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

• conspiring with Radwan Zraika to murder Khaled Hammoud.

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 gun and began firing.

5 The deceased was struck by one bullet to the chest and a second to the buttock area, although the shots were not necessarily fired in that order. Each was fired at close range and in relatively quick succession. The first shot was fired at the deceased while he was standing. The second was fired pointing down at an angle to the deceased who was on the ground at the time. The chest wound was fatal (count 1).

6 Another bullet struck Mr Lambos (count 2), who kept running into the side streets north of Oxford Street. It was only later when Lambos was apprehended by a police officer, who thought mistakenly that he might have been the gunman, that the bullet fell from his right shoulder onto the ground.

7 Bullets were also fired in the direction of Kazas (count 3).

8 The appellant brandished the firearm with intent to prevent or hinder his lawful apprehension when Detective Senior Constable Barwick, who was sitting in a vehicle on Oxford Street at the time, called out to him to stop (count 4).

9 Subsequently, when the appellant was in custody he conspired with Zraika to murder Khaled Hammoud. The intended victim was the brother of one of the men with the appellant on the night of the shooting incident. He was believed to have given damaging information to the police and to be a likely Crown witness (count 5).

Summary of the Crown case

10 The Crown case was strong. The appellant, who gave evidence at trial, did not dispute that he had been at the nightclub with his companions. He also agreed that he had been one of the group who ran away from the men who gave chase after the car-kicking incident. However, he denied that he had a gun and said that it was his companion Nedhal Hammoud who did the shooting. Identification of the shooter was the central issue on the first four counts.

11 The Crown case had seven interlocking elements.

(i) Identification evidence

12 Many people were in Oxford Street at the time of the shooting, but most were significantly affected by alcohol and had fleeting observations of the incident. There was wide variation as to the detail and sequence of the shooting incidents and as to the description of the gunman and his companions.

13 In these circumstances, the Crown did not place significant weight on the identification evidence of most of these witnesses. The appellant was content to approach their evidence in similar manner at trial. The jury were directed accordingly (SU 41-2) although they were also reminded of the differing evidence of the several witnesses as to identification of the gunman. The appellant now seeks to rely on some of the descriptive evidence in support of the ground of appeal that the “verdict was unsafe”.

14 Attention was, however, focussed at trial upon the “identification evidence” of two of the witnesses. Kazas was a member of the deceased’s group. He was the driver of the car that was kicked by the appellant’s companions. It appears that he had not consumed alcohol that evening. Kazas had been arguing with Nedhal Hammoud inside and later outside the nightclub. The gunman had fired at him from a distance of five to ten metres (count 3).

15 On 20 May 1999 Kazas saw 80 to 100 males at the Silverwater Remand Centre. He made a positive identification of the appellant, saying that he was one of the men in the vicinity of the shooting incident whom he had seen just before the actual shooting 20 to 30 metres west of the intersection of Oxford and West Streets (Tr p139). Kazas did not purport to identify the appellant as the gunman. But he said that the gunman was not the man with whom he had been arguing earlier that evening. The evidence identified that man as Nedhal Hammoud. If the shooter he saw was the appellant, it placed him much closer to the shooting than his own evidence did. The jury were reminded at the close of Kazas’ evidence (Tr p172) and in the summing up (SU 33, 52) that Kazas did not purport to identify the appellant as the shooter.

16 Detective Barwick was driving a police vehicle west in Oxford Street just prior to the shooting. He stopped adjacent to the intersection of Oxford and West Streets. He saw the muzzle flash and heard the reports of two shots from a firearm. He looked across to the scene of the shooting and observed a group of people, one of whom was carrying a pistol. He saw the gunman fire two more shots. One was fired at chest height and the other down at about 45º aiming at the ground. He then saw the gunman run in an easterly direction away from the group. As he ran he fired three more shots over his shoulder in the direction of the group. Two other males ran away with the gunman.

17 As the three men ran down West Street Detective Barwick called on them to stop. They paused about 25 – 30 metres away. The gunman then raised his pistol and pointed it towards the officer (count 4). Barwick discharged one round from his service weapon in response. The three males then fled from West Street into Holdsworth Lane and escaped. Detective Barwick had the gunman under observation for about 10-15 seconds. The lighting in the area was fairly good.

18 On 18 May 1999 Detective Barwick went to Silverwater Remand Centre and there observed about 40 males. He selected one of the men (the appellant) observing that he was “very similar” (Tr pp287, 289) and “pretty similar” (Tr pp288, 289) to the gunman.

(ii) Evidence of admissions made to Nedhal Hammoud, Khaled Hammoud and Kader Chakaik

19 Nedhal Hammoud, Kader Chakaik and Mohammed Ajaj were with the appellant at the nightclub. They and Nedhal’s brother Khaled were called as witnesses for the prosecution. Bell J gave strong warnings as to the dangers of accepting their uncorroborated testimony. These warnings were amply justified (cf Evidence Act, s165) given the fact that the three witnesses who had been at Oxford Street had a motive to minimise their involvement in the death of the deceased. The Hammoud brothers had pleaded guilty to being accessories after the fact to the murder of the deceased and had received sentences that took account of their willingness to give evidence against the appellant. The witnesses had also given accounts to the police and/or at committal that were at variance with their trial testimony.

20 Nedhal Hammoud was with the appellant and others at the nightclub. He said that one of their group (Kader Chakaik) ran across the street and kicked the car. The men in the car chased them and he, Chakaik and the appellant fled with the appellant running behind them. He heard gun shots after he had turned into Holdsworth Lane.

21 Later that morning he met up with the appellant whom he saw with an automatic pistol in his hand. The appellant put the pistol behind a tree in the street. Nedhal, the appellant and a young woman stayed the night at a motel. While there, the appellant told him, “I shot the guy because of you guys, because of you”. At that stage the appellant had the gun down the front of his trousers. He talked about going overseas and told Nedhal: “It’s your fault you know you’ve got to stick by me”. Nedhal said he was scared and agreed to go overseas with the appellant.

22 Khaled Hammoud was Nedhal’s younger brother. He had not gone to the nightclub on 30 May 1998. He said that Nedhal and the appellant came to his house during that day and borrowed one of his vans. The appellant gave a pistol to a man who was at the house at the time. The appellant told Khaled about the incident on Oxford Street and said that “he couldn’t run anymore, his shoulder was broken and he shot a couple of people” (Tr p406). Khaled saw Nedhal and the appellant in Melbourne a few days later, where he assisted in urgent arrangements for the two men to fly to Lebanon.

