R v Hamzy - [2004] NSWCCA 243

CITATION: REGINA v Bassam HAMZY [2004] NSWCCA 243

HEARING DATE(S): 8 June 2004

JUDGMENT DATE:
23 July 2004

JUDGMENT OF: Mason P at 1; Levine J at 143; Kirby J at 144

DECISION: Appeal against conviction dismissed.; Grant leave to appeal against sentence but dismiss sentencing appeal.

CATCHWORDS: APPEAL AGAINST CONVICTION - whether similarity evidence wrongfully admitted - whether directions to jury on identification evidence were erroneous - leave to raise ground of appeal refused as no objection taken at trial - whether documents wrongfully admitted - only prejudicial because probative of guilt - whether judge erred in failing to recount details of criminality of witness - whether judge erred in failing to tell jury which evidence provided corroboration - whether judge failed to fully sum up evidence of witnesses - whether accused was incompetently represented - whether trial miscarried - whether verdict unsafe - APPEAL AGAINST SENTENCE - whether sentence unduly harsh and severe - whether judge failed to take accont of youthfulness, rehabilitation or gravity of the offence.

PARTIES :
REGINA
Bassam HAMZY

FILE NUMBER(S): CCA 60199 of 2002

COUNSEL: Crown: P Ingram
Appellant: M Ramage QC

SOLICITORS: Crown: S Kavanagh
Appellant: G Goold

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70054/00; 70023/01

LOWER COURT
JUDICIAL OFFICER : Bell J

CCA 60199/02

MASON P
LEVINE J
KIRBY J

Friday 23 July 2004

REGINA v HAMZY

Judgment

1 MASON P: Following trial before Bell J and a jury the appellant was convicted on each of five counts in an indictment charging him with:

• the murder of Kris Toumazis

• wounding Nicholas Lambos with intent to do grievous bodily harm

• discharge of a pistol, with intent to do grievous bodily harm to Arthur Kazas

• threatening to use an offensive weapon, namely a firearm, with intent to prevent or hinder lawful apprehension

2 The first four offences occurred in Oxford Street Paddington at about 3.00am on 30 May 1998. The fifth offence occurred while the appellant was in custody awaiting trial on the other offences.

The Crown case in brief

3 Kris Toumazis (the deceased), Nicholas Lambos, Arthur Kazas, Anthony Panzarino and Joseph Natoli were at the “Mr Goodbar” nightclub in Oxford Street Paddington in the early morning of Saturday 30 May 1998. There was an argument between Kazas and a group of the appellant’s friends that continued on the footpath as the club was closing. The deceased and his companions got into Kazas’ vehicle. One or two of the other men (not including the appellant) violently kicked the vehicle and then ran away towards the northern side of Oxford Street. The deceased and his friends got out of the vehicle and gave chase.

4 The appellant was standing near the northern side of Oxford Street. He also started to run away with his friends. When the deceased began to close in on the appellant near the corner of Oxford Street and West Street, the appellant produced a…

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 R v Hamzy

Details

AGLC: R v Hamzy [2004] NSWCCA 243
Case: [2004] NSWCCA 243
Decision Date: 23 July 2004

CaseChat Overview and Summary

The case of R v Hamzy involved the appellant who was convicted of various criminal offences and subsequently appealed both his conviction and the sentence imposed. The appeal was heard in the court of criminal appeal. The primary issues for the court to determine included whether certain evidence was improperly admitted, the adequacy of the directions given to the jury regarding identification evidence, and whether the trial was conducted fairly and justly. Additionally, the appeal questioned the severity of the sentence and whether the trial judge had appropriately considered mitigating factors such as the appellant's age, potential for rehabilitation, and the seriousness of the offence.

The court examined whether the trial judge erred in admitting evidence that was deemed similar to the charged offences, which could potentially prejudice the jury. It was argued that the directions provided to the jury on the weight to be given to identification evidence were insufficient. However, the court ruled that these grounds of appeal could not be considered because the appellant had not objected to these issues at the trial level. Furthermore, the court assessed whether documents were improperly admitted, noting that while they might have been prejudicial, they were also highly probative of the appellant's guilt. The court also considered whether the trial judge had erred by not recounting the criminal history of a witness or by failing to inform the jury which pieces of evidence were considered corroborative. Additionally, the court reviewed the trial judge's summation of the evidence and whether the appellant's legal representation was inadequate, ultimately concluding that the trial was conducted correctly and the verdict was safe and reliable.

The appeal against the sentence focused on whether the sentence was excessively harsh and severe, given the appellant's youth, the potential for rehabilitation, and the gravity of the offence. The court weighed these factors against the nature of the crimes committed and concluded that the sentence was appropriate under the circumstances. The appeal against the conviction was dismissed, and the sentence was affirmed.

Orders