R v MG

[2016] NSWCCA 304

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v MG [2016] NSWCCA 304
Hearing dates:	1 December 2016
Decision date:	16 December 2016
Before:	Meagher JA at [1]; Johnson J at [52]; Rothman J at [64]
Decision:	1. Appeal allowed. 2. Vary the sentence imposed by North DCJ on 11 February 2015 by ordering that in respect of count 1 the respondent is sentenced to a further fixed term of imprisonment of six weeks to be served upon his apprehension and subsequent appearance before the court for sentencing following the issue of an arrest warrant in accordance with s 14A of the Criminal Appeal Act 1912 (NSW). 3. Order that a warrant for the arrest of the respondent be issued for failure to appear that warrant to be issued in accordance with s 14A of the Criminal Appeal Act 1912 (NSW).
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – s 5DA Criminal Appeal Act 1912 (NSW) – where respondent undertook to provide assistance by giving evidence in criminal proceedings in accordance with statement provided to police and was allowed a 7.5% discount in sentence – where respondent’s evidence at trial not in accordance with earlier statement – where material differences as to whole of relevant evidence – whether respondent failed wholly to fulfil his undertaking – whether discretion to vary sentence should be exercised
Legislation Cited:	Crimes Act 1900 (NSW), ss 21E, 349(1), 350 Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 Criminal Appeal Act 1912 (NSW), s 5DA, 11, 14A Criminal Appeal Rules, cl 20 Evidence Act 1995 (NSW), ss 4, 32(1), 38, 76, 91
Cases Cited:	Dwayhi v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331 R v Bagnall and Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep) R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406 R v Dehghani; ex parte Director of Public Prosecutions (Cth) [2011] QCA 159; (2011) 1 QdR 339 R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232 R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 R v Isaac; Ex parte Transport Workers’ Union (1985) 159 CLR 323; [1985] HCA 80 R v Hamzy [2016] NSWSC 1512 R v James; James v R [2014] NSWCCA 311 R v KS [2005] NSWCCA 87 R v O’Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep) R v Vo; R v Tran [2006] NSWCCA 165 R v Walters (1994) 33 NSWLR 612 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited (1987) 16 FCR 465; [1987] FCA 301
Category:	Principal judgment
Parties:	Regina (Appellant) MG (Respondent)
Representation:	Counsel: S Dowling SC (Appellant) D Dalton SC (Respondent)   Solicitors: Solicitor for Public Prosecutions (Appellant) John B Hajje & Associates (Respondent)
File Number(s):	2013/336246
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 February 2015 Before: North DCJ File Number(s): 2013/336246

Judgment

1. MEAGHER JA: This is an appeal by the Director of Public Prosecutions pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW) in relation to the sentence imposed on the respondent (MG) by North DCJ on 11 February 2015. The principal issue is whether MG “failed partly or wholly” to fulfil an undertaking to give evidence in criminal proceedings in circumstances where his sentence was reduced because of that undertaking.

2. Section 5DA(1) and (2) provide:

(1)   The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking.

(2)   On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit.

The reduced sentence

3. On 11 February 2015 MG was sentenced, having pleaded guilty to the following two offences:

1.   Accessory after the fact to the murder of Yeyha Amood.

2.   Accessory after the fact to the shooting with intent to murder of [Mr C].

4. For the first offence MG was sentenced to a head sentence of 18 months with a non-parole period of 6 months, commencing on 12 August 2014. He was sentenced for the second to a fixed term of imprisonment of 9 months commencing on 27 March 2014.

5. The effective sentence imposed comprised a non-parole period of 10 months and 2 weeks commencing on 27 March 2014 and expiring on 11 February 2015, and an additional term of 1 year commencing on 12 February 2015 and expiring on 11 February 2016. The total sentence was 1 year, 10 months and 2 weeks and the effective non-parole period was 46.67% of that head sentence.

6. In arriving at those sentences the sentencing judge allowed a total discount of 50%, being 25% for the value of MG’s guilty pleas, and a further 25% for assistance. As required by s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour recorded that this discount represented 10% for past assistance and 15% for future assistance. In relation to the latter MG had undertaken to give evidence in proceedings against Mohamed Hamzy (Hamzy) and Adam Dowidar in relation to the shootings of Mr Amood and Mr C on 14 October 2012 at Greenacre.

7. MG subsequently gave evidence at Mr Dowidar’s trial in the District Court, and in the committal proceedings and trial of Hamzy. That trial commenced on 21 June 2016. Hamzy was arraigned on four counts. Three related to the shootings at Greenacre. They were:

2.   Murder Yeyha Amood on 14 October 2012 at Greenacre.

3.   Wound [Mr C] with intent to murder [Mr C] on 14 October 2012 at Greenacre.

4.   In the alternative to count 3, wound [Mr C] with intent to cause grievous bodily harm on 14 October 2012 at Greenacre

8. On 8 July 2016, following a trial before RA Hulme J and a jury, in relation to count 2 Hamzy was found not guilty of murder but guilty of manslaughter (by excessive self-defence). He was acquitted of count 3 but found guilty of count 4.

The issues in this appeal

9. The ground of appeal is that MG failed to fulfil his undertaking to give further assistance. No complaint is made in respect of the assistance provided in proceedings against Mr Dowidar. In its written submissions the DPP contends that MG failed substantially to fulfil his undertaking to give evidence in the proceedings against Hamzy in accordance with a statement made by MG and dated 23 July 2014.

10. It is accepted that MG received an overall discount of 7.5% for his undertaking to give that evidence. By reference to the effective sentence imposed on MG, the length of time by which his non-parole period would have been extended, had he not undertaken to give that assistance, is six weeks.

11. There are two issues in the appeal. The first is whether MG failed wholly or partly to fulfil his undertaking in relation to the Hamzy proceedings. The second is whether, if the Court’s power to vary the sentence is enlivened, that power should be exercised, and if so to what extent.

12. The DPP submits that MG’s existing sentence should be varied by imposing a further sentence of six weeks imprisonment.

The relevant principles

13. The following observations are relevant to the exercise of the power given by s 5DA. The purpose of the power is not punitive. It is to enable the Court to intervene to adjust or correct a sentence where the sentencing process has, with the benefit of hindsight, miscarried by reason that the basis for the reduced sentence given on the expectation of assistance is “removed”: R v O’Brien (Court of Criminal Appeal (NSW), 10 June 1993, unrep) (Gleeson CJ) at p 2. The section provides a mechanism that allows the discount to be “excised” or reversed, but does not admit of “reviewing the sentence generally…”: R v Chaaban [2006] NSWCCA 352; (2006) 166 A Crim R 406 at [52] (Bell J).

14. In R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232 at [32]-[35], Simpson J (as her Honour then was) described the position of an offender who has been sentenced on the basis of assistance to be given as being:

… [the offender] is only entitled to retain the benefit of the discount in sentence which results if he or she follows through with the promised evidence. A discount is necessarily given in trust, or in anticipation that the promised evidence will be forthcoming. Generally speaking (apart from situations such as that which arose in R v Bagnall and Russell) the reason for any failure to honour the undertaking is of little materiality. … The basis for the discount lies in a factual assumption – that certain evidence will be given. If the evidence is not given, then the factual underpinning for the discount disappears. The discount has been given on a premise which has subsequently been proven to be false.

15. The Court in R v Bagnall and Russell (Court of Criminal Appeal (NSW), 10 June 1994, unrep) declined to disturb the sentences imposed because the respondents, who were in custody at the time they failed to honour their undertakings, had been subjected to threats in circumstances where it was considered that the State had failed to provide them with the level of support or protection that might reasonably have been expected. See also Chaaban at [9] (Basten JA).

16. The offenders in R v Walters (1994) 33 NSWLR 612 sought to explain their failure to honour their undertaking, asserting it was dishonest and in effect involved a promise by them to give perjured evidence. The Court (Gleeson CJ, Meagher JA and Sully J agreeing) did not consider it relevant to determine whether that was so, it having been established that the undertaking as given had not been fulfilled. The Chief Justice said at 616:

There may be any number of reasons why such an undertaking, once given, would not be complied with, and in a given case it may be impossible to ascertain with any degree of confidence the true reason.

…

I, for my part, cannot accept that s 5DA was intended to produce the result that in a case such as this we should embark upon the exercise of trying to determine whether the respondents were lying then or whether they are attempting to mislead this Court now. I would regard that as an exercise that is unnecessary for the purpose of achieving the result which the Crown seeks to achieve in the present cases.

The section is not intended to operate on the basis that the Court of Criminal Appeal should set out, at first instance as it were, to punish the respondents for telling lies to the police or to [the trial judge]. The purpose of the section is to enable the Court of Criminal Appeal to review the sentencing process with the benefit of hindsight, and if it is minded so to do in the exercise of its discretion, to alter the sentence to take account of certain events that have occurred since sentencing and that falsify the basis on which the sentences were imposed.

17. Accordingly, the position is as shortly stated by Wood CJ at CL in R v KS [2005] NSWCCA 87 at [19]:

… Persons who give undertakings and who receive the benefit of those undertakings by way of a discounted sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege on their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention.

Some preliminary matters

18. As Basten JA observed in R v James; James v R [2014] NSWCCA 311 at [11], factual disputes may arise on an appeal under s 5DA. Those disputes may include whether the offender has failed to fulfil an undertaking of assistance, or be as to the existence of factual matters relevant to the exercise of the discretion to vary the reduced sentence. It will be necessary in such a case for the Court to address those issues on the evidence tendered in the appeal.