23 Kader Chakaik was at the nightclub and he had kicked Kazas’ vehicle outside the club. When the occupants of the car chased them he ran past Nedhal and then past the appellant. He jumped over a wall and ran to his car that was parked in Holdsworth Lane. He said that the appellant was behind him when he heard shots fired. He gave several contradictory accounts to the police, some of which included admissions by the appellant that the appellant was the shooter.

24 Both trial counsel had suggested to the jury that the quality of the evidence of these witnesses was such that the jury would not act upon it except where an item of evidence received support from a satisfactory independent source. The trial judge endorsed this approach. She was not asked to spell out the categories of evidence capable of constituting “independent” corroboration (cf SU 38).

(iii) Evidence of Emma Lund

25 This young woman was Khaled Hammoud’s de facto partner at the time of the shooting. She was at home on Saturday 30 May 1998 when Khaled and Nedhal, and later the appellant, arrived. The appellant had a gun which she saw him pass to the others during a conversation.

(iv) Admissions in documents written by the appellant

26 Three documents in the appellant’s handwriting were tendered in the Crown case. They contained admissions that he had been the shooter.

27 Exhibit AA was a two page document discovered at the home of the appellant’s uncle on 5 March 1999. It is addressed to “Mrs Julie Senia, Consular Officer”. She was employed by Austrade in Atlanta during the period January to April 1999 when the appellant was in custody in Miami awaiting extradition to Australia. The Australian Consulate-General in Atlanta has responsibilities that included assisting Australian citizens arrested in Miami. The document is a draft letter setting out an account of the incident in Oxford Street that includes reference to “Kader” [Chakaik] kicking the car and “Ned” [Hammoud] and Kader running off followed by the appellant. On the Crown case, the letter was an attempt to resist extradition by putting forward a somewhat anodyne account of the appellant’s role. Nevertheless, explicit admissions as to the appellant’s role in the shooting appear from the following passages:

… I noticed about 5 or more guys behind me and that is when the terrible accident happened. I didn’t mean for it to happen but it did, I feel great simpefy and remore that anything like this should happen but there was five of them and I was alone, alone with a dislocated shoulder. I don’t think anyone should take a life that god has given. I know now that anything could happen when you act upon fear that you do a lot more damage than you expect. I think everynight what his parents and family are going through and I now I would never would like to have to be in that situation. I always think what would have happed to my family if it was I on the other side of that gun.
….
Now that this is something that I am going to have be punished for. Sometime along the way I have hurt and damaged someone without meaning to do so, but then we are all damaged goods, life damages us, people damage us, and we even damage ourselves as I have.…

28 Exhibits YY and ZZ were part of the appellant’s property when extradited from Miami at the end of March 1999. Each contains quotations from the works of Plato.

29 Exhibit YY contains a passage about the effects of alcohol, concluding:

… and seeing where my life was threatened by five men chasing me I thought that they were coming to kill me, I cannot remember what happened after.
Amnesia.

30 Exhibit ZZ quotes from Plato’s Laws. A discussion of voluntary and involuntary actions in relation to homicide includes the following:

He who does not bottle up his wrath but expands it all at once, or on the spot and without premeditation, is like the involuntary homicide: ‘Hence the difficulty of deciding wheather (sic) my client was deliberate or if he tried to avoid it’.

The appellant conceded that the final sentence were his own words and not a transcription from Plato.

31 In his evidence, the appellant explained Ex AA as having been written at the behest of Nedhal Hammoud. The jury were entitled to reject this explanation based upon their assessment of the appellant’s credibility. Ex YY’s discussion about the defences of self-defence and intoxication and Ex ZZ’s discussion of accident created further problems for the “false confession for Nedhal’s sake” explanation. The jury had been directed that, even if they did so, they must nevertheless be satisfied the confession was truthful before accepting it as such (SU 112).

32 The appellant explained Exx YY and ZZ as the product of comparative religious/legal studies undertaken whilst in custody in Miami. He was confronted in cross-examination with the need to explain why he concerned himself with the particular topics in Plato’s writings and why he had interpolated his own comments referable to the incident at Paddington suggestive of defences of accident, self-defence and intoxication. His explanations were less than satisfactory and the jury would have been entitled to reject them.

(v) Evidence of conspiracy to murder

33 The conviction for conspiracy to murder Khaled Hammoud (count 5) was based on the following evidence.

34 In a taped telephone conversation made from overseas on 29 November 1998, the appellant’s sister Mejida told him that his picture was in the paper. Exhibit 5 is a copy of the Daily Telegraph dated 28 August 1998. It contains a sketch of the suspected gunman. The appellant replied to his sister: “Yeah, because fuckin’ Ned’s brother drew the picture.”

35 On 18 August 2000 an undercover police officer using the pseudonym of “Jack” was introduced to the appellant at Silverwater Remand Centre by a person named “Phong Pham”. The conversation of the three men was recorded by means of a listening device fitted on “Jack”. There are gaps in the recording and additional evidence about the conversation was given by “Jack”.

36 “Jack” gave evidence that during the conversation the appellant whispered: “I need someone dead ASAP… we will use the word ‘rob’ for ‘kill’ … it will all be given to you outside”. This conversation was not on the tape. The tape and its transcript (Exx DD and EE) nevertheless contain damning evidence including:

“Jack: So you don’t care how I do it, as long as he’s dead …
What do you want done with the body? ….


Do you want the body found or…

Appellant: Doesn’t matter.”

There is discussion about timing, payment and the location of the victim with the assistance of “Rodney” (Radwan Zraika) (effectively identifying the intended victim as Khaled Hammoud).

37 Later intercepted telephone calls between the appellant and “Jack” and between the appellant and Zraika provided overwhelming evidence of the appellant’s conduct in arranging with Zraika to have the victim killed.

38 Bell J directed the jury that the evidence of the conspiracy to murder Khaled Hammoud could be used in relation to counts 1 to 4 on certain conditions. Those directions are not the subject of complaint.

(vi) Evidence of flight

39 On the day after the accident the appellant and Nedhal Hammoud went first to a property in Yass, thence to Melbourne. They flew to Beirut on 1 June 1998. The jury were directed that the appellant’s flight was available to them when considering counts 1 to 4 provided they were satisfied that the only inference open was that the appellant acted in consequence of his consciousness of guilt on the basis that he had been the gunman (SU 39-40).

