Hamze v R

Court of Criminal Appeal (NSW)|2015-05-18|Before: Bathurst CJ, Simpson J, Hulme J, Button J

Solicitors: Oxford Lawyers Solicitor for Public Prosecutions File Number(s): 2014/370560 Decision under appeal Court or tribunal: Supreme Court Date of Decision: 26 February 2015 Before: Button J File Number(s): 2014/370560

Judgment

THE COURT: Saddam Hamze ("the applicant") makes a bail release application pursuant to s 49 of the Bail Act 2013 (NSW).
Button J refused a release application on 26 February 2015. Section 67 provides power for this Court to determine a further application.
The applicant is to stand trial in the District Court at Parramatta on 19 October 2015 where he is to be indicted on charges of:
Causing grievous bodily harm to John Hanna with intent to cause grievous bodily harm (s 33(1)(b) of the Crimes Act 1900 (NSW) - maximum penalty imprisonment for 25 years; standard non-parole period 7 years)
Specially aggravated kidnapping of John Hanna (s 86(3) - maximum penalty imprisonment for 25 years)
Stealing a motor vehicle (s 154F - maximum penalty imprisonment for 10 years)
Intentionally destroying a motor vehicle by means of fire whilst in company (s 195(1A)(b) - maximum penalty imprisonment for 11 years)
Mahmoud Atwa is to be jointly indicted with him on those charges. Adam Falzon is to be indicted on a charge of being a principal in the second degree to the first charge.

The prosecution case

The Crown case, as summarised in written submissions, is that the offences were committed on 25 July 2013 by the applicant and his brother, Wesam Hamze, Mahmoud Atwa, Mahmoud Karanough, and an unidentified male. Adam Falzon played a role in luring the victim, John Hanna, to the vicinity of the Smithfield Tavern where he was punched and kicked by five men and shot in the thigh, thereby causing a broken leg. He was then bundled into his car and dropped at Auburn Hospital. His car was taken to Regents Park and set alight.
The background to this was that Wesam Hamze wanted to buy a firearm. He made an arrangement with John Hanna that Hanna would obtain the firearm on his behalf. Wesam Hamze gave Hanna $5500 for that purpose. Hanna was not able to obtain the firearm and was not able to return the money. He tried to reassure Wesam Hamze that he would return the money or obtain the firearm and that he just needed more time.
Believing that he had been "ripped off", Wesam Hamze became increasingly irate. He contacted a number of people including the applicant and informed them of the failed transaction. Wesam Hamze's phone was being intercepted by police at the time and recorded calls and text messages are a substantial part of the prosecution's evidence.
Thinking that the victim was avoiding him and did not want to meet face-to-face, Wesam Hamze arranged for the co-accused, Adam Falzon, to lure the victim to a meeting. Falzon was successful in this respect. The applicant agreed to accompany Wesam Hamze to a confrontation with Hanna. Telephone intercepts and the location of cell towers their mobile phones accessed are said to establish their presence at relevant locations; specifically in relation to the applicant, the cell tower evidence is said to establish his presence at relevant times at Smithfield and shortly afterwards at Auburn and then Regents Park. Distinctive clothing identical to that worn by one of the assailants as depicted on CCTV footage in the vicinity of the Smithfield Tavern was found when the applicant's home was searched by police on 10 October 2013.
John Hanna declined to assist police and has not provided a statement. He told police on the night of the shooting that he was assaulted and shot outside the Smithfield Tavern and that there were approximately four males involved; but he claimed he did not know who they were. On 31 July 2013 he gave an account to a police officer which included that Wesam Hamze and his brother Saddam were involved.
According to a statement of facts prepared by police, the applicant was arrested on 2 January 2014. He denied involvement in the shooting, ever having been to Smithfield, and knowing Adam Falzon. He did admit to knowing John Hanna.
The Crown submissions summarised that its case involves the following bodies of evidence: Conversations between the applicant and his brother in which they discuss the latter's "problem" with the victim and the applicant's willingness to meet and assist. Cell tower locations placing the phone used by the applicant at Smithfield, Auburn and Regents Park at relevant times. Clothing consistent with that owned and worn by the applicant depicted in CCTV footage as being worn by a male at the scene of the shooting. Statements made by the victim in which he named the applicant as one of the perpetrators.

