HAMZY v R [2013] NSWCCA 156

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HAMZY v R [2013] NSWCCA 156 Hearing dates: 11 June 2013 Decision date: 03 July 2013 Before: Hoeben CJ at CL at [1] Harrison J at [55] Beech-Jones J at [62] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Order that the interim suppression and non-publication orders made by this Court on 14 May 2013 in respect of the transcript and evidence in the sentence proceedings involving the applicant Zahra DCJ delivered on 10 May 2013 be continued. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (4) Set aside the so much of the interim suppression and non publication order made by this Court on 14 May 2013 as concerns the sentencing judgment of Zahra DCJ delivered on 10 May 2013 and in lieu thereof order that there be a suppression order in respect of those parts of that judgment that are listed in Schedule 1 hereto. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (5) Order that there be suppression and non-publication in respect of the evidence given by the applicant in these proceedings on 11 June 2013. Such order is made pursuant to s 8(1)(c) of the Act and is to take effect throughout the Commonwealth of Australia until further order of the Court. (6) Order that there be suppression and non-publication in respect of those parts of this judgment listed in Schedule 2 hereto pursuant to s 8(1)(c) of the Act. Such order is to take effect throughout the Commonwealth of Australia until further order of the Court. (7) Reserve liberty to apply to Harrison J in respect of the period up to and including 12 July 2013 and to Beech-Jones J thereafter in respect of any matter concerning the terms of these orders. Schedule 1 Suppressed Parts of the judgment of Zhara DCJ delivered on 10 May 2013 (Note : these are in addition to those matters covered by the non-publication order listed at the commencement of the judgment.) 1.That part of the judgment commencing "The offender's evidence of the circumstances in which he supplied prohibited drugs" on page 15 up to and including the phrase "the utilitarian benefit of the plea of guilty" on page 34. 2.The second sentence in the quote on page 49 being the sentence after the words "I know what happened" and before the words "I will not say I am sorry". 3.The sentence after the words "something of significance" in the third paragraph on page 51 Schedule 2 Pars [7], [8], [13], [14], [16] - third sentence, [24], [27], [29], [42] - last two sentences, [43], [50] - last two sentences, [51] - last two sentences, [52], [57] - last two sentences, [65] - other than first sentence, [66], [67] - other than first sentence, [68], [69] - second sentence. Catchwords: APPEAL - CRIMINAL - Appeal from refusal by District Court in its criminal jurisdiction to make a non-publication and suppression order - de novo appeal - Court Suppression and Non-publication Orders Act 2010 - admission of additional evidence - whether orders necessary to protect the safety of any person - whether evidence given in District Court gave rise to a risk of reprisals - meaning of word "necessary" in context of criminal proceedings. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Cases Cited: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 Hamzy v District Court of NSW [2013] NSWCA 130 In an application by Bassam Hamzy [2013] NSWCA 121 Category: Principal judgment Parties: Bassam Hamzy - Applicant Regina - Respondent Crown Australian Broadcasting Corporation - Intervenor Representation: Counsel: Mr G James QC/Mr P Lange/Mr J Kalantar - Applicant Ms N Noman SC - Respondent Crown Mr M Lewis - Intervenor Solicitors: AHA Taylor Lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown Grant McAvaney - Intervenor File Number(s): 2009/135919 Decision under appeal Date of Decision: 2013-05-10 00:00:00 Before: His Honour Judge Peter Zahra SC File Number(s): 2009/135919