40 Nedhal Hammoud gave evidence explaining that he agreed to accompany the appellant to Lebanon because he was scared of the appellant. The appellant said that he had gone to Lebanon simply because Nedhal was angry with him for letting Nedhal down by running away at the time of the incident in Oxford Street; and because he did not want to see Nedhal “posted”.

(vii) Admissions in intercepted telephone calls to family members

41 Several telephone calls were intercepted during the period when the appellant was abroad and before his extradition from the United States. They contain admissions as to the appellant’s role as the shooter:

• On 3 October 1998 the appellant told “Nathan”:
… between me and you, if I get caught I’m doin’ thirty years for that other thing.
He agreed in cross-examination that this was a reference to the Oxford Street shooting.
• On 8 October 1998 the appellant asked his mother:
Where are all my pistols?
• On 10 October 1998 the appellant asked “Nathan”:
Did you tell him Ned [indecipherable] turned dog? … Tell everyone, Bro I want to let the word get out that he’s a dog …. But he’s dead, Bro, he’s dead.
• On 27 November 1998 the defendant asked his sister and his mother about the whereabouts of his bullets and guns.
• In a call to his sister on 29 November 1998 the appellant discussed the teachings of the “Muslim book” about the divine punishment for various categories of homicide. The appellant referred to a right of self defence. The conversation implied mutual recognition that the conversation was not a hypothetical one.

42 The appellant’s attempts to explain these conversations in his evidence were unconvincing.

Summary of the defence case

43 The appellant gave evidence at trial. He agreed that he was at the nightclub with his friends in the early hours of 30 May 1998. He denied that he possessed a gun and denied shooting anyone.

44 He said that there had been an argument inside and outside the club, particularly involving Nedhal Hammoud. Nedhal and Chakaik had kicked the car. Nedhal, Chakaik and the appellant “took off” when the boys inside the car got out. The appellant said that he was ahead of his companions and that he heard shots after he had turned left into West Street and then right into Holdsworth Lane. It was his case that Nedhal Hammoud had fired the gun.

45 The appellant denied producing a gun or hiding it in bushes later that day. He said that Nedhal Hammoud had shown him a gun and admitted to having used it at Oxford Street. The two men went to Nedhal’s uncle’s property at Yass and subsequently agreed to go to Lebanon. The appellant said that he went with Nedhal because he was “not going to leave [Nedhal] posted” or “high and dry” (Tr pp1265-6).

46 The appellant said that his shoulder was dislocated in Lebanon, not at the time of the shooting. Later, in cross-examination, he gave answers effectively agreeing that the shoulder could have been hurt before the incident at Oxford Street.

47 The appellant gave explanations for the intercepted telephone calls and the documents containing admissions. As regards Ex AA, he said that it was part of a deal whereby Nedhal offered him $20,000 to write a letter containing a false confession. The appellant had no intention of returning to Australia when he wrote it. He could not remember why the letter was addressed to a consular officer. As regards Exx YY and ZZ, these were musings in relation to comparative religion and had nothing to do with any admission of responsibility for shooting the deceased.

48 In relation to count 5, the appellant said that the discussion related to a plan to rob Khaled Hammoud to enable Phong Pham to re-pay a debt of $10,000 owed to the appellant. He denied that there was any discussion about killing.

49 Eleven grounds of appeal were pressed. It is convenient to group some of them and to address them in a particular order.

Ground 3: Wrongful admission of Detective Barwick’s “similarity” evidence
Ground 5: Error in permitting Detective Barwick to give evidence that he “recognised” the accused
Ground 4: Erroneous directions on “identification” evidence

50 Detective Barwick had good opportunity to see the gunman at Oxford Street, particularly when the gunman, who had been told to stop, turned to face him. The lighting was adequate and the shooter was under observation for 4-5 seconds from a distance of about 25-30 metres. The officer recorded a detailed description in a statement made on 30 May 1998.

51 On 15 June 1998 Detective Barwick was shown three videos containing photographs of men. He identified five photographs as containing pictures of men who looked “similar” to the gunman. These videos were put into evidence.

52 On 15 July 1998 he watched a video which included a photograph of the accused, but did not identify the accused in it.

53 On 18 May 1999 the officer attended the Metropolitan Remand Centre of the Silverwater Prison and observed men in the exercise yard. The whole procedure was videotaped. There were approximately 40 persons in the yard. One man (the appellant as it was established) was identified, the officer describing him as looking “pretty similar” / “very similar” to the gunman. He observed some differences in hair length.

54 Bell J ruled this evidence admissible at the conclusion of a voir dire hearing. She later delivered reasons (on 26 June 2001). The suspect had refused to take part in an identification parade. Her Honour recorded the evidence of Detective Barwick in detail in her reasons. The officer’s opinion of the similarity of the appellant with the man seen shooting at Paddington had been variously expressed. It was nevertheless “visual identification evidence” in light of the statutory definition in the Evidence Act referring to “an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where [the offence was committed]”. Her Honour declined to exclude the evidence in the exercise of discretion or because its probative value was outweighed by the danger of unfair prejudice to the accused. She indicated the bases upon which the detective’s evidence would be put before the jury.

55 In support of Ground 3, the appellant submits that the trial judge failed to appreciate the unreliability of the evidence of “similarity” in circumstances where the witness had not identified the appellant in the video he saw on 15 July 1998. It was further submitted that the judge failed to properly appreciate the degree of prejudice stemming from the detective’s evidence.

56 The suggestion that her Honour failed to appreciate the difficulties with the police officer’s evidence is quite untenable. At par 16 of her reasons she records the fact that the officer’s initial description of the gunman did not match the description of the accused in certain respects; the officer’s failure to identify a photograph of the accused in July 1998; and the time that elapsed between the shooting and the identification at the prison. These and other matters relied upon in opposition to the admission of the evidence were carefully weighed at par 18 of her reasons. I detect no error of fact or approach. The judge was entitled to conclude that the jury could have regard to this evidence, accompanied as it was by a video tape of the prison identification and carefully-framed directions as to the dangers of accepting the evidence. Section 137 of the Evidence Act was carefully, and in my view correctly, addressed by her Honour. Requisite warnings in accordance with s116 were given to the jury (see below).

57 The following evidence was given, without objection, when Detective Barwick gave his evidence in chief in relation to the visit to Silverwater Prison on 18 May 1999 (Tr pp286-7).