19. In the hearing of this appeal the DPP tendered without objection MG’s undertaking to give evidence, his July 2014 statement, extracts from his evidence at the committal and trial proceedings relating to Hamzy and the transcript of his evidence in the sentencing proceedings before North DCJ. There was no objection to any part of that evidence.

20. The DPP also sought to rely upon parts of the remarks on sentence of RA Hulme J following Hamzy’s trial, and in particular his observations concerning the credibility of MG, his view that MG’s evidence “significantly” departed from his prior statement and his Honour’s “impression” as to why MG may have given that evidence. These parts of those reasons (R v Hamzy [2016] NSWSC 1512 at [26]-[27]) were said to be relevant to the DPP’s submission that this Court should conclude that there had been a failure to fulfil the undertaking, that that failure was deliberate and that in doing so MG was seeking to assist Hamzy’s defence that he was acting in self-defence. Senior Counsel for MG opposed the tender or reliance on those parts of RA Hulme J’s reasons for the purpose of establishing that there had been a failure to fulfil the undertaking, and the reason why that failure occurred. At the same time MG’s counsel did not object to this Court referring to those reasons for the purpose of identifying the issues in the trial, and assessing the significance of the evidence given by MG.

21. In my view those parts of RA Hulme J’s reasons cannot be tendered or relied upon for either of those purposes. As to the first, whether the undertaking was fulfilled is to be determined by a consideration and comparison of the evidence which was to be given with the evidence given in fact. Furthermore, assuming without deciding, that the s 5DA appeal proceedings in this Court are not proceedings that “relate to sentencing” within s 4(1) of the Evidence Act1995 (NSW), the provisions of that Act would apply to the tender, it is likely that the opinion rule (s 76) would exclude any opinion evidence relied on for this first purpose and s 91(1) would prevent the tender of the reasons to prove the existence, in the present proceedings, of any fact that was in issue in the Hamzy sentencing proceedings.

22. The resolution of this first issue does not turn on the standard of proof by reference to which the DPP must establish any failure to fulfil the undertaking. This makes it unnecessary to consider McCallum J’s obiter statement in James at [46] that because that is a matter arising in relation to a question of sentencing and is adverse to the offender, the fact of any such failure is to be proved beyond reasonable doubt.

23. As to the second matter it is not necessary in this case (and accordingly not relevant) for the Court to determine why MG may not have fulfilled his undertaking. That is because, as Gleeson CJ said in Walters (at 615-616), the purpose of the power to vary the sentence is not to punish for non-co-operation or non-fulfilment of the undertaking and it is not contended on behalf of MG that the reason for any failure on his part to honour his undertaking is relevant to whether the Court should decline to vary his sentence.

The shooting of Yeyha Amood and Mr C

24. The general circumstances to which MG’s evidence relates were as follows. Hamzy and Mr C were members of a gang known as Brothers for Life. Shortly after 1pm on Sunday 14 October 2012 Hamzy arranged to meet Mr C at Hamzy’s mother’s townhouse in Greenacre Road, Greenacre. Mr C and Mr Amood travelled to that address in Mr C’s Mercedes vehicle, arriving first and parking outside the address and on the opposite side of the road. They remained in that vehicle, Mr C in the driver’s seat and Mr Amood in the front passenger seat.

25. On the same morning MG was at Hamzy’s house. He later agreed to drive Hamzy to his mother’s house in a white Lexus vehicle. Hamzy sat in the front passenger seat and gave MG directions. When the vehicle was travelling on Greenacre Road and some distance from his mother’s house, Hamzy told MG to pull over beside the parked Mercedes. As MG brought the vehicle to a stop and before he took off again, Hamzy fired a number of shots in the direction of Mr C. At least 11 shots were fired. Eight struck the Mercedes, two struck Mr C, one in the right leg and one in the ankle, and one struck Mr Amood in the chest area, causing his death.

The evidence MG undertook to give

26. Paragraphs 14 to 18 of MG’s statement dated 23 July 2014 included the following:

14.   .... I pulled away from the kerb and HAMZY started giving me directions to his mum's house. He would tell me to go left or right at an intersection. I turned into Greenacre Road, I was on Greenacre Road travelling toward Stacey Street Bankstown. I was travelling about 50 - 60km per hour.

15.   About 100 metres from his mum's place I saw HAMZY feeling around his beltline and reach under the front of his jumper. I saw him pull a gun from under his jumper. He lowered the front passenger car window, which had been up since we left Shannon Street. I was thinking, 'Fuck, what's that doing in his hand, did I do something wrong' I felt scared. He hadn't been talking all trip and now he pulled out a gun. I had massive concerns for my safety. I was thinking, 'this cunt can't shoot me I'm driving.' At that point I saw [Mr C’s] … Mercedes Benz ...

