Commissioner of Police NSWPF v Amoun (No 2)

On 18 December 2020 Garling J made orders under the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) against Ghassan Amoun and Ibrahim Hamzy: Commissioner of Police, NSWPF v Amoun & Anor [2020] NSWSC 1810. Ghassan Amoun (the applicant) now applies to vary the orders to allow him to attend the funeral of his cousin, Mr Bilal Hamzy, which is to take place tomorrow 23 June 2021. Although the application seeks that the non-association orders contained in Garling J's orders be temporally suspended, the orders I intend to make will be more restrictive in a way I will explain.

The non-association order made by Garling J, which is clause 8 of the annexure to his Honour's judgment, provides:

As Garling J made clear in his judgment, the purpose of the orders was to inhibit serious criminal activity, which has taken place and which was likely to continue to take place between two families, being the Hamzy and Alameddine families. The significance of the risk to members of the public and to members of each of the families is clearly set out in Garling J's judgment and, in particular, [128] to [130].

For that reason his Honour considered that not only should there be restrictions on the two families from contacting each other but also that there should be restrictions within the Hamzy wider family. The result was that the non-association condition prevented the two defendants having any contact with Bassam Hamzy, each other, Haisssam Hamzy and Tareek Hamzy, in addition to non-association with the Alameddine family.

The present application arises because on the 17 June 2021 Bilal Hamzy was shot and killed in the Sydney CBD. His funeral is to take place tomorrow, commencing at the Lakemba Mosque at 9.30am; with the burial to take place subsequently at Rookwood Cemetery and the whole funeral arrangements concluding at around 2pm.

The deceased person was a cousin of the applicant.

The application is opposed by the Commissioner of Police. Ms Melis, of counsel, who appears for the Commissioner, relies particularly on what Garling J has said at various places in his judgment, which were directed to the collaboration between the members of the Hamzy family in various retaliatory attacks perpetrated against the Alameddine family.

In relation to the non-association conditions Garling J said at [188] and [189]:

The purpose of restricting association within the family was designed to prevent the arrangement of further serious criminal activity entered into as part of the retaliations. On that basis Ms Melis submits that that purpose would be undermined by permitting the applicant to be able to have any contact or association with the persons named in cl 8.1 of the annexure to the judgment.

It is apparent from Garling J's judgment that he considered that Bassam Hamzy was the organising force within the family; and that the other members of the family carried out his orders and intentions by engaging in criminal activity generally, and in relation to the retaliatory attacks. Mr Ozen, of senior counsel, for the applicant, has informed me that Bassam Hamzy will not be attending the funeral. It is a significant factor, in my mind, that Bassam Hamzy will not be in attendance at the funeral.

Two of the other persons with whom the applicant must not associate have not had orders under the Crimes (Serious Crime Prevention Orders) Act made against them, although Garling J detailed in his judgment their, perhaps, more limited involvement in the criminal activity.

The final person with whom the applicant must not associate is Ibrahim Hamzy, who was the other defendant in the proceedings before Garling J. At the present time no application has been made to the Court by him for a variation of the orders made against him. I do not place a great deal of significance on the fact that, as presently advised, he will not, therefore, be at the funeral, but it is a factor to take into account.

Ms Melis also relies upon recent intelligence that suggests that the applicant is said to be the next person to be targeted, and it is likely that his movements will be monitored, if he is allowed to attend the funeral.

In my opinion there can be no doubt that there will be a heavy police presence at the funeral. As Mr Ozen put it, that factor suggests that the safest place for the applicant is likely to be the funeral.

There is no evidence which would suggest that the funeral will be used by the applicant for the purpose of facilitating the commission of further criminal offences, although I accept, as a result of what Garling J has said in his judgment, that there is always a risk where the Hamzy members are allowed to associate with each other.

Ms Melis has also drawn attention to the fact that the present application is made at what she has described as a critical juncture, namely, the shooting of Bilal Hamzy in the Sydney CBD, putting members of the public at significant risk. Certainly, the application is made following the latest killing, but that, of course, is also the explanation for the application.

Orders made under the Crimes (Serious Crime Prevention Orders) Act are a serious restriction on the liberty of citizens, although where it is necessary to make those orders that liberty must be restricted. It does not seem to me, however, that permitting the applicant to be in attendance for a limited period of time at his cousin's funeral is likely to increase the risk to the safety of members of the public or indeed to the applicant himself.

Section 12 of the ACT permits applications to various serious crimes prevention orders, but such applications can only be made with the leave of the Court. Section 12(2) provides that leave may only be granted if the Court is satisfied that "there has been a substantial change in the relevant circumstances since the order was made". I am satisfied that the killing of Bilal Hamzy is a substantial change in the relevant circumstances to justify leave being given to the applicant to seek the variation that he does.

I note that subs (3) requires the Court to have regard to the same factors that the Court is required to have regard to when considering whether or not to make a serious crime prevention order. I have read with care Garling J's judgment and noted the factors that justified his Honour in making the orders. I do not consider that those reasons are undermined by permitting the variation that is now applied to be made.

The suspension will only relate to that part of cl 8 that will enable the applicant to approach, contact, speak to or associate directly or indirectly with Haissam Hamzy, Tareek Hamzy, and Ibrahim Hamzy if he is permitted by this Court to attend the funeral. The suspension will not relate to electronic communication via telephone, text message, email or other social media.

The Commissioner sought that a suppression order be made in relation to the present application and my judgment until after the funeral, in order to minimise the risk of violence at the funeral; violence, in particular, directed against the applicant in the light of the police intelligence referred to earlier. In my opinion such an order should be made and remain in place until one hour after the conclusion of the suspension of the non-association orders.

Accordingly, I make the following orders: