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District Court 4 March 2022

R v Hamzy

[2022] NSWDC 99

DrugsPublic order & justice offences

Citation: R v Hamzy [2022] NSWDC 99
Court: District Court of New South Wales
Date: 4 March 2022
Judge: Bennett SC DCJ

Background

Two accused, referred to here as the accused and his co-accused, faced a four-count indictment set for trial in May 2022. The charges included supplying methylamphetamine, being knowingly concerned in that supply, dealing with proceeds of crime, and arranging money to assist a person evade apprehension. The accused was self-represented and incarcerated at the time of the application.

The accused brought a notice of motion seeking a temporary stay of proceedings on two grounds: first, that his incarceration had prevented him from adequately preparing his defence; and second, that he had been unable to consult personally with potential witnesses he wished to call to challenge the credibility of a key Crown witness, identified only as "witness I."

By the time of the hearing, Corrective Services had addressed many of the earlier access concerns. The application had narrowed to a single focus: whether the accused needed to speak personally with prospective witnesses, whose identities he had not disclosed to the court, before they could be approached to give evidence at trial.

  • Whether a temporary stay of proceedings was warranted to allow the accused to personally consult with potential witnesses before trial.
  • Whether the sensitivity of the proposed evidence, including its potential to expose those witnesses to criminal liability, justified delaying the trial.
  • Whether the court's processes, including compellable attendance, a Basha hearing, and certificates under s 128 of the Evidence Act 1995, could adequately protect the accused's right to a fair trial without a stay.

Decision

The court refused the stay. Bennett SC DCJ was not satisfied that the circumstances justified delaying the proceedings, given that the accused was represented by an experienced legal team, comprising both instructing solicitor and counsel, who were capable of making contact with the proposed witnesses and assessing their willingness to give evidence.

The court observed that if the witnesses were reluctant to cooperate voluntarily, they could be compelled to attend a Basha hearing (a pre-trial hearing used to test the evidence a witness is able to give). At such a hearing, a witness who feared self-incrimination could apply for a certificate under s 128 of the Evidence Act 1995, which would protect them from having that evidence used against them in later proceedings.

The court also noted a tactical concern arising from the accused's proposal to speak personally with witnesses before trial. Were those witnesses to subsequently give evidence challenging the Crown witness, the existence of a private conversation between the accused and those witnesses could invite suggestions of inappropriate collaboration. This was, the court noted, a matter for the legal team and the accused to consider together.

The court referred briefly to Kalid Kaddour v R [2013] NSWCCA 243, a case concerning s 128 certificates in analogous circumstances, noting that while the facts were not strictly comparable, the underlying principle was consistent: the court must ensure a fair trial, but must not be deployed in a manner that thwarts the proper administration of criminal justice.

Orders Made

  • The application for a stay of proceedings was refused.

Key Takeaways

  • A temporary stay of criminal proceedings will not readily be granted where the accused is represented by a competent legal team capable of performing the very witness-preparation functions the accused seeks to carry out personally.
  • Where proposed witnesses may expose themselves to criminal liability by giving evidence, the Evidence Act 1995 s 128 certificate mechanism provides a recognised procedural safeguard, and courts may compel attendance at a Basha hearing to test what evidence those witnesses can give.
  • The sensitivity of proposed evidence, standing alone, does not constitute a sufficient basis for staying proceedings when established court processes exist to manage that sensitivity.
  • Allowing an accused to conduct private, pre-trial communications with prospective witnesses, where those witnesses would then give evidence attacking Crown witnesses, carries a risk of later suggestions of inappropriate collaboration.
  • The District Court affirmed the principle, consistent with Kalid Kaddour v R, that courts must balance the accused's right to a fair trial against the broader imperative of maintaining the integrity and proper conduct of criminal justice proceedings.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), ss 193B(2), 315(1)(c)
- Evidence Act 1995 (NSW), s 128

Cases:
- Kalid Kaddour v R [2013] NSWCCA 243