Citation: Hamzy v R [2018] NSWCCA 53
Court: Court of Criminal Appeal, New South Wales
Date: 28 March 2018
Judges: Hoeben CJ at CL; Simpson JA; McCallum J
Background
The appellant was tried in the Supreme Court before Hulme J and a jury on charges arising from two separate shooting incidents in October 2012. Both incidents were alleged to have involved the same criminal association and the same underlying motive: retribution for insults made about the appellant's wife. The appellant denied any pre-existing motive and denied involvement in the first shooting entirely.
The second and more significant incident occurred on 14 October 2012 in Greenacre, when the appellant fired at least eleven shots from a pistol into a stationary Mercedes sedan. One occupant, Mr Amood, died after a bullet pierced his heart. A second occupant, Mr C, was wounded in the thigh and ankle. The appellant admitted firing the shots but claimed he acted in self-defence, believing Mr C was armed with a pistol and posed an imminent threat.
The jury acquitted the appellant of murder but found him guilty of manslaughter under the partial defence of excessive force in s 421 of the Crimes Act 1900 (NSW). The jury also found him guilty of wounding Mr C with intent to cause grievous bodily harm. The appellant sought leave to appeal both his convictions and his sentence.
Legal Issues
- Whether the jury verdicts of guilty of manslaughter and wounding with intent to cause grievous bodily harm were unreasonable or unsupported by the evidence.
- Whether, given the jury's implicit acceptance that the appellant believed his conduct was necessary for self-defence, it was still open to the jury to find that the conduct was not a reasonable response in the circumstances as the appellant perceived them (the key question under s 421 of the Crimes Act 1900).
- Whether the sentencing judge's findings were consistent with the jury's verdict.
- Whether the sentence imposed was manifestly unjust.
Decision
Conviction appeal
The sole ground of appeal was that the verdicts were unreasonable and could not be supported by the evidence. The court began by noting that the jury's manslaughter verdict necessarily implied that the Crown had failed to negative the appellant's belief that shooting was necessary for self-defence. However, finding that belief did not end the analysis. Section 421 also required the jury to determine separately whether the conduct was a reasonable response in the circumstances as the appellant perceived them.
The court held that these were distinct inquiries. Even accepting that the appellant believed he was under threat, it remained open to the jury to find that firing at least eleven shots into a car at close range, without looking where he was aiming and while looking away, was not a reasonable response to the threat as he perceived it. The Crown's case was that neither occupant was armed, and the ballistics evidence contradicted aspects of the appellant's account of the positioning of the threat. The court was satisfied the verdicts were reasonably open on the evidence, and the conviction appeal was dismissed.
Sentence appeal
The appellant argued that the sentencing judge's factual findings were inconsistent with the jury's verdict and that the resulting sentence was manifestly unjust. The court rejected both contentions. It acknowledged the inherent limitations in comparing sentences across different manslaughter cases, given the wide variety of circumstances that can give rise to that offence. No error was established in the sentencing judge's approach, and the sentence was not found to be manifestly excessive.
Orders Made
- Leave to appeal against conviction granted; appeal against conviction dismissed.
- Leave to appeal against sentence granted; appeal against sentence dismissed.
Key Takeaways
- Under s 421 of the Crimes Act 1900 (NSW), a jury's acceptance that an accused believed their conduct was necessary for self-defence does not automatically resolve whether the conduct was a reasonable response. These are two distinct elements, each requiring separate consideration.
- A verdict of manslaughter under the partial defence of excessive force is consistent with a finding that the accused held a genuine belief in the need to act defensively, while also finding that the manner and degree of force used was not a reasonable response in the perceived circumstances.
- The Court of Criminal Appeal confirmed that the reasonableness of the response under s 421(1)(b) is assessed by reference to the circumstances as the accused perceived them, but that this subjective framing does not insulate any and all force from scrutiny.
- Where a sentencing judge's findings are challenged as inconsistent with the jury's verdict, the appellant must establish actual inconsistency. A general disagreement with the weight given to competing considerations does not suffice.
- Comparing sentences across manslaughter cases carries inherent limitations, given the breadth of circumstances capable of founding that offence. The court reaffirmed caution in treating such comparisons as a reliable indicator of manifest excess.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 18, 24, 33(1)(a), 418, 419, 421
- Criminal Procedure Act 1986 (NSW): s 132(5)
- Evidence Act 1995 (NSW): s 38
- Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CR v R [2017] NSWCCA 29
- De Wet v R [2015] NSWCCA 23
- Diab v Regina [2009] NSWCCA 58
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Grant v R [2014] NSWCCA 67
- Hawi v R [2014] NSWCCA 83
- M v The Queen [1994] HCA 63; 181 CLR 487
- Pitt v R [2014] NSWCCA 70
- R v Hamzy [2016] NSWSC 1512
- R v Hamzy (No 2) [2016] NSWSC 1514
- Regina v Diab [2007] NSWSC 577
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Smith v R [2015] NSWCCA 193
- Vaiusu v R [2017] NSWCCA 71
- Vuni v R [2006] NSWCCA 171