the evidence and transcript are no longer protected by a suppression order. That suggestion was assumed to be true for present purposes. It seemed unlikely that any member of the public would at that stage have had access to the evidence which was tendered in the sentencing hearing, or to the transcript. I was accordingly prepared to make a suppression order in relation to that material, on an interim basis and on the assumption that in some way this matter will come before the Court of Criminal Appeal in the near future. That order will not extend to the reasons for judgment delivered in open court, or the sentences imposed.

1. Accordingly, I ordered that the evidence given in, and transcript of, the sentencing hearing before Judge Zahra in relation to the applicant not be disclosed or published in any form until further order of this Court or the Court of Criminal Appeal. Otherwise I dismissed the application.

1. At counsel's request, I directed that this application be anonymised, although that step may have been inconsistent with the reasons given above and may have caused confusion as to the subject-matter of the orders. On reflection, that restraint should now be lifted.

1. The application was made orally. I direct that the solicitor acting on this application forthwith file the necessary summons to commence proceedings in this Court.

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Amendments

20 May 2013 - Amending CA file number

Amended paragraphs: Coversheet

Decision last updated: 20 May 2013