A need to show cause

Counts 1 and 2 are "serious indictable offences" in Part 3 of the Crimes Act that are alleged to have involved the use of a firearm. All of the offences are alleged to have been committed whilst the applicant was on bail for other matters. For these reasons, pursuant to s 16A of the Bail Act, the applicant must show cause as to why his detention is not justified. If he fails to do so, bail must be refused.

A need to determine whether any unacceptable risk

If the applicant does show cause, then pursuant to s 19 it will become necessary to consider whether there is an unacceptable risk of the applicant failing to appear in court; committing a serious offence; endangering the safety of victims, individuals or the community; or interfering with witnesses or evidence. Bail must be refused if there is any such unacceptable risk. In approaching this task the Court must consider the matters listed in s 18.
That the show cause requirement and the unacceptable risk assessment are distinct considerations is apparent from the text of the statute and was confirmed in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83.

History of proceedings

As indicated earlier, the applicant was arrested and charged on 2 January 2014. He was committed for trial on 27 November 2014. He was arraigned and pleaded not guilty on 25 February 2015. He is due to stand trial on 19 October 2015.
The applicant's brother, Wesam Hamze has pleaded guilty and apparently is awaiting sentence.
Mahmoud Rabee Karanough is an alleged co-offender who was charged on 19 January 2015. He is listed for a "paper committal" in the Local Court at Parramatta on 26 June 2015. His solicitor has been informed by the Crown that, if he is committed for trial, the Crown proposes that he be tried jointly with the applicant.

Criminal history

The applicant has a criminal history which includes offences of driving whilst disqualified (x 4); possessing an anabolic or androgenic steroids (x 2); having custody of a knife in a public place (x 3); possessing a prohibited drug (x 4); supplying a prohibited drug; attempting to dispose of stolen property; making a false or misleading statement; having suspected stolen goods in custody (x 2); possessing a prescribed restricted substance (x 3); receiving stolen property; and possessing identity information with intent to commit an indictable offence.
The applicant failed to appear in court when required on 28 May 2009, 7 November 2012, 2 October 2013 and 28 October 2013. He has 4 convictions for the offence of failing to appear. He was in breach of bail on 28 October 2008.
At the time of the offences presently alleged, the applicant was on bail for other matters including for drug supply. He has committed offences whilst on bail in the past.

Police views

A document setting out the attitude of investigating police to the applicant's release application adds the information that when he reported to police pursuant to a bail condition on 28 July 2013 he was wearing the same distinctive jumper and had the same bag as depicted in the CCTV footage from the crime scene. It also includes that such was the seriousness of the victim's injuries that he spent four weeks in hospital.
The author, Detective Jamieson of the Middle Eastern Organised Crime Squad, also indicated that the applicant had been discharged from a community service order in 2010 with his file noted, "Completed unsatisfactory". While reporting on bail to Merrylands police station between 16 August and 25 September 2013 he provided four medical certificates for non-attendance. On 5 June 2013 he entered bail with a condition that he "comply with all directions of the MERIT team whilst on bail" but on 7 August 2013 was removed from the MERIT program with his file noted, "Non-compliant" and "Very poor attendance".
It was noted that the applicant was found in possession of false identification documents and credit cards in July 2013. Investigation of that matter pointed to a credit/fraud syndicate. Police believe that if the applicant is released on bail he would be able to again access further false identification documents to either flee the jurisdiction or otherwise avoid prosecution.
Another matter disclosed in the document is that at the time of the alleged offences the applicant was subject to a bail condition that he reside at a particular address in Guildford. Apparently, there is no such address.
Having regard to the seriousness of the matter, Detective Jamieson asserts that police are fearful that if the applicant is released on bail he may interfere with witnesses and/or their families or cause harm to the victim.
In a statement of facts prepared by Detective Jamieson it is alleged that between his house being searched on 10 October 2013 and his arrest on 2 January 2014 the applicant had been avoiding police by frequently moving his residence; living in hotels; and using false identity information.