HAMZY said, "Pull up near [Mr C’s] car"

….

16.   He had a gun in his hand. I wanted to say something to him like, 'what the fuck are you doing?' but I thought if I said that he would turn around and shoot me. The gun was a black handgun. I don't what type or model of gun or anything. I just saw a black handgun. He was holding the gun in his right hand, resting on his lap, with the gun pointed toward the passenger door.

He again said, "Pull up near the car". His voice sounded angry. As I pulled up alongside I saw [Mr C] sitting in the driver's seat. I didn't see Yeyha. It happened so quick that I didn't have time to look at [Mr C’s] car properly.

17.   I stopped the Lexus next to [Mr C’s] car. His car was on my left. I was facing toward Stacey St. I was hoping he wasn't going to do anything, maybe just pull it out and argue or scare him or something. HAMZY didn't talk. As soon as I stopped HAMZY pulled the gun up and started firing straight away. He was aiming the gun at [Mr C]. The gun was still in his right hand. I heard multiple gun shots. I took off straight away. As I was taking off toward Stacey Street, HAMZY was still firing. He had his hand out of the window, but not his body. He was firing back towards [Mr C’s] car. I don't know how many shots he fired. As we driving off I saw in the rear vision mirror, Yeyha AMOOD in the front passenger seat of [Mr C’s] car, the silver Mercedes Benz. I didn’t know who had been hit by the gunfire or how bad.

18.   I was in shock. He said one thing to me.

He said, "I'm sorry".

…

27. These paragraphs describe quite clearly the sequence of events. First, Hamzy pulls out a gun and then lowers the passenger side window. MG sees Mr C’s vehicle. Hamzy then twice instructs MG to pull up near Mr C’s car. At this stage Hamzy is holding the gun in his right hand, which is resting on his lap. The gun is pointed towards the passenger door. Next, MG stops the Lexus beside Mr C’s car and as soon as he does so Hamzy pulls the gun up and starts firing. He continues to fire as the car moves away. There is no conversation between MG and Hamzy about what has occurred except for Hamzy’s two word apology.

MG’s evidence at Hamzy’s committal proceedings

28. MG gave evidence at Hamzy’s committal proceedings on 6 March 2015. Under cross-examination he confirmed that he first saw a gun when the vehicle was about 100m from the house; that Hamzy then lowered the passenger side window; that this happened before he saw Mr C’s vehicle; that Hamzy was sitting with the gun in his hand; and that Hamzy then asked him to pull over beside Mr C’s car.

28. MG also said in cross-examination that he was able to see Mr C’s hands when he pulled up next to his vehicle. He described Mr C as having something in his right hand which was black metal and resembled a gun. That evidence was not in his statement and was not consistent with the position being that, although he had seen Mr C sitting in the driver’s seat, he did not have “time to look at [Mr C’s] car properly” (para 16).

MG’s evidence at Hamzy’s trial

30. Hamzy pleaded not guilty to each of the offences with which he was charged. A significant issue at his trial was whether the Crown could prove beyond reasonable doubt that Hamzy had not acted in self-defence. His case was that he believed it was necessary to shoot at Mr C to defend himself, and that in the circumstances his response was not excessive. This focussed attention on whether Hamzy’s actions were more consistent with a premeditated shooting, rather than a responsive pre-emptive strike.

31. MG gave evidence on 29 June 2016. Early in his examination-in-chief he gave evidence that was inconsistent with his statement. The Crown sought and was given leave, there being no objection, to his refreshing his memory from the statement (Evidence Act, s 32(1)). MG then gave further evidence not consistent with his statement. At that point, and later in his evidence, the Crown was given leave to cross-examine MG on particular matters (Evidence Act, s 38).

32. MG gave the following evidence in chief (the page references are to tcpt 29/06/16):

• As to what he saw first and when: He saw Mr C’s car 100m before he got to the house (pp 389, 410); he saw the motor vehicle first (pp 392, 399, 410).

• As to when he first saw the gun: It was not until he was right up close to Mr C’s car that he noticed Hamzy had a pistol (p 390); that could have been 15 or 20 metres from the house (p 391); he saw the gun when we “got up close near the car” (p 391); he was probably near the car when he saw the gun in Hamzy’s hand (p 393); he had the gun out just before they pulled up next to the Mercedes (p 411); the gun did not come out first (p 399).

• As to when the passenger side window was pulled down: Hamzy pulled the passenger side window down when they were right up next to the car (p 394).

