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Court of Criminal Appeal 22 April 2013

R v Hamze

[2013] NSWCCA 89

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW BAIL CROWN APPEAL S 45(1)(B)

Citation: R v Hamze [2013] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 22 April 2013
Judge(s): Price J (with Davies J and Barr AJ agreeing)

Background

The respondent was charged with two counts of shooting with intent to murder under s 29 of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 25 years' imprisonment. The charges arose from an incident on 28 August 2012, when it is alleged the respondent fired a semi-automatic pistol at a father and his teenage son outside a residential address in Auburn, wounding the son in the abdomen. At the time of the alleged offences, the respondent was on bail for separate matters and subject to a good behaviour bond.

On 11 April 2013, Beech-Jones J in the Supreme Court granted the respondent conditional bail with a range of conditions including curfew, daily reporting, and a $150,000 surety. The primary judge assessed the Crown identification case as "relatively weak."

The Director of Public Prosecutions applied to the Court of Criminal Appeal under s 45(1)(b) of the Bail Act 1978 (NSW) to review that decision and sought revocation of bail. The review proceeded as a hearing de novo, meaning the Court examined the matter afresh rather than reviewing for error.

  • Whether the primary judge's assessment of the Crown case as "relatively weak" on identification remained correct in light of Crime Commission interview material not placed before the primary judge at the bail hearing.
  • Whether, taking into account all relevant considerations under s 32 of the Bail Act, bail should be revoked or continued with additional conditions.
  • What weight to give to the respondent's prior criminal history, his status on bail and a good behaviour bond at the time of the alleged offences, and the risk of interference with Crown witnesses.

Decision

The Crown conceded that Crime Commission interviews with the two complainants, conducted in December 2012, had not been placed before the primary judge. Those interviews contained evidence directly identifying the respondent as the shooter. Price J found that this material had a material bearing on the strength of the identification case and noted that the Office of the Director of Public Prosecutions bears responsibility for ensuring all relevant material is before the court when bail is opposed.

Price J weighed several factors against the grant of bail: the respondent was on conditional liberty (both on bail and subject to a good behaviour bond) when the alleged offences occurred; his criminal history included convictions for grievous bodily harm, possession of a prohibited weapon, and possession of an unauthorised firearm; and the alleged offences were serious. The seriousness of the charges and the safety of the complainants, as the principal witnesses, also warranted consideration.

Balanced against those factors, there was no evidence that the respondent had attempted to threaten or interfere with the complainants in the period since his arrest. Price J concluded that, with appropriate additional conditions, it was unlikely the respondent would commit a serious offence on bail or interfere with Crown witnesses.

Rather than revoking bail entirely, the Court continued bail subject to strengthened conditions, including a prohibition on any contact with the complainants and their family, restrictions on telephone use, and a provision for automatic revocation on any breach.

Orders Made

  • Bail granted by Beech-Jones J on 11 April 2013 to continue with the following additional conditions:
  • The respondent is not to approach, contact, or attempt to communicate in any way with the two complainants or members of their family.
  • The respondent is not to use any landline telephone number other than one notified to the officer-in-charge within 7 days of the order.
  • Bail is automatically revoked upon any breach of any bail condition, and the respondent may thereupon be arrested by any police officer.

Key Takeaways

  • A bail review under s 45(1)(b) of the Bail Act 1978 is a hearing de novo: the appellate court examines the bail question afresh and is not limited to reviewing the primary judge's reasoning for legal error.
  • Where new or previously undisclosed evidence strengthens the Crown's case, it can alter the court's assessment of bail, even if the primary judge's conclusion was understandable on the material available at the time.
  • Price J expressly noted that the Office of the Director of Public Prosecutions bears an obligation to place all relevant material before the court when opposing bail, signalling that incomplete briefing may adversely affect the Crown's position.
  • Being on bail or subject to a good behaviour bond at the time of alleged offences is a factor that militates against the grant of bail, particularly where the new charges involve serious violence.
  • Revocation is not the only available remedy on a Crown bail review: the Court of Criminal Appeal may instead continue bail with significantly strengthened conditions where the risk of reoffending or witness interference can be adequately managed.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW): ss 9(1)(b), 9B(1), 9B(3), 32, 45(1)(b)
- Crimes Act 1900 (NSW): s 29 (shooting with intent to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 9 (good behaviour bonds)

Cases: No cases were cited in the judgment.