Q. What were you asked to do?
A. View the yard of one of the remand centres and see if I could identify the person I’d seen fire the shots in Oxford Street.
…
Q. What observation did you make?
A. When I initially began to look out the window – when I first approached the window I saw a person who I recognised and that person walked straight underneath me, underneath the office out of view and I stayed there for about another 15 minutes until that person came back out with another male and walked around the yard again and I indicated to another officer the person who I recognised.
…
Q. The person that you say you recognised, what was your recognition?
A. Well, said they were very similar to the person that I’d seen firing the shots in Oxford Street.
Q. Was there some difference in ---
A. The hair was different. At the time I viewed them out at the Remand Centre the hair was noticeably different on the person that I indicated. The hair was longer, there was – it was now parted in the middle and sort of flopped over on both sides longer (indicating), whereas at the scene it was fairly neat and just short on the sides and short on the top, either swept back or just about an inch long (indicating).

58 Detective Barwick was cross-examined as to the nature and degree of similarity in his observation (Tr pp288ff). He was not cross-examined as to the similarity (if any) between the shooter he observed and Nedhal Hammoud (the shooter according to the appellant).

59 Ground 5 focuses upon the officer’s statement that he saw a person “who I recognised”(Tr p286). The appellant submitted that the trial judge should immediately have directed that the evidence be struck out or that the jury should ignore it. If that direction was not given then, it should have been given later in the trial.

60 This ground lacks any substance and r4 should be applied, given that no objection was taken at trial nor was the direction sought (see generally R v Mostyn [2004] NSWCCA 97 at [49]-[54]. The particular answer amounted to no more than a shorthand description of Detective Barwick’s thought-processes. Neither he nor the jury were adverting to the distinction sometimes drawn in the common law between evidence of resemblance and that of identification. The ensuing examination in chief and cross-examination fleshed out the grounds and the limits of the officer’s conclusory view as to recognition. It was based upon “similarity” as described. The summing up made this crystal clear (see below).

61 Ground 4 seeks to challenge the directions given to the jury in relation to this evidence. For reasons set out below, I have concluded that leave to raise this ground should be refused in all the circumstances given that no objection was taken at trial nor was any re-direction sought.

62 Bell J gave the jury firm and clear directions on the matter (at SU 29-33). She prefaced her remarks by describing Detective Barwick’s evidence as that of selecting the accused from among a number of men in the yard at the prison “as being a person whom he thought was very similar to the person whom he had seen firing the shots in Oxford Street”. Her Honour continued:

There are some important directions that I want to give you about that body of evidence.
Evidence that an accused has been identified by a witness or, as in this case, where the evidence falls short of identification but is an expression of opinion as to the accused’s resemblance to an offender, being evidence which is disputed by the accused, is evidence which it is necessary for you to approach with special caution before you accept it as reliable.

Her Honour proceeded to explain the need for that caution and to give directions as to the reliability of the officer’s evidence that were in accordance with s116 of the Evidence Act and that are not the subject of dispute. Senior counsel for the appellant made it clear in this Court that there would have been complaint had these directions not been given.

63 In giving the directions, Bell J nowhere described Detective Barwick’s evidence as that of an actual identification. Indeed she emphasised that the evidence was “at its highest… no more than that the accused person is a person who, as [Detective Barwick] put it on one occasion is pretty similar to the gunman” (SU 31). Her Honour then took the jury to the descriptions of the gunman given by Detective Barwick on various occasions. The jury were also reminded about the evidence of the “similar” photographs in the videos and of the officer’s failure to select the appellant’s photograph when shown the video on 15 July 1998. The directions concerning Detective Barwick concluded with the following (SU 33):

I emphasise it would not be open to you to reason from Detective Barwick’s evidence, if you accepted it, that the accused was in fact the gunman. Detective Barwick’s expression of opinion as to the physical resemblance between the accused and the gunman could not of itself establish beyond reasonable doubt that the accused was in fact the gunman. The Crown does not rely on it in that sense. In the Crown’s submission to you, the evidence of Detective Barwick is consistent with other evidence upon which the Crown relies and I take you to those matters in due course when I remind you of the basis upon which the Crown puts its case.

See also SU 110.

64 In support of Ground 4 the appellant submits that the trial judge failed to bring home to the jury that Detective Barwick’s evidence was not put forward on the basis that he believed the person seen at the prison was the shooter. There was also complaint that the trial judge failed to mention that the officer himself drew a distinction between “identifying somebody and some degree of similarity” (Tr p301).

65 There is no substance in these contentions. Detective Barwick’s evidence was admissible, it was adequately put to the jury, and its weight was a matter for the jury who were properly instructed as to its dangers, generally and in the particular factual context.

66 The appellant cited Pitkin v The Queen (1995) 69 ALJR 612 and R v Cook NSWCCA unreported, 24 August 1998. These authorities pre-date the Evidence Act, focus on the different issue as to whether a conviction was “unsafe or unsatisfactory”, and are distinguishable on their facts (see R v Bilal Skaf & Ors [2004] NSWCCA 74 at [152] – [154]).

67 Detective Barwick’s evidence did not call forth a need for a circumstantial evidence direction, as the appellant submits (citing R v Turner (2000) 76 SASR 163, a case distinguishable on its facts).

68 Within Ground 4 there was also complaint in relation to the directions concerning the identification evidence of Kazas. Bell J said (at SU 33):

While dealing with this topic of identification evidence, the law requires me to also inform you of the need for special caution with respect to evidence of Arthur Kazas who identified the accused as one of the men whom he had seen in the vicinity of the incident in Oxford Street that night. Mr Kazas did not purport to identify the accused as the gunman, he merely identified him as having been present in the vicinity at the time. The same considerations dictate the need for caution in accepting this evidence of identification as I have dealt with in taking you to the evidence of Detective Senior Constable Barwick. You are bound to take those matters into account in evaluating the weight you give to Mr Kazas’ evidence of his identification of the accused.

69 This direction was factually correct and it drew no complaint at trial. The appellant submits that the effect of the direction was that the jury were likely to view Kazas’ evidence as corroborative of Barwick. The sting of this complaint is illusive, but in any event it finds no support in the language used by the learned trial judge.

70 I do not accept the submission that the judge effectively directed the jury that Barwick and Kazas corroborated each other in the matter of identification.

