Citation: Regina v Bassam Hamzy [2004] NSWCCA 243
Court: New South Wales Court of Criminal Appeal
Date: 23 July 2004
Judge(s): Mason P, Levine J, Kirby J
Background
The appellant was convicted after a jury trial before Bell J in the Supreme Court on five counts: the murder of a man outside a Paddington nightclub in the early hours of 30 May 1998; wounding another person with intent to cause grievous bodily harm; discharging a pistol at a third person with that intent; brandishing a firearm to prevent lawful apprehension; and, while in custody awaiting trial, conspiring with another person to murder a man who was expected to be a Crown witness.
The prosecution alleged that following an altercation near the nightclub, the appellant produced a handgun and fired multiple shots as members of the other group gave chase. The deceased was struck by two bullets at close range, the second fired downward while he lay on the ground. A police officer in a nearby vehicle witnessed much of the shooting and identified the appellant at a later parade.
The appellant gave evidence at trial, acknowledging his presence at the scene but denying he was the shooter. He attributed the shooting to a companion. Identification of the gunman was the central contest on the first four counts.
Legal Issues
- Whether similarity evidence was wrongly admitted at trial
- Whether the trial judge's directions to the jury on identification evidence were erroneous
- Whether certain documents were wrongly admitted into evidence
- Whether leave should be granted to raise a ground not objected to at trial
- Whether the trial judge erred in failing to recount the criminal history of a witness
- Whether the trial judge erred in failing to identify specifically which evidence provided corroboration
- Whether the trial judge failed to adequately summarise witness evidence in the summing up
- Whether the appellant was incompetently represented at trial
- Whether the verdict was unsafe
- Whether the sentences were unduly harsh, and specifically whether the sentencing judge failed to give adequate weight to the appellant's youth, prospects of rehabilitation, and the gravity of the offences
Decision
The Court of Criminal Appeal dismissed each ground of appeal against conviction. On the identification evidence, the court found the trial judge had directed the jury appropriately, noting that neither the Crown nor the defence had placed significant weight on most eyewitness accounts given the circumstances. The court found no error in the admission of similarity evidence or documents, observing that evidence described as prejudicial was so only because it was probative of guilt.
Leave was refused to raise one ground that had not been the subject of any objection at trial. On the competency of representation ground, the court found no basis to conclude the appellant had been incompetently represented. The overall verdict was not found to be unsafe given the strength of the prosecution case, which included eyewitness identification, evidence of admissions made to associates, and the conspiracy count arising from conduct while in custody.
On sentence, the court granted leave to appeal but dismissed the appeal. Mason P found that Bell J's conclusion that the appellant had intended to kill, rather than merely to inflict grievous bodily harm, was well open on the evidence, particularly given that the second shot was fired at close range while the appellant stood over the fallen victim. The court was satisfied that the sentencing judge had properly taken into account the appellant's youth, rehabilitation prospects, and the gravity of each offence.
The conspiracy count attracted specific comment from Mason P, who described it as one of the most serious conspiracies imaginable: a calculated arrangement to commit murder for deeply unworthy motives, directed at a likely Crown witness. A cumulative sentence for that count was treated as clearly appropriate.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but sentencing appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that evidence is not inadmissible merely because it is prejudicial to the accused, where the prejudice flows directly from its probative value in establishing guilt.
- Refusing leave to raise a ground not objected to at trial reflects the general principle that appellate courts will be slow to intervene where counsel made a deliberate or unexplained choice not to raise the issue below.
- A finding that a shooter intended to kill, rather than merely to cause grievous bodily harm, was held to be well open where the second shot was fired at close range over a victim already on the ground.
- In dismissing the sentencing appeal, the Court confirmed that cumulative sentences are appropriate for a conspiracy to murder a Crown witness, given the calculated nature of such conduct and the particularly serious motive underlying it.
- No error was established in the trial judge's failure to specify which particular evidence constituted corroboration, or to recount in detail the criminal history of a witness, provided the jury received adequate general warnings about the dangers of relying on such witnesses.
Legislation and Cases Referenced
Legislation:
- Evidence Act (NSW), s 165 (warnings about unreliable evidence, referenced in the judgment text)
Cases:
- No cases were cited in the metadata or in the portions of the judgment provided.