The jury found him not guilty of murder but guilty of manslaughter on the grounds of excessive self-defence. Hamzy was a
Judgment Summary Supreme Court New South Wales
Court of Criminal Appeal
Hamzy v R [2018] NSWCCA 53 [Hoeben CJ at CL, Simpson JA and McCallum J] The Court of Criminal Appeal has dismissed an appeal against conviction and sentence brought by Mr Mohammed Hamzy. Hamzy was charged with the murder of Yehya Amood. The jury found him not guilty of murder but guilty of manslaughter on the grounds of excessive self-defence. Hamzy was also found guilty of wounding Mr C (a pseudonym) with intent to cause grievous bodily harm. Hamzy was sentenced by R A Hulme J to a total sentence of imprisonment for 11 years and 6 months with a non-parole period of 8 years and 6 months. The Crown case was that, on 14 October 2012, Hamzy arranged to meet Mr C. Both men were members of “Brothers for Life”. A text sent by Hamzy to Mr C stated that Hamzy was at his mother’s place but in fact he was elsewhere. Hamzy asked a friend, Mr G, to drive him there. Mr C travelled with Mr Amood and parked his car outside the house. When Hamzy saw Mr C’s car he asked Mr G to pull up alongside it and fired at least 11 shots at Mr C’s car. At least 4 of these shots were fired into Mr C’s car while Mr G’s car was alongside it. The remaining shots were fired towards the car as Mr G was driving away. Mr Amood was struck with a single bullet which killed him. Mr C was struck in the right thigh and right ankle and was conveyed to hospital. He had made a full recovery by the time of the trial. The principal issue at the trial was the issue of self-defence. The Crown case was that Hamzy wanted to confront Mr C because he had been told Mr C had referred to Hamzy’s wife in unfavourable terms. Hamzy’s case was that Mr C wanted to confront Hamzy because Hamzy had been having an affair with Mr C’s wife. Hamzy, Mr G and Mr C all gave evidence at trial that Mr C had a gun and had been waiting to shoot Hamzy when he arrived. Hamzy said he saw Mr C holding a gun and fired shots in a ‘pre-emptive strike’. The evidence at trial which raised the issue of self-defence was inconsistent with prior statements made by Mr C and Mr G. The sole ground of appeal in the conviction appeal was that the verdicts were unreasonable, and could not be supported, having regard to the evidence. Hamzy argued that the verdict of guilty of manslaughter by excessive self-defence meant that he ‘believed it was necessary’ to shoot Mr C but that it was ‘not a reasonable response in the circumstances as he perceived them to be’. It was argued that, once the jury had accepted that Hamzy believed it was necessary to shoot Mr C, it was not open to them to be satisfied beyond reasonable doubt that his response was not a reasonable response in the circumstances as he perceived them. It was Hamzy’s case that, for the jury to have found that he believed it was necessary to shoot at Mr C, he must have believed that he was about to be shot himself, and that it was therefore unreasonable for the jury to have found
that this pre-emptive strike was not a reasonable response in the circumstances as he perceived them to be. The majority of the Court (Hoeben CJ at CL and McCallum J) found that the conviction appeals should be dismissed. Hoeben CJ at CL found it was open to the jury to accept parts of the witnesses’ evidence but not their evidence in its entirety, especially having regard to misgivings about the credibility of the witnesses. His Honour found that the jury could have made determinations about key facts which were not consistent with the applicant’s case on appeal but which were reasonable, having regard to the evidence. His Honour found that it would have been open for the jury to have concluded that it was the applicant’s belief that Mr C might use his pistol to shoot the applicant but not that he was likely to shoot him and that this would have been a reasonable finding by the jury which would explain why they found that the applicant believed his conduct was necessary but that it was not a reasonable response in the circumstances. In a separate judgment, McCallum J agreed with the orders proposed by Hoeben CJ at CL. Her Honour held that the second element of self-defence subjects an accused person’s subjective assessment of his circumstances to the test of objective community standards. Her Honour considered that, while the jury might have accepted that the applicant honestly believed that he had to shoot or be shot, it was still open to the jury to take the view that the applicant was too quick to pull the trigger and that he fired his pistol recklessly. For this reason Her Honour agreed with the orders proposed by Hoeben CJ at CL. The issues in the appeal against sentence were whether the sentencing judge erred in relation to the objective seriousness of the offences and the moral culpability of the offender and whether the sentence for manslaughter was manifestly excessive. The Court (Hoeben CJ at CL and McCallum J) found that the sentencing judge’s assessment of the manslaughter offence as one of “considerable seriousness” and the wounding with intent offence as one of “moderate seriousness” were open. His Honour’s assessment that these offences were serious ones of their kinds were explained by the fact that the applicant brought about a situation where a confrontation was inevitable and that his perception of the situation he found himself in could be said to be no higher than a risk that Mr C “might” use the pistol. The Court found that the sentence imposed with respect of the manslaughter offence was not manifestly inadequate. The Court found that the four comparative cases relied upon by the applicant did not reveal any unifying principles and therefore were of little relevance. The Court found that the sentence properly reflected the fact that the applicant took a loaded handgun to a meeting planned with Mr C with foresight that he might use it. The Court found that the appeal against sentence be dismissed. Simpson JA dissented. Her Honour said that it was difficult to see how the jury could have concluded as a reasonable possibility that the applicant believed that it was necessary to shoot at Mr C unless it also accepted as a reasonable possibility that he was at risk of being shot by Mr C. Considering the conduct involved was so extreme, to find the applicant had the relevant belief, the jury must have found that he believed he was in imminent danger of being shot. Once the jury accepted this, her Honour found it impossible to reconcile the further conclusion of the jury that the conduct was not a reasonable response to the
circumstances as he perceived them. Her Honour would have allowed the appeal against conviction on both counts and quashed the convictions and sentences.