Ground 6: Error in admitting exhibits AA, YY and ZZ

71 I have already indicated the relevance of these documents as containing admissions by the appellant.

72 The appellant’s written submissions raise various arguments in support of this Ground. It is somewhat unclear as to the extent to which they were pressed at the hearing of the appeal (see CCA Tr pp14-15). They have no substance.

73 Suffice it to say that the documents were traced to the appellant and were admittedly in the appellant’s handwriting; the fact that Ex AA is a photocopy does not detract from its admissibility; nor does the appellant’s evidence given later at the trial that he wrote the document at the behest of Nedhal Hammoud who promised to pay him $20,000. The weight of the admission in light of that evidence was a matter for the jury.

74 These exhibits were highly prejudicial to the appellant, but that was only because of their impact as probative of guilt.

Ground 7: Error in failing to remind the jury of the evidence concerning Nedhal Hammoud’s criminal activities

75 Nedhal Hammoud’s evidence was summarised at length to the jury (SU 74-80). This included reference to evidence, elicited in cross-examination, about lies he told in earlier statement to the police. The jury were also reminded about the discounted sentence following his plea of guilty to charges of being accessory after the fact to the murder of the deceased and to the wounding of Mr Lambos.

76 Defence counsel had cross-examined this witness at considerable length in relation to independent acts of criminal misconduct. Hammoud readily admitted his involvement in “some very serious criminal activity with a fellow by the name of Mohammed Yaghi” (Tr p559). This included a conspiracy to supply a large commercial quantity of heroin (Tr p593) and other crimes including robberies (Tr pp599-600). He admitted to “drug rip-offs” and cheque frauds (Tr p605). He was taken through the details of particular robberies that he admitted to (Tr p602ff). At Tr p619 he agreed that his life in 1999 until he was arrested was “nothing but deception”. He admitted to a bashing which was part of an enterprise embarked upon with a corrupt police officer to buy his way out of gaol (Tr p670). There was an occasion when he passed himself off as a policeman (Tr p671). Other offences, delinquencies and moral deficits were readily admitted to.

77 Not surprisingly defence counsel made much of this evidence in his concerted attack upon the credibility of Nedhal Hammoud in final address. Counsel reminded the jury of the details of Hammoud’s criminal conduct, dishonesty and propensity for violence.

78 In summing up the judge reminded the jury of the Crown’s concession as to Hammoud’s unreliability and she endorsed it. At the close of her summary of Hammoud’s evidence she also said (SU 80):

I do not propose to summarise his evidence any further, members of the jury. You will remember detailed submissions from Mr Bodor about the brazen criminal activity that he agreed he had engaged in with Mr Yaghi and that the statement which he maintained was the truthful account had been given in the midst of all that activity.

79 Earlier her Honour had given the jury a very strong warning concerning Nedhal Hammoud’s evidence (SU 34-36).

80 In these circumstances, there is no merit in this ground of appeal which complains that the judge erred in failing to recount the details of the criminality. Defence counsel’s address would have been fresh in the minds of the jury. If experienced defence counsel had thought that the summing up was deficient on this account he would have sought a further direction. But he did not. Leave to raise this hopeless ground should be refused.

Ground 8: Error in failure to tell jury what evidence could be an independent source which they might consider reliable evidence to support Khaled Hammoud, Nedhal Hammoud, Mohammed Ajaj and Kader Chakaik

81 The Hammoud brothers and Kader Chakaik admitted that they had collaborated in Lebanon to create a fabricated story to blame the appellant. This and other evidence explains why it was common ground at trial that their evidence should be treated with extreme caution. In this Court, for the first time, the appellant complained that the jury were not directed to those pieces of evidence independent of these three witnesses capable of corroborating their testimony. There is no merit in this point. No such direction was sought at trial, and for fairly obvious reasons. The judge would in effect have been directing the jury that the balance of the Crown case could be used to corroborate the unsatisfactory evidence of the appellant’s three associates. This could well have strengthened the weight of their evidence and detracted from the warnings given to the jury as to the caution required in the assessment of the testimony they did give.

82 Fairly early in the summing up the trial judge made reference to these four witnesses. She gave a strong warning in accordance with section 165 of the Evidence Act. She then said (SU 35-6):

Each of these witnesses gave evidence which was significantly at odds with earlier accounts that he had given. In the case of Kader Chakaik and Mohammed Ajaj, each gave evidence which was inconsistent with sworn evidence given at the earlier committal hearing. There have been a number of highly unsatisfactory features of the evidence of each of these four men. I do not propose to go through each of those matters, Mr Bodor has done so carefully and, indeed, the Crown Prosecutor referred you to them, but I emphasise you would not reason toward the guilt of the accused upon the evidence of any one of these four men save in an instance in which you considered that a particular item of evidence was supported by evidence from an independent source which you considered to be reliable.

83 At no stage did trial counsel ask her Honour to spell out the particular items of evidence capable of falling within the concluding portion of these remarks (cf SU 38). In this ground of appeal, it is now contended that there was no evidence capable of providing reliable support for the testimony of these witnesses. If there were, the jury should have received some guidance as to what this instruction meant and as to what evidence could possibly be so regarded.

84 I would refuse leave to rely upon this ground. It was patently not in the interests of the appellant to have particular evidence catalogued as available to support any aspect of the testimony of these four associates. It would have been unhelpful, to say the least, to have told the jury that the balance of the Crown case afforded such corroboration. I accept that the jury may have been slightly puzzled by her Honour’s concluding remarks. But they were best left hanging in the air without elaboration. In reality, they were little more an endorsement of the warning about the unreliability of the witnesses’ testimony.

Ground 9: Failure to sum up adequately as to the evidence of Kazas.

85 Mr Kazas’ evidence is summarised above. During his cross-examination, the jury sent a note to the judge: “How close was Arthur Kazas to the shooter when the shooter stood above Chris, and can Arthur ID the shooter?” (Tr p162).

86 After discussing the matter with counsel the judge told the jury (Tr p172):

Members of the jury, the answer to that is in the event that Mr Kazas was able to identify the shooter we might have expected to have heard that in the course of his evidence-in-chief. You understand that Mr Kazas has made an identification of the person selected in the video and who he saw on another occasion in Court and that is a person identified by the name Nedhal Hammoud.

87 Her Honour summed up the evidence of Kazas at SU 47-53. This included reference to several of the passages about whose omission the appellant complains. There was also reminder that Kazas had identified Nedhal Hammoud but said that he was not the gunman. In response to a request from the jury, a transcript of Kazas’ evidence was provided at the conclusion of the summing up.