• As to when Hamzy gave instructions to pull up: Hamzy gave the instruction to pull up next to Mr C’s car when they were probably right next to him, and as soon as they got to that car (p 394); Hamzy didn’t have his gun out then (p 395); instruction to pull up next to Mr C’s car was given when they were right next to the car or about 10-20 metres from it (p 400).

• As to whether MG observed anything about Mr C: When pulled up next to Mr C’s car noticed that his window was down (p 401); at time Hamzy started firing noticed Mr C was holding something (p 403).

• As to when Hamzy first started firing: Hamzy started firing within a few seconds of their stopping next to Mr C’s car (pp 401-402); he did not start firing straight away (p 403).

• As to when Hamzy stopped shooting: Hamzy did not shoot many times and stopped firing as soon as the car got past Mr C’s car (pp 404-405); as soon as they got past Mr C’s car he stopped firing (p 405).

33. In cross-examination MG’s evidence included:

• As to what MG observed about Mr C and his car: As they pulled up next to Mr C’s car he saw that Mr C’s window was all the way down (p 433); he could see that Mr C was holding something that was shiny black metal in his right hand (pp 433-434).

• As to what Hamzy said after the shooting: After they had taken off and on the way back to Hamzy’s house he said words to the effect “fuck, fuck, fuck, did you see what [Mr C] pulled out?” (p 434)

34. Two further matters concerning MG’s evidence at the trial should be referred to. First, on a number of occasions MG asserted, having been referred to a respect in which his evidence was different from that in his statement, that his memory must have got “stronger” from when he made the statement or gave evidence at the committal (pp 397, 398). He also said that his memory at the time of the trial was “excellent” and better than it had been at the time he made his statement (p 406). It is to be remembered that the relevant events occurred in October 2012, the statement was made in July 2014, the committal took place in March 2015 and the trial occurred 15 months later in June 2016.

35. The second matter is that in his statement MG said that when Hamzy gave the second instruction to “pull up” his voice “sounded angry”. At the trial, under questioning from the prosecutor, MG repeatedly described Hamzy’s voice as sounding “upset”. He was then referred to para 16 of his statement (see [26] above), and asked to read the relevant part of it. The following exchange then occurred (p 413):

Q.   Do you see the third last line of paragraph 16?

A.   Yeah.

Q.   Read it, please.

A.   I'm not really good at reading, so I'm not a good reader.

Q.   Follow with me.

A.   Do I have to follow with you?

Q.   Look at your statement. "He" - can you see that word?

A.   Yeah.

Q.    "Again" - can you see that word?

A.   I'm not a very good reader, so I can't really put words together.

36. In the cross-examination that followed MG refused to acknowledge that he had described Hamzy’s voice as sounding “angry”. On his return to the witness box after a 20 minute adjournment MG accepted, without further difficulty, that the word used in his statement was “angry”.

Whether MG’s undertaking was not fulfilled in whole or part

37. MG undertook to give evidence in the terms of the July 2014 statement. His evidence at the trial (which in part reflected evidence given for the first time in the committal proceeding) departed in significant respects from the evidence in paras 14-18 of that statement. First, the timing and sequence of events changed. In MG’s evidence at trial the gun was not pulled out until they were right up to or close to Mr C’s car and Hamzy did not pull the window down until they were in that position. Secondly, MG gave evidence concerning what he observed about Mr C at the time he pulled up next to his car. In his statement (para 16) he had said that he saw Mr C sitting in the driver’s seat but did not have time to look at his car properly. At the trial he said that at the time they pulled up he noticed Mr C’s window was down and that he was holding something in his right hand that was black metal and looked like a gun. Thirdly, MG gave evidence that Hamzy did not start firing straight away and stopped firing as soon as the car passed Mr C’s car. In his statement (para 17) he had said that as soon as the car stopped Hamzy “started firing straight away” and was firing “back towards” Mr C’s car as they sped off. Finally, MG gave evidence as to Hamzy’s question concerning whether he (MG) had seen what Mr C had “pulled out”. In his statement (para 18) MG described the only thing said to him by Hamzy as being “I’m sorry”.

38. Several submissions were made on MG’s behalf as to why those differences did not justify a conclusion that there had been a failure to fulfil the undertaking. It was submitted that the respects in which MG’s evidence at trial differed from that in his statement were not material and could be explained as differences in detail that were within the thrust of the evidence he had indicated he would give. In my view the differences to which I have referred do not answer that description. I accept that MG’s statement as to when Hamzy first started feeling around for the gun and then pulled it out, which is given by reference to the distance of the car from Hamzy’s mother’s house, is describing a sequence of events which happened whilst the vehicle continued to travel at about 50kph (about 14m per second) along Greenacre Road. Evidence that some of those events occurred when the vehicle was closer to that home would have been within the evidence indicated in the statement. However the sequence in which the relevant events occurred remained significant and there is no apparent reason why any matter of detail should have led to a change in that order. It included that the gun had been retrieved, and the window wound down, before MG saw Mr C’s vehicle. It also involved those events occurring before any instruction was given as to where the car was to be stopped.

