R v Hamzy

[2022] NSWDC 99

District Court of NSW|2022-01-27

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-01-27

Source

Original judgment source is linked above.

Judgment (5 paragraphs)

[1]

INTRODUCTION

Bassam Hamzy and Martin Alan Churchill are for trial on 9 May 2022, at this stage before me, upon an indictment with four counts.
Mr Hamzy is charged with an offence of supplying 452.8 grams of methylamphetamine, an amount of less than the commercial quantity applicable to that drug, contrary to s 25(2) Drug Misuse and Trafficking Act 1985. Martin Churchill is charged with an offence of being knowingly concerned in the supply of that same quantity of drug, contrary to s 25(2) of the Act. Count 3 is against both accused alleging that they dealt with the proceeds of crime, namely, $14,000, contrary to s 193B(2) Crimes Act 1900, and both are charged in count 4 with arranging money to be provided to a man intending to hinder the apprehension of that man who had committed a serious indictable offence, contrary to s 315(1)(c) Crimes Act 1900.

[2]

PREVIOUS DECISIONS

I delivered judgement on 13 December 2021 upon an application brought by Mr Churchill for separate trials and upon the question of admissibility of evidence that the Crown intended to advance in the case it has against both accused. Initially Mr Hamzy did not join in that application for separate trials but, as time progressed through the phases of the proceedings that were extending by that time, he did join in the application, relying upon the notice of motion filed on behalf of the accused Churchill. In the interim, before that judgement, the Crown filed a notice of motion for rulings upon evidence which the Crown urged should be admitted against both accused. The judgement is of some length dealing with those matters and I do not need to repeat all that I had to say there.

[3]

APPLICATION FOR THE STAY OF PROCEEDINGS

Mr Hamzy now brings, by way of a notice of motion, an application for a stay of the proceedings against him. On an occasion when the matter was before me, during argument when the matter was listed for the taking of evidence from Corrective Services officers, he confirmed that the stay he sought was a temporary stay, at that stage of the proceedings, upon two broad bases. One, the lack of opportunity to prepare his case because of the circumstances of his incarceration and, secondly, the lack of opportunity to consult with witnesses upon whom he would rely if they were willing to come to Court to support the attack to be mounted upon the credibility of witness I, a critical witness in the case that the Crown has against the accused.
Evidence taken from Corrective Services officers over some days, ultimately leading to the adjournment of the proceedings until submissions could be provided upon this application. Today Mr Hamzy presented written submissions in support of the orders that he seeks.
Before then, a folder of material was provided with a wealth of information upon which Mr Hamzy argues, perhaps with some justification I might add, in support of the criticism he has about how he was targeted by the police and reliance by the prosecution upon two witnesses who have been, in effect, protected from the consequences of extensive misconduct upon which they have engaged.
Predominantly though the application is focused upon the witness identified as witness I.
The written submissions he provided on the first two and a half pages have a comprehensive summary of the statements of principle which guide the courts in the conduct of criminal proceedings to ensure that trials are fair and that the accused has a fair chance of acquittal with their rights properly protected. There is no need for me to repeat the statements of principle, which Mr Hamzy has so clearly provided. They are without controversy, I would have thought, and the authorities to which he refers are clearly applicable; nothing could be advanced to gainsay what he has provided in that statement of the law.
At para 14 he focused his submissions regarding some of those authorities upon the proposition that he did not wish to face a trial which has denied him the proper opportunity to meet the charges brought or be prevented from adequately testing and meeting the evidence. He states that he bears the onus of rebutting the Crown case by pointing to evidence which is capable of corroborating other evidence to confirm or support or strengthen it, in the sense that it renders his other evidence more probable. His other evidence is to the effect that witness I is not to be accepted as truthful or accurate in his assertions implicating the accused in the misconduct with which he is charged.
The submissions continue with the proposition that the only available remedy to prevent him from losing a real chance of acquittal in this trial is a stay until Corrective Services grant him the time, facilities, and access required to prepare his defence and meet the charges against him. The evidence given by Corrective Services officers on the last occasion, and the accommodations which have been extended to Mr Hamzy since then, as I understand from what he said to me today, have addressed those concerns and the focus of the stay application now is upon the tactical considerations required to challenge the evidence anticipated from witness I.
It is worthwhile quoting what he provided at para 21 in his submissions: "In my respectful submissions the relevant and persuasive evidence can and could be called which would go to the heart of the case that being witness I's evidence. The evidence will not only go towards his credibility but would also go to the fallacy he was being paid $3,500 an ounce by me."
In para 24 he wrote: "It is my submission that the evidence from the witnesses I propose to call will totally contradict the evidence of witness I. The proposed evidence if willingly given would also expose the absurdity of witness I's evidence that I needed him to deliver any drugs or would have paid him the amount he claims. This is even more relevant since even the amounts and facts as stated by witness I don't even add up or correlate."
At para 25: "If the evidence I wish to put before the Court was not so sensitive then no issue would arise. But due to its sensitivity, explanation of the law and the willing cooperation of the witness is imperative, since there is no point in calling if you may surprise, shock or scare them into a lie. Due to the sensitivity of the evidence I wish to extract, respect for the witness consent and permission is therefore required. It is my submission that [if] I am not given the facility to prepare or call such witnesses, then the trial will be unfair. It is my respectful submission that the trial should be stayed until I am granted the ability to prepare and defend myself as I wish and on the same terms as the police have in bringing this case against me. If the evidence was not so sensitive the solicitor or barrister could speak to the witness, but due to the nature of the evidence it is doubtful if the potential witnesses would even listen to the proposal let alone talk or be persuaded to come to Court and give such sensitive evidence by a person they don't even know."
In the submissions he made orally today, speaking to those he gave in writing, he refined the purpose he has in wanting to speak with these so far unnamed persons to ensure that they are comfortable with the requirement that they come to Court to give evidence on his behalf, or indeed evidence in the Crown case, if it was thought appropriate, to challenge the veracity of witness I.
The concern he has is the sensitivity of the issue and that arises because these people have been involved in other misconduct and, when they are called upon to give evidence challenging the assertions of witness I, it is at least probable that they will give evidence that would expose them to some sanction for their own criminal misconduct.
Moreover, it would, as I understood the submission, give rise to the risk that their evidence would indirectly, if not directly, provide intelligence to law enforcement agencies to their detriment, and thus concern for their interests has led him to the view that it is appropriate that he speak with them first to confirm whether they are willing to give evidence in terms that he understands they would be able to provide, and if they fear embarrassment in being required to do so and declined the request, he would not take the matter any further.