88 The submissions in support of this ground amount to no more than complaint that particular items of Kazas’ evidence, including his descriptions of the gunman and his clothing, were not drawn specifically to the jury’s attention. There was also complaint that the jury were not reminded in the summing up of the terms in which Kazas had “identified” the accused as a person present at the incident.

89 In fact, the judge reminded the jury that Kazas had agreed in his evidence that at the committal hearing he had given evidence that the gunman was a much thinner person than himself or the two males with whom he (Kazas) had been arguing outside the nightclub (SU 53). Furthermore, there were explicit directions reminding the jury of Kazas’ descriptions of the gunman (SU 52). As indicated already, the jury were also reminded that Kazas had specifically indicated that he could not say that the appellant, whom he identified at the prison as someone seen in Oxford Street, was the gunman.

90 The trial judge did not remind the jury that Kazas had, on 31 May 1998, been shown a video containing a picture of the appellant (Ex 3) but had failed to recognise him at that time. The omission of this unrequested factual direction did not however cause the trial to miscarry. It is to be remembered that there was no real issue that the appellant had been in the general vicinity of the shooting.

Ground 10: Failure to fully sum up the evidence of Kader Chakaik

91 Bell J summarised this witness’ testimony as SU 80-85. Her Honour drew attention to several lies he had told in police interviews and in his evidence itself. The jury would have been left in no doubt that this was an unsatisfactory witness.

92 The witness had given a police interview on 13 October 1998. In it he said that he had seen the accused with a pistol at Parramatta and that the accused had said “I shot at them”. The evidence was led in chief, as was the witness’ evidence that this part of his statement was false (Tr p 777). Elsewhere in his evidence, Chakaik had said that he had not seen a gun at any stage after having left the nightclub (Tr pp747, 775).

93 This ground of appeal complains that the jury were not reminded of these matters when Chakaik’s evidence was recounted in the summing up.

94 I would refuse leave to advance this ground of appeal. It relates to a factual direction of fairly minor compass that could have been sought at the trial if its omission were regarded as significant. The trial judge reminded the jury about several of the lies told by this witness. Nowhere did she endorse him or his testimony as having any significance in the overall Crown case.

Ground 11: The accused was incompetently represented

95 This was something of a portmanteau ground. The matters ultimately relied upon were:

(i) inadequate cross-examination of Detective Barwick with respect to his alleged gaol recognition;

(ii) lack of challenge (or voir dire examination) as to the admissibility of Kazas’ identification;

(iii) failure to cross-examine Khaled Hammoud as to whether he had or claimed to have had large sums of money;

(iv) failure to object to cross-examination of the appellant on tape recording evidence that went only to his bad character;

(v) failure to object to certain evidence going only to the accused’s bad character;

(vi) failure to seek redirections in respect of the matters raised in grounds 4, 5, 7, 9 and 10 above.

96 As indicated below, some of these complaints are factually inaccurate. Others amount to no more than second-guessing tactical decisions of trial counsel or an attempt to capitalise on possible oversights. Only (iv) has been shown to be the product of oversight.

97 In R v Birks (1990) 19 NSWLR 677 Gleeson CJ summarised the relevant principles (at 685) as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps form some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

98 This ground of appeal falls well short by these standards.

99 As to (i), the cross-examination of Detective Barwick had drawn out the difficulties with the officer’s “identification” of the shooter. The jury also had the advantage of the video tape of the events that occurred at the Silverwater Remand Centre. The cross-examination was brief, but well focussed. To have laboured it could well have strengthened the weight of the testimony. There is nothing in this point.

100 As to (ii), there was in my view no basis for a voir dire or the rejection of Khazas’ “identification” evidence. It was relevant and clear as to what it did and did not do in relation to identifying the gunman. Once again this particular complaint has no substance.

101 As to (iii), the nub of the complaint is that it was the accused’s case that he believed that Khaled Hammoud had large sums of drug-related money secreted in his mother’s bedroom. Evidence to this effect was given by the appellant at trial in the context of his attempt to down-grade the effect of “Jack’s” evidence from conspiracy to murder to conspiracy to rob. Defence counsel had in fact cross-examined Khaled Hammoud and elicited concessions that he had “a lot of cash flow” in his car-wrecking business. It was also put to him that he had kept cash on the premises where he lived, something he denied. The appellant’s evidence never rose above asserting a belief about Khaled Hammoud’s wealth and its source. There would have been several reasons why defence counsel might have refrained from pressing the matter any further in cross-examination, regardless of his instructions. This does not remotely approach “Birks incompetence”.

102 As to (iv), the appellant was cross-examined (without objection) in relation to an intercepted telephone conversation that was not in evidence. It had earlier been rejected on the basis of its prejudicial impact (Tr p1113). The Crown prosecutor’s use of it in cross-examination was an oversight as was the failure of defence counsel to object at this stage. Later there was an unsuccessful application to discharge the jury (see ruling of 17 July 2001).

103 Defence counsel conceded at the trial that his failure to object to these portions of the intercepted phone calls had occurred through oversight (Tr p1535). The particular conversation included a statement by the appellant offering to pay $50,000 to have the husband of a female caller “knocked” (Tr p1416). The appellant gave evidence that this was a patent joke, since the female was not married and the person named was his cellmate at the time. The Crown apparently accepted this and no reliance was placed on this evidence in address.

104 The fact remains that there were several other recorded conversations properly admitted into evidence in which the appellant discussed “killing” other persons, including relatives. The appellant gave evidence that these were obviously jocular and he relied upon the frequency of the references to cast doubt upon the seriousness of his expressed interest in the key conversation with “Jack” (see Tr pp1293, 1509, 1530). The jury were properly directed to focus upon the terms of the secretly-taped conversation with “Jack”. The jury were reminded that the appellant had responded to the telephone interception evidence led in the Crown case on the basis that his words should not be interpreted literally, since he was in the habit of much loose talk about killing (SU 106). Assuming that the particular portion of the evidence at Tr p1416 would have been excluded had objection been taken, counsel’s failure did not result in a miscarriage within the principles of Birks.

105 As to (v), the Crown had led evidence that tended to disclose the character of the appellant in relation to the evidence of Nedhal Hammoud that he was afraid of the appellant. The evidence was admitted on this basis, a ruling that is not challenged in the appeal. In these circumstances the nub of the present complaint is elusive. It was not developed in oral submissions.

