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District Court 4 February 2019

Hamzy v R

[2019] NSWDC 7

Drugs
CRIMINAL LAW TRIAL TRIAL ON NEW INDICTMENT ABUSE OF PROCESS STAY OF PROCEEDINGS.

Citation: Hamzy v R [2019] NSWDC 7
Court: District Court of New South Wales
Date: 4 February 2019
Judge: Whitford SC DCJ

Background

The accused was charged with jointly importing a commercial quantity of methamphetamine, a border-controlled drug, contrary to the Criminal Code (Cth). His alleged co-offender, Romolo, was tried separately on a materially identical indictment. The Crown ran substantially identical cases against both men, relying on the same evidence and the same core factual and legal theory: that the two had agreed to jointly commit the importation offence.

Romolo was convicted, but his conviction was subsequently quashed on appeal on the basis that the jury's verdict was unreasonable and unsupported by the evidence. In the accused's own trial, the jury failed to reach a unanimous verdict and was discharged in November 2017.

The Crown then sought to retry the accused on an amended indictment that added the words "and unknown others" to the particulars of joint commission. Days before the retrial was due to commence, the Crown also gave notice that it intended to rely on an alternative statutory charge that would not require proof of joint commission with Romolo at all. The accused applied for a permanent stay of the retrial.

  • Whether the retrial on the amended indictment constituted an abuse of process because it was foredoomed to fail, given that the Court of Criminal Appeal had already found the evidence insufficient to establish the joint agreement alleged.
  • Whether it was oppressive and inconsistent with the due administration of justice to permit the Crown to reformulate its case, either by amendment or by relying on an alternative charge, in order to circumvent the forensic choices it had made in the original trial.
  • Whether a permanent stay was warranted in light of all the circumstances, including the public interest in the trial of serious criminal charges.

Decision

Whitford SC DCJ identified two independent grounds on which the stay application was put. On the first ground, his Honour concluded that the prosecution on the amended indictment was foredoomed to fail. The Court of Criminal Appeal had already determined, in Romolo's appeal, that the evidence was insufficient beyond reasonable doubt to establish the agreement between the accused and Romolo that lay at the heart of the Crown case. Because the Crown's case against the accused rested on materially identical evidence and the same legal theory, no properly instructed jury could convict on the amended indictment. The addition of the words "and unknown others" did not cure this defect.

On the second and broader ground, his Honour found that it would be oppressive and contrary to the due administration of justice to permit the Crown to re-try the accused in any form simply to remedy the consequences of its own considered forensic decisions. The Crown had made deliberate choices about how to frame and run the case at the first trial. Permitting a retrial on a differently constructed theory would effectively insulate the prosecution from the constraints of those choices and transform the criminal process into an instrument of oppression.

His Honour also addressed the Crown's last-minute proposal to rely on an alternative charge under s 313.3 of the Criminal Code. He held that this alternative did not escape the second basis for the stay, even if it was not technically foredoomed to fail in the same way as the amended indictment. Allowing the accused to be subjected to a second trial under any formulation of the charge, in order to work around erroneous prosecutorial decisions, would produce outcomes inconsistent with those reached in Romolo's substantially indistinguishable case.

The combination of factors, comprising the considered forensic choices underlying the original prosecution, the significant burdens of a second trial, and the risk of inconsistent outcomes in materially identical circumstances, was held to be sufficiently exceptional to justify the grant of a permanent stay.

Orders Made

  • Permanent stay of the criminal proceedings on the indictment dated 2 August 2018 granted.

Key Takeaways

  • The District Court confirmed that a retrial may constitute an abuse of process where an appellate court has already found the evidence insufficient to sustain the same essential element of the same charge, leaving the prosecution foredoomed to fail on materially identical evidence.
  • A permanent stay is an exceptional remedy, available where there is a fundamental defect going to the root of the trial that cannot be remedied by directions, and where continuation of the proceedings would be so oppressive as to constitute an abuse of process.
  • Where a prosecuting authority has made deliberate forensic choices in framing and running a case, those choices carry consequences. Permitting the Crown to reformulate the charge on retrial purely to avoid the effects of its original decisions was found, in these circumstances, to be inconsistent with the due administration of justice.
  • The prospect of inconsistent outcomes, arising from two accused being tried on materially identical evidence and legal theories but facing different verdicts because of how the question arose in each case, was a significant factor weighing in favour of the stay.
  • The public interest in the trial of serious criminal charges, while a weighty consideration, does not justify holding an unfair or oppressive trial, and must be weighed against the nature and extent of the unfairness to the accused.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) 1995, ss 11.2A, 11.2A(7), 307.1(1), 313.3
- Criminal Appeal Act, s 8(1)
- Criminal Procedure Act, ss 20, 129, 130
- District Court Act 1973 (NSW), s 156(1)

Cases
- UBS AG v Tyne [2018] HCA 45; 92 ALJR 968
- Williams v Spautz [1992] HCA 34; 174 CLR 509
- Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
- Grassby v The Queen (1989) 168 CLR 1
- The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717
- Romolo v R [2018] NSWCCA 3
- R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
- Maxwell v R [1996] HCA 46; (1996) 184 CLR 501
- Parker v R [1997] HCA 15; (1997) 186 CLR 494
- Gilham v R [2012] NSWCCA 131
- Clark (a Pseudonym) v The Queen [2016] VSCA 96; 258 A Crim R 511
- R v Jacobi (2012) 114 SASR 227
- R v Smith (1995) 1 VR 10
- R v Anderson (1991) 53 A Crim R 421
- Reid v The Queen [1980] AC 343
- Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797