[4]

DECISION

I am not satisfied that it is appropriate to grant a stay of proceedings for such a reason.
The accused is represented by a competent and experienced legal team in Mr Ross Hill instructing Mr Dennis Stewart of counsel. It would seem to me that both of those gentlemen could be given the names of the individuals upon which Mr Hamzy wishes to rely, and they in the discharge of their function could take steps to conference each of these witnesses to ascertain their willingness to come to Court and give evidence. If the evidence is so important, notwithstanding their reticence, they can be compelled to attend Court to be examined and cross-examined at a Basha hearing to confirm the extent of the evidence they were in a position to give.
They would then of course be compellable, if they chose not to answer questions, subject to a decision made upon the application of s 128 Evidence Act 1995 about the grant of a certificate against the use of any evidence they gave that might incriminate them in some misconduct. It would not be an appropriate function of the Court, I would suggest, to delay a trial to allow Mr Hamzy to speak one-on-one with proposed witnesses when he is served so well by the team that has been assembled to defend him in the trial.
There is also a tactical consideration that no doubt Mr Stewart and Mr Hill will want to consider. If there was a confidential discussion between the accused and these witnesses who then came to Court to give evidence attacking the veracity of the Crown witness, that leaves open the suggestion that there has been some inappropriate combination between Mr Hamzy and those witnesses to achieve evidence that he desires in his trial. They are matters though that would no doubt be considered by counsel and his instructing solicitor and would involve a decision for them in consultation with Mr Hamzy.
I am not persuaded that there should be a stay of the proceedings for the reasons advanced by Mr Hamzy in the circumstances. Accordingly, the application for the stay is refused.
There was during the discussion today, and this was mentioned on a prior occasion, a reference to a decision of the Court of Criminal Appeal in Kalid Kaddour v R [2013] NSWCCA 243. The case concerned an application for a certificate pursuant to s 128 Evidence Act 1995 by an accused who wanted to give evidence implicating him in other crime to explain why he was not guilty of the crime with which he was charged. I was the judge at first instance who refused the application for the certificate and the Court of Criminal Appeal dismissed Mr Kaddour's appeal from the decision. The facts in that case are not strictly comparable with the facts with which I am concerned but the essential feature of both cases is that the Court, whilst ensuring that an accused person has a fair trial with every opportunity that should be available to defend themselves against a criminal charge, should not be used in such as fashion as might be seen to be thwart the proper conduct of the criminal justice process.