106 As to (vi), the complaint was not developed in written or oral submissions. I have concluded that there was no wrongful admission of evidence or misdirection in most of the matters complained about. The circumstances in which any of the redirections were not sought remained unexplored. The case gets nowhere near one that raises an issue of Birks incompetence.

107 I would therefore reject this ground of appeal.

Ground 1: The trial miscarried
Ground 2: “The verdict was unsafe”

108 These grounds can conveniently be addressed together. The first was an undeveloped submission that the trial miscarried and was unfair as a result of wrongful admission of evidence, the conduct of counsel and the errors raised in the other grounds of appeal.

109 It was further submitted that the jury acting reasonably must have had a reasonable doubt that the appellant was the man who fired the shots that killed the deceased. This submission cannot be accepted in light of the firm and independent strands of evidence that made up the Crown case. There is a summary earlier in these reasons.

110 Somewhat at variance with the stance adopted at trial, the appellant placed considerable evidence upon the differing descriptions of events and of the gunman given by the eyewitnesses other than Barwick and Kazas. This Court was taken to the evidence, as the jury had been in addresses and summing up. Undoubtedly, there were differences in observations of facial hair, jewellery, clothing and height. If the conviction rested upon the evidence of one or more of these eyewitnesses then this would be a matter for concern, but it stands firmly upon other bases. Confusion on the part of these casual observers is hardly surprising given their generally intoxicated condition. There were even significant variations in the descriptions of the events that occurred.

111 Many of the descriptions of the gunman no more matched Nedhal Hammoud than the appellant. Some witnesses did describe a man more closely resembling Hammoud than the appellant, but without certainty that the man described was the shooter and not his companion.

112 The appellant next focussed upon the evidence of the appellant’s companions who gave evidence for the prosecution. Some had changed their stories and all had motives to minimize their involvement in the crimes that took place in Oxford Street. But the jury were given proper warnings, the trial testimony of these witnesses was consistent with the Crown case as a whole, and the Crown case rested comfortably upon independent strands of evidence. The clouds that hung over the evidence of these witnesses does not render the conviction “unreasonable … having regard to the evidence” as a whole.

113 Emma Lund, Khaled Hammoud’s girlfriend, had originally told the police that she never saw a gun. Later she said that she had seen a gun in the appellant’s possession. The appellant submits that she was a patently unreliable witness. The weight of her evidence was a matter for the jury who were aware of the matters relied upon as indicative of “patent” unreliability. Her evidence did not stand alone.

114 The appellant repeated in this Court the submissions to the jury based upon his evidence at trial that endeavoured to explain the damaging admissions in the three documents found in his possession. Likewise with the evidence of the conspiracy to murder Khaled Hammoud, which the jury were properly directed could be used in their deliberations on the first four counts subject to being satisfied of various matters.

115 The factual submissions in support of this ground really did no more than re-agitate arguments advanced at trial that sought to meet the strong Crown case. Singly and in combination, these matters did not show that it was not open to the jury to be satisfied beyond reasonable doubt as to the appellant’s guilt.

116 Other arguments were advanced, effectively aggregating the submissions marshalled under the other grounds of appeal in aid of this portmanteau ground. In particular, the appellant repeated in this context the concerns raised as to Detective Barwick’s prison identification of the appellant as a man who was “pretty similar” to the man with the gun. If the conviction had rested solely or very substantially upon Detective Barwick’s “visual identification evidence” then this ground of appeal would have been stronger (cf Pitkin v R (1995) 69 ALJR 612). But Barwick’s evidence was properly admitted and the jury were correctly directed as to its nature and cautioned as to its weight. The appellant’s conviction rested upon much more.

117 For these reasons I would dismiss the appeal against conviction.

Application for leave to appeal against sentence

118 In the sentencing proceedings the Crown tendered the prisoner’s antecedents and a folder containing victim impact statements. The only evidence led for the prisoner was a psychologist’s report that had been prepared in relation to earlier sentencing proceedings. It provided some background information about the prisoner, but contributed nothing in relation to the offences for which he had been convicted in the trial before Bell J.

119 Bell J imposed sentences on 15 March 2002 (Regina v Bassam Hamzy [2002] NSWSC 128).

120 Her Honour found that the shooting of the deceased was done with intention to kill him (at [30]). Bell J further observed (at [33]) that:

The killing was not a premeditated one. It occurred in the context of the spontaneous production of the handgun at the point when the offender decided to involve himself in the melee. However, the offence is aggravated by the circumstance that, while on bail in relation to firearm and other charges, the offender chose to arm himself with a loaded handgun before going out for a social evening with a group of friends.

121 Her Honour was satisfied beyond reasonable doubt that the conspiracy to murder Khaled Hammoud was entered into in order to prevent him giving evidence for the prosecution at the trial (at [22]). As to this offence, her Honour later remarked (at [38]):

The conspiracy to murder Khaled Hammoud is an offence charged pursuant to s26 of the Crimes Act . It carries a maximum sentence of twenty-five years imprisonment. It is difficult to think of a more serious instance of a conspiracy to murder. While in custody, awaiting trial on a charge of murder, the offender entered into a conspiracy to engage a contract killer to murder a Crown witness to prevent the witness from giving evidence against him. The conspiracy involved calculated planning and the offender associated himself with it over a sustained period.

122 Additional offences were taken into account pursuant to s33 of the Crimes (Sentencing Procedure) Act 1999. Two of the offences related to possession of prohibited weapons. A third was an offence of conspiracy to pervert the course of justice relating to arrangements made while the appellant was in custody with a view to fabricating a defence on behalf of a fellow offender charged with a serious motor vehicle offence.

123 Turning to the offender’s background and subjective circumstances, Bell J detailed a troubled early background that had included the lengthy imprisonment of the appellant’s father for drug offences and a troubled relationship with his mother that saw him leaving home at the age of thirteen. The appellant was expelled from high school on three occasions. There was a history of illegal drug use progressing from cannabis to cocaine, heroin and LSD.

124 The appellant was aged 23 at the time of sentencing. The psychological assessment, accepted by her Honour, did not provide a basis for optimism concerning the prospects for rehabilitation. Bell J concluded that none of the offences was mitigated in any degree by contrition.