39. MG’s written submissions accept that his evidence that Hamzy started shooting within a couple of seconds of the car stopping differed from his statement. This was said to be explicable on the basis that perceptions of time may vary greatly. That may be so. However it does not deny that MG’s evidence at trial as to his perception of that delay differed from his perception as recorded in his statement. This difference was significant because of the issue of self-defence and MG’s evidence that Mr C looked to be holding a gun. That evidence, which had also been given at Hamzy’s committal, was said not to be contrary to his statement. I do not agree. There was no reference to such a significant observation in his statement and MG’s description of what he did see as he stopped alongside Mr C’s car was that whilst he saw Mr C sitting in the driver’s seat, he did not have time to look at his car properly.

40. It was also submitted that MG’s evidence as to Hamzy’s comments about what Mr C “pulled out”, whilst not in his statement, was not contrary to what was there said. This submission is rejected. In his statement (para 18) the only words MG records Hamzy as having said were “I’m sorry”. Hamzy then asked MG to drive him home and gave instructions to allow him to do so. MG’s statement (para 19) records that, when they arrived at Hamzy’s house and locked the vehicle, Hamzy “didn’t say anything to me”.

41. Three further matters are put on behalf of MG. The first is that any difference in the evidence as to the number of shots that were fired as they drove away “was not of great moment”. That is debatable in view of the issue as to self-defence. More significantly, it is not to the point because in this respect the evidence given was not the same as that undertaken to be given. Secondly, reference is made to MG’s eventual concession that, immediately before the shooting, Hamzy was “angry”. That concession was made, but (as appears in [35] to [36] above) only after evidence was given which was different from that undertaken to be given. Finally, it is said that MG’s evidence that Mr C’s window was down was not contrary to his statement. Again I do not agree. The statement makes no reference to Mr C’s window being up or down, which is explained by the fact being, as MG said in his statement, that he did not have time “to look at [Mr C’s] car properly”. His evidence at the trial was inconsistent with that being the position.

42. Although MG gave evidence at Hamzy’s trial those departures from his statement were significant and concerned the whole of the material part of his evidence. At the trial the critical issue was whether Hamzy was acting in self-defence when he shot Mr C and Mr Amood from the passenger side of the vehicle being driven by MG. The evidence given was of a very different character from that he had undertaken to give because it provided support for Hamzy’s case of self-defence. For that reason I consider MG failed substantially to fulfil the whole of his undertaking to give evidence at Hamzy’s trial.

Whether the sentence should be varied, and to what extent?

43. It is submitted on MG’s behalf that the Court should not exercise its discretion to vary the existing sentence having regard to the following matters: the proposed variation is for a short period of up to six weeks; MG gave evidence at the committal without any criticism; MG gave important evidence against Hamzy as to the general circumstances in which he had driven him to his mother’s house and in which the shootings had occurred; MG has now been released for approximately two years and has committed no further offences nor been charged with any offence; and MG has secure employment, is the sole provider for his family and has otherwise demonstrated a proven period of rehabilitation.

44. An affidavit was relied on which outlined MG’s family responsibilities and study commitments. However MG did not, in support of an argument that this Court should not vary his sentence, offer any possible justification as to why he did not comply with his undertaking. For the reasons explained in Walters his assertions that his memory had improved were not to the point. The basis on which the sentence was imposed was falsified and absent any other considerations, that justifies this Court’s intervention.

45. The fact that he has now been released for approximately two years is not a matter that should prevent his sentence from being varied. At the time of his sentencing on 11 February 2015 MG had been released on conditional bail since 26 September 2014, having earlier spent 10 and a half months in custody. The effect of the sentence imposed was that he was subject to a further period of parole of 12 months which expired on 11 February 2016. Accordingly he was on parole at the time he gave evidence at the committal. It would seem that Hamzy’s trial was originally scheduled to be held in October 2015, but was vacated because of a late disclosure of material by the Crown: [2016] NSWSC 1512 at [54]. RA Hulme J described any delay in the prosecution of those proceedings as “not as substantial as is sometimes seen”.

46. Significantly for present purposes, it was to be expected that MG would not be in custody at the time he would have to make good his undertaking to give evidence at Hamzy’s trial. At his sentencing hearing MG acknowledged that if he failed to give that evidence he might be “called back and resentenced”. He must be taken to have appreciated that it was likely that he would have been released, either on parole or free of parole, by the time of Hamzy’s trial.