Submissions for the applicant

The solicitor for the applicant provided written submissions which raise the following points: The applicant has been in custody since 2 January 2014 and will remain in custody for a further 5 months if not released on bail. There may be further delay given the proceedings concerning the alleged co-offender, Mahmoud Karanough is still pending in the Local Court. Reference was made to bail decisions under the repealed Bail Act 1978 (NSW) in which delay was held to be a significant factor. It was submitted that in this case the delay was an "exceptional circumstance". The Crown case is not strong. It is a circumstantial case with "deficiencies". It was submitted, for example, that there is no evidence of identification of the applicant; of forensic evidence like DNA or fingerprints; of the applicant possessing a firearm; or of the applicant assaulting the victim, discharging a firearm, causing any injuries, of being involved in stealing, damaging or setting alight the victim's car. The applicant's solicitor noted that Button J did not find the Crown case to be overwhelming; he found that it "could not be regarded as weak". The applicant is relatively young (now aged 24). This is said in the written submissions to be particularly significant given he "has never previously been sentenced to a term of imprisonment". The latter is wrong; it was conceded in oral submissions that he was imprisoned for four months in 2011 for driving whilst disqualified.
Submissions were also made asserting error in the judgment of Button J in his refusal to grant bail. This is not a review of the decision of his Honour. The Court must make its own assessment of the application. But one matter warrants comment: it was submitted that his Honour erred in having regard to matters relevant to the unacceptable risk test when considering the show cause requirement. There is nothing wrong with that; in Director of Public Prosecutions (NSW) v Tikomaimaleya at [24] it was recognised that matters relevant to the former may also be relevant to the latter.
The submissions set out in detail the applicant's position in relation to various matters listed in s 18 of the Bail Act. They include that he has available to him a surety in the form of an acceptable person agreeing to forfeit $5000 if he fails to appear in court and that he is prepared to abide by conditions such as "house arrest" as part of an "extremely strict bail regime" directed to ensuring that he be of good behaviour and appear in court when required.

Determination

In Director of Public Prosecutions (NSW) v Tikomaimaleya it was stated (at [25]) that: "The show cause test by its terms requires an accused person to demonstrate why, on the balance of probabilities (s 32), his or her detention is not justified. The justification or otherwise of detention is a matter to be determined by a consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances (s 31(1)) and not just by a consideration of those matters exhaustively listed in s 18 required to be considered for the unacceptable risk assessment."
There is some force in the applicant's solicitor's submission that the Crown case is not a strong one. Nevertheless, it appears to be a viable one.
The time during which the applicant has been held in custody to date is relevant and of undoubted concern. The more predominant concern at this point, however, is the question of how much longer he may be expected to be in custody before there is a determination of his guilt or otherwise. With the current trial listing that will be in the order of 6 months, given the trial is estimated to require about a month's hearing time.
However, the offences are extremely serious in their nature and a significant custodial sentence may be expected to follow if the applicant is convicted. Speaking generally, this provides an inherent risk that a person in the applicant's position may seek in some fashion to avoid such consequences.
The applicant faces the difficulty that his compliance with bail in the past has been quite poor in terms of appearing in court when required and committing further offences. There must be very real concern about him complying with bail, even with strict conditions of the type that are proposed. It is difficult to give any weight to an assertion today from the bar table that the explanation for his past transgressions was a drug addiction which has now been addressed.
Having regard to all of these circumstances, sufficient cause has not been shown on the balance of probabilities (s 32) to establish that the applicant's further detention is not justified. The application should be refused.

Amendments 11 February 2016 - Unrestricted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2016

Bail Act 2013(NSW)ss 16A, 18, 19, 32, 49, 67

Crimes Act 1900(NSW)ss 33(1)(b), 86(3), 154F, 195(1A), Pt

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