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7
Court of Criminal Appeal 3 July 2013

HAMZY v R

[2013] NSWCCA 156

DrugsPublic order & justice offences
APPEAL CRIMINAL PUBLICATION AND SUPPRESSION ORDER DE NOVO APPEAL COURT SUPPRESSION AND NON PUBLICATION ORDERS ACT 2010

Citation: Hamzy v R [2013] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 3 July 2013
Judges: Hoeben CJ at CL; Harrison J; Beech-Jones J

Background

The applicant had pleaded guilty to serious drug supply and kidnapping offences and was sentenced in the District Court in May 2013. During the sentencing proceedings, he sought the continuation of suppression and non-publication orders that had originally been made on national security grounds connected to evidence about stolen rocket launchers.

The primary judge, Zahra DCJ, declined to continue the suppression orders after concluding there was no longer a national security basis and no sufficient evidence of safety concerns for any person. His Honour delivered the sentencing remarks in open court, and a news outlet published an online report of the proceedings the same afternoon.

Following the sentencing, the applicant made urgent applications to the Court of Appeal and subsequently to the Court of Criminal Appeal, seeking suppression orders primarily on the basis that publication of the proceedings created a risk to his personal safety. Interim suppression orders were made by the Court of Criminal Appeal pending the hearing of the leave application.

  • Whether leave to appeal should be granted against the District Court's refusal to continue suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (the Act)
  • Whether the appeal, if granted, should be conducted as a de novo hearing with fresh evidence admitted
  • Whether the evidence before the court satisfied the test in s 8(1)(c) of the Act, namely that a suppression or non-publication order was "necessary" to protect the safety of any person
  • The proper scope of any suppression or non-publication orders, given the competing interests of open justice and personal safety

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal in the sense that it did not reverse the primary judge's core decision at the time he made it. The central question became whether the material before this Court, including additional evidence given by the applicant on 11 June 2013, was sufficient to satisfy s 8(1)(c) of the Act.

Beech-Jones J, with whom Harrison J agreed on the orders, found that once the applicant's further evidence given in the Court of Criminal Appeal was considered, it was unrealistic to assess the risk of reprisals solely by reference to what a reader might make of the sentencing judgment. The test under s 8(1)(c) does not turn on whether a proposed informer's motivations were genuine or whether their assistance was ultimately effective. Rather, the test requires an objective assessment of the level of risk posed to the person's safety.

The Court was satisfied that the threshold of "necessary" in s 8(1)(c) was met on the evidence before it, and made orders suppressing and prohibiting publication of the applicant's evidence given in these proceedings, as well as parts of the judgment itself. However, the Court did not suppress the entirety of the sentencing judgment. A significant portion of that judgment addressed the applicant's criminal conduct and sentencing matters that raised no safety concerns, and suppression of those parts was not warranted.

The Court also noted that any challenge to the findings of fact made by Zahra DCJ in the sentencing judgment was a matter properly pursued by way of an appeal under the Criminal Appeal Act 1912, and that no such challenge had been made in this application.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Interim suppression and non-publication orders made by the Court of Criminal Appeal on 14 May 2013 (in respect of the transcript, evidence, and sentencing judgment) revoked
  • Suppression and non-publication order made in respect of the evidence given by the applicant in the Court of Criminal Appeal proceedings on 11 June 2013, pursuant to s 8(1)(c) of the Act, to take effect throughout the Commonwealth of Australia until further order
  • Suppression and non-publication order made in respect of parts of the Court of Criminal Appeal's judgment, pursuant to s 8(1)(c) of the Act, to take effect throughout the Commonwealth of Australia until further order

Key Takeaways

  • Under s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010, the test for whether an order is "necessary" to protect a person's safety requires an objective assessment of the level of risk, not a judgment about the sincerity of a person's motivations in cooperating with authorities.
  • Fresh evidence admitted on a de novo appeal can independently satisfy the statutory threshold even where the primary judge correctly refused to make an order on the evidence before them at first instance.
  • In dismissing the appeal while still making new suppression orders, the Court distinguished between the correctness of the primary judge's original decision and the different evidentiary position before the appellate court.
  • Suppression orders under the Act should be limited in scope to what the safety interest actually requires; the Court declined to suppress the entirety of the sentencing judgment where substantial portions of it raised no safety concerns.
  • A published redacted version of the judgment was ordered, reflecting the Act's balancing of open justice against the need to protect specific individuals, with the full version unavailable to the public.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), particularly ss 8(1)(c) and 14(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 86(2)(a)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
- Hamzy v District Court of NSW [2013] NSWCA 130
- In an application by Bassam Hamzy [2013] NSWCA 121