47. In a written submission made after this Court had reserved its decision it was submitted that there was delay by the Crown in filing its appeal, which was brought on 1 September 2016 following Hamzy’s trial which concluded on 8 July 2016. The principles which may apply in the face of delay in the prosecution of a Crown sentencing appeal do not necessarily apply to an appeal under s 5DA where the appeal comes about solely as a result of the respondent’s own post-sentence conduct and the Court is not altering the sentence in the same way as on a conventional appeal: see Director of Public Prosecutions (Cth) v Johnson [2012] VSCA 38. Here the period of about eight weeks between the trial and the filing of the appeal is not significant and it is not suggested that MG suffered any particular prejudice by reason of that delay.

48. Separately it is submitted that MG was prejudiced by the DPP’s delay in not prosecuting the appeal after MG was first said to have breached his undertaking when he gave evidence at Hamzy’s committal in March 2015. It is suggested that had the DPP appealed after the committal (and presumably before MG could have given evidence at the trial) he “could have been properly advised regarding all those matters raised on his behalf” in the hearing of the appeal. This submission is rejected. The DPP did not act unreasonably in determining not to appeal until after MG had been given the opportunity to fulfil his undertaking to give evidence, in accordance with his statement, at Hamzy’s trial . If the DPP had appealed earlier it could have been said, with some justification, that MG had not been given the opportunity to fulfil that undertaking.

49. Finally, the fact that MG has committed no further offences or been charged with any such offences since his release is of no relevance. Any variation to his sentence should reflect the punishment that he would have received but for the, now apparent, false premise upon which that sentence was imposed.

50. Taking these matters into account I consider MG’s sentence should be varied by imposing a further fixed term of six weeks which is equal to the period of the discount he received. I do so because his failure was with respect to the whole of the evidence that he gave. I acknowledge that this period is short and is imposed 18 months after the original sentence. Section 5DA nevertheless requires that the existing sentence be varied. In circumstances where that sentence has been served, it seems to me an appropriate way of dealing with MG’s position is to order that he be sentenced in relation to count 1 to the further fixed term of imprisonment of six weeks.

51. In circumstances where I am satisfied that the respondent was given notice of the date on which this judgment was to be delivered and was aware that he was required to be present in court on that date, and the respondent is not in court at the time this judgment is delivered, the orders I propose are:

1.   Appeal allowed.

2. Vary the sentence imposed by North DCJ on 11 February 2015 by ordering that in respect of count 1 the respondent is sentenced to a further fixed term of imprisonment of six weeks to be served upon his apprehension and subsequent appearance before the court for sentencing following the issue of an arrest warrant in accordance with s 14A of the Criminal Appeal Act 1912 (NSW).

3. Order that a warrant for the arrest of the respondent be issued for failure to appear that warrant to be issued in accordance with s 14A of the Criminal Appeal Act 1912 (NSW).

52. JOHNSON J: I have had the advantage of considering the judgment of Meagher JA in this appeal. Subject to what follows, I agree with his Honour’s reasons and proposed orders.

53. I do not join with his Honour’s reasoning at [21] concerning the admissibility of the sentencing remarks of RA Hulme J in R v Hamzy [2016] NSWSC 1512. The issue was not fully argued, in a considered fashion, by counsel on this appeal. Further, the resolution of the question is not necessary for the purpose of determination of the appeal. For my part, the issue should await resolution in proceedings where the matter is fully argued by the parties, and a decision with respect to admissibility is necessary for the purpose of the appeal.

54. I make a number of observations on the topic in the event that the question does arise for determination in the future.

55. Firstly, I would not assume, as Meagher JA does, that s.5DA appeal proceedings in the Court of Criminal Appeal are not proceedings that “relate to sentencing” for the purpose of s.4(1) Evidence Act 1995. As Meagher JA explains at [13]-[17], a s.5DA appeal is a limited form of Crown appeal. Since 2011, when s.23(4) Crimes (Sentencing Procedure) Act 1999 was enacted, s.5DA is connected directly to the obligation on the part of a sentencing court to specify the amount of a sentencing discount allocated for each of past and future assistance: R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 at 438-439 [73]-[74]. In this way, a s.5DA appeal is closely linked to the original sentencing decision, and is limited effectively to the question whether the quantified benefit of the original discount ought be removed.

56. Secondly, the question whether this Court may receive the opinion of a first-instance Judge, with respect to a matter under appeal, must be considered in light of the facility for provision of a Judge’s report under s.11 Criminal Appeal Act 1912 and Clause 20 Criminal Appeal Rules. Although this procedure is not often used in the modern era, it remains part of the statutory scheme: SKA v The Queen [2011] HCA 13; 243 CLR 400 at 430-432 [110]-[115]. In raising this, I am not suggesting that the use of a Judge’s report ought necessarily be utilised on s.5DA appeals. Rather, the point is that, even if the Evidence Act 1995 had some application to a s.5DA appeal, the role of ss.76 and 91 of that Act would need to be considered against the background of the specific statutory framework under the Criminal Appeal Act 1912 for appeals before this Court.

