Citation: Application by Bassam Hamzy pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2025] NSWSC 650
Court: Supreme Court of New South Wales
Date: 23 June 2025
Judge: Dhanji J
Background
The applicant was convicted in July 2001 on five counts, including murder, wounding with intent, discharging a firearm with intent, threatening with an offensive weapon, and conspiracy to murder. The conspiracy count (count 5) alleged that, while the applicant was already in custody for the other offences, he conspired with a co-accused to murder a named individual between 18 and 30 August 2000. He was sentenced to 12 years imprisonment on that count, commencing December 2017 after his other sentences expired.
The applicant's alleged co-conspirator was tried separately in October 2001 and acquitted of the same conspiracy. The applicant appealed his own convictions and sentences to the Court of Criminal Appeal, which dismissed that appeal in 2004.
The applicant then brought this application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), seeking referral of his case to the Court of Criminal Appeal. His application rested solely on count 5, the conspiracy conviction.
Legal Issues
- Whether the acquittal of the alleged co-conspirator gave rise to a doubt or question as to the applicant's guilt for the purposes of s 79(2) of the CAR Act.
- Whether the applicant's conspiracy conviction was unsustainable as a matter of law following the co-conspirator's acquittal, given that conspiracy requires at least two parties.
- Whether the principle of incontrovertibility of an acquittal applied so as to make the applicant's conviction legally inconsistent with the co-conspirator's acquittal.
- Whether any broader inconsistency arose between the two verdicts, including in light of evidence led at the co-conspirator's separate trial that was not before the jury in the applicant's trial.
- Whether the court's discretion under s 79(3) to refuse to consider or deal with the application should be exercised.
Decision
Dhanji J refused the application, concluding that there was no doubt or question as to the applicant's guilt sufficient to warrant referral to the Court of Criminal Appeal.
On the core legal argument, the court found that a conspiracy conviction is not automatically rendered unsustainable by the acquittal of a named co-conspirator. The two accused were tried separately, on different evidence, and importantly their responses to the Crown case differed substantially. The principle of incontrovertibility of an acquittal, confirmed in authorities such as The Queen v Carroll (2002) 213 CLR 635 and Rogers v The Queen (1994) 181 CLR 251, prevents a court from treating an acquittal as equivalent to a finding of guilt. However, the court noted that this principle does not require a co-conspirator's conviction to be set aside simply because the alleged fellow conspirator was acquitted; the verdicts can be reconciled where the cases presented against each accused were not identical.
The court examined whether "fresh" evidence led at the co-conspirator's trial, which was not before the jury at the applicant's trial, produced any doubt about the applicant's guilt. It concluded that the differences in the evidence and the substantially different ways in which each accused met the Crown case meant the two verdicts were not legally inconsistent. There was, in the court's assessment, abundant evidence at the applicant's trial to support the conspiracy conviction.
The court also considered whether to exercise its discretion under s 79(3) to refuse the application on additional grounds, including that the matter had been dealt with in prior appeal proceedings. Because the application failed on its substantive merits, the court found it unnecessary to reach a concluded view on the discretion question. The application was refused.
Orders Made
- The application for referral of the whole of the applicant's case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) is refused.
Key Takeaways
- A conspiracy conviction is not rendered legally unsustainable as a matter of law solely because a named co-conspirator was subsequently acquitted at a separate trial, particularly where the two accused presented substantially different responses to the Crown case.
- The principle of incontrovertibility of an acquittal, as applied in The Queen v Carroll and Rogers v The Queen, operates to prevent a later proceeding from treating an acquittal as a finding of guilt, but does not automatically require that a co-accused's conviction be set aside following the other's acquittal.
- Under s 79(2) of the CAR Act, the threshold for referral requires material that, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet about the conviction. A later acquittal of a co-conspirator does not automatically meet that threshold.
- Where the evidence at each of two separate trials differed, and where the accused persons responded to the Crown case in different ways, verdicts that might superficially appear inconsistent may in fact be reconcilable.
- In dismissing the application, the Supreme Court left open the question of whether its discretion under s 79(3) would separately have justified refusing the application, given that the substantive merits were determinative.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79, Pt 8
- Crimes Act 1900 (NSW), s 26
- Criminal Appeal Act 1912 (NSW), s 6
- Crime Commission Act 2012 (NSW), ss 24, 29
Cases
- Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048
- Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review Act) 2001 (NSW) [2021] NSWSC 1061
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Dickson v R [2016] NSWCCA 105
- Director of Public Prosecutions v Shannon [1975] AC 717
- Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318; [2003] HCA 28
- Folbigg v R [2023] NSWCCA 325
- Gibson, Scott — Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7
- R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323
- R v Hamzy [2002] NSWSC 128
- R v Hamzy [2004] NSWCCA 243
- R v Hurrey (1987) 29 A Crim R 42
- R v Jones (1985) 20 A Crim R 142
- R v Mok (1987) 27 A Crim R 438
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
- The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32