125 The appellant’s criminal history involved serious drug offences including the offence of being knowingly concerned in the importation of cocaine. This occurred while the appellant was overseas immediately after the shooting. Following a successful Crown appeal referable to those offences, a total sentence of 13½ years had been imposed dating from 30 December 1999 with a non-parole period of 8 years expiring on 29 December 2007. The appellant had been in custody awaiting the disposition of the cocaine offences at the time he committed the offence of conspiring to murder Khaled Hammoud.

126 Bell J held that there was little to mitigate the crimes for which the appellant stood to be sentenced. She did however have regard to the offender’s youth and immaturity at the time of the murder (he was then aged 19). She also took into account the psychologist’s report as to the offender’s unsatisfactory home life in his early teenage years. Her Honour was mindful that is it frequently appropriate in sentencing youthful offenders to favour considerations of rehabilitation over deterrent and retribution. She added (at [57]):

The gravity of these offences does not admit of emphasis on such an approach in this case.

127 The following sentences were imposed:

Count 1 (Murder): Taking into account the three form 1 offences, 21 years imprisonment to date from 15 March 2002 until 14 March 2023. A non-parole period of 15 years and nine months expiring 14 December 2017 was specified.

Count 2 : Five years imprisonment dating from 15 March 2002

Count 3 : Three years imprisonment dating from 15 March 2002

Count 4 : Three years imprisonment dating from 15 March 2002

Count 5 (Conspiracy to murder): Imprisonment for 12 years commencing on 15 December 2017, expiring on 14 December 2029. In respect of that offence the sentencing judge specified a non-parole period of six years commencing on 15 December 2017 expiring on 14 December 2023.

128 Accordingly, the first date on which the appellant will be eligible for consideration for release to parole is 14 December 2023. The appellant has been in custody since his arrest on 30 January 1999.

129 In this Court the appellant led evidence relating to his current prison regime. He was placed in the High Risk Management Unit (HRMU) at Goulburn on 14 April 2002. This followed his designation as an extreme high-risk prisoner. The reason for such administrative designation was not established. The HRMU is a harsh regime in which the prisoner has relatively little contact with other inmates. There is a “hierarchy of privileges and sanctions” designed to encourage changes of behaviour and attitude.

130 The Court made it clear to senior counsel for the appellant that it was not prepared to allow the application to develop into a collateral challenge to matters of prison administration. Yet at the end of the day we were left substantially in the dark as to the basis upon which this material was led. As far as the evidence goes, the appellant’s admission to HRMU and the harsh regime there encountered represent the product of an administrative decision taken in light of events having nothing to do with the offences for which the appellant stands convicted. These appellate proceedings are not a proper vehicle for examining the lawfulness of that decision or for reviewing the conditions of imprisonment at HRMU. This was not a case where the sentencing judge proceeded upon a fundamental misconception as to the conditions of imprisonment that caused the sentencing discretion to miscarry.

131 Senior counsel for the appellant appears to have recognised that the evidence led in this Court had no bearing upon the exercise of our appellate jurisdiction. He addressed us briefly in accordance with the balance of his written submissions.

132 The nub of the complaint was that the total sentence was unduly harsh and severe, particularly the 21 year murder sentence. It was further submitted that the sentencing judge had erred in wholly accumulating the sentence for murder with the sentence for conspiracy to murder. Her Honour was said to have failed to pay sufficient regard for the youth of the offender and in her conclusions as to the limited impact of rehabilitation.

133 It was submitted that the sentencing judge also failed to make sufficient allowance for the fact that the offender, who had an injured shoulder, was about to be attacked by up to five irate men, even though he had played no role in any earlier incident and was in no way involved in any provocation of the deceased and his friends. This matter was however taken into account and given proper weight in par [33] of her Honour’s remarks on sentence (set out at par [120] above).

134 The appellant did not contend that Bell J’s sentencing reasons contain any factual error. It was not suggested that her Honour erred in concluding, as she did, that the killing (though unpremeditated) was the consequence of the appellant shooting the deceased with intent to kill him.

135 Nevertheless, some grievance was expressed by senior counsel for the appellant based on the fact that the Crown Prosecutor had addressed the jury in the following terms:

Her Honour will give you directions as to the law.
But in relation to whether or not you determine the accused murdered Mr Tomazis, you will have to consider whether or not the accused intended to kill or inflict grievous bodily harm. So the accused actually had to have the intention to do either of the two; that is, if you find he is the one who fired the shot, he either intended to kill or intended to inflict grievous bodily harm.
The Crown doesn’t have any evidence to suggest that the accused actually had an intent, that is, had the mental intent to kill Mr Toumazis, but certainly the Crown would submit to you that he had the intent to inflict grievous bodily harm.

136 These and other remarks of the Crown Prosecutor in his address to the jury show that the Crown Prosecutor did not think it necessary to pitch the case any higher than one that invited the jury to infer that the appellant must have intended to inflict grievous bodily harm. But nowhere was there a foreswearing of a case based upon the jury inferring the more serious intent (namely to kill). Nothing in the way that the case was conducted, either from a procedural point of view or in relation to the evidence itself, precluded the jury from inferring the more serious intent. The jury were directed on the basis that they could find murder if satisfied that the accused intended to kill or inflict grievous bodily harm.

137 Bell J was satisfied to the requisite standard of proof that the appellant had the more serious intent. This conclusion was well open, especially in light of the fact that the second bullet was shot from very close range as the appellant stood over the victim.

138 The remaining submissions raise no ground for appellate second-guessing of the sentencing decision. All matters appropriate to be taken into account were taken into account. Her Honour’s weighing of the issues of gravity of offence, rehabilitation and youthfulness was well open in the circumstances.

139 The sentence on the first count was w ell within an appropriate range having regard to the finding of intent to kill that was well open. Furthermore, it was ordered to commence during the currency of the previously-imposed sentence relating to the cocaine importation; the form 1 offences were also taken into account; the sentences on counts 2, 3 and 4 were made concurrent; and there was no evidence of any contrition on the offender’s part.

140 It is difficult to envisage a more serious conspiracy than the one for which the appellant stands convicted. It was a calculated arrangement to commit the most serious of crimes for the most unworthy of motives. It cried out to be dealt with by way of cumulative sentence.

141 I would grant leave to appeal but dismiss the appeal as to sentence.

142 Accordingly I propose the following orders:

1. Appeal against conviction dismissed.

2. Grant leave to appeal sentence, but dismiss sentencing appeal

143 LEVINE J: I agree with Mason P.

144 KIRBY J: I agree with Mason P.

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Last Modified: 05/13/2009