57. I am conscious that the sentencing Judge in this case was a District Court Judge, and that Hamzy’s murder trial proceeded (as it had to) before the Supreme Court. In these circumstances, the Judge’s report analogy would not apply directly to this case. However, the common scenario is that a person such as MG would be sentenced by the same Judge if the trial of an alleged co-offender was proceeding in the same Court. Ordinarily, co-offenders should be sentenced by the same Judge: Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [33]-[46]. The Judge’s report analogy would have direct application in the case where the same Judge sentenced the beneficiary of the s.23 discount and then presided at the trial where that person gave evidence.

52. Thirdly, it is noteworthy that appeal courts have referred to comments by the trial Judge or the sentencing Judge (if that Judge was not also the trial Judge) in Crown appeals under s.21E Crimes Act 1914 (Cth). It has been suggested that the enactment of s.23(4) was intended to bring the New South Wales provision into closer alignment with s.21E: R v Ehrlich at 439 [74].

53. In R v Vo; R v Tran [2006] NSWCCA 165, the Court of Criminal Appeal had regard to an extract from the remarks on sentence of the trial Judge when sentencing other offenders, in which comments were made concerning the evidence of Vo and Tran at trial. In that extract at [28], the trial Judge explained that the trial had been “a difficult one” and sought to explain the role of the evidence of Vo and Tran in the trial.

54. In R v Dehghani; ex parte Director of Public Prosecutions (Cth) [2011] QCA 159; 1 QdR 339 (another s.21E appeal), the Queensland Court of Appeal recited at 345 [31] observations of the trial Judge at the time when the relevant witness had been declared hostile.

55. In my view, the decisions in R v Vo; R v Tran and R v Dehghani illustrate the way in which remarks made by a first-instance Judge (whether during the trial or in later sentencing remarks) may assist an appeal court in exercising the limited form of appeal under s.21E or s.5DA. The use of material of this type for such a purpose does not appear to be inconsistent with the limited form of appeal being undertaken. Where the witness or witnesses in question have given evidence in a complex trial, the remarks of the first-instance Judge may provide considerable practical assistance to an appeal court in the discharge of its function.

56. As Meagher JA notes at [21]-[23], the Court was able to discharge its function in this appeal without the need to consider the sentencing remarks. The comparison of the accounts given by MG at different times demonstrated clearly the relevant failure for the purpose of s.5DA.

57. However, the issue may arise for consideration in a future s.5DA or s.21E appeal arising from a more complex trial. It will be for this Court to consider the status of remarks of a first-instance Judge if and when it arises.

58. ROTHMAN J: I have, since reading in draft and agreeing with the reasons for judgment of Meagher JA, had the opportunity to read, in draft, the reasons of Johnson J.

59. I should state why, in one sense, I agree with each. The provisions of s 91 of the Evidence Act 1995 exclude the use in a proceeding of reasons for judgment to prove the existence of a fact in issue in that proceeding. Such an exclusion applies even where the reasons involve an opinion that indirectly affects the assessment of the probability of the existence of the fact: s 55 of the Evidence Act. Moreover, it applies even where the reasons for judgment are otherwise before the Court and/or admissible: s 91(2) of the Evidence Act.

60. However, appeals under s 5DA of the Criminal Appeal Act 1912 are, in my preliminary view, proceedings that “relate to sentencing”: s 4 of the Evidence Act; and, subject to a direction under s 4(2) of the Evidence Act, the Evidence Act does not apply. Therefore, I am reluctant to assume the contrary: see [21] above. Nevertheless, it may be dangerous to use a conclusion of fact, or opinion on the reliability of a witness, otherwise than as confirming that the advantage of observing the evidence and proceedings at trial should not lead to a different result.

61. The terms “relate to” and “relating to” are ordinarily of wide import: R v Isaac; Ex parte Transport Workers’ Union [1985] HCA 80; (1985) 159 CLR 323 at 334 – 335; Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited [1987] FCA 301; (1987) 16 FCR 465 at 479 – 480. Ordinarily, the words are used to describe a relationship between one thing and another. Such a relationship need not be causal or temporal; it may be a relationship with a contemplated future, past or present event or circumstance. It may have a similar (although probably not as wide) meaning as “in connection with” (see above and Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331 at [41] – [42]). The words must be construed bearing in mind the purposes of the legislation, the need to achieve harmonious goals and the terms of the statute as a whole.

62. Whether an appeal pursuant to s 5DA of the Criminal Appeal Act “relates to sentencing” was not the subject of full argument and I agree with Meagher JA and Johnson J that it is unnecessary to decide the issue finally.

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Decision last updated: 16 December 2016