Application by Bassam Hamzy pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   The applicant, Bassam Hamzy, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) has made an application for an inquiry into his conviction for conspiracy to murder contrary to s 26 of the Crimes Act 1900 (NSW).

2. [2]

   On 24 July 2001, following a trial by jury conducted in June and July 2001, the applicant was convicted on each of five counts in an indictment charging him with the following:

3. [3]

   This application relates only to count 5.

4. [4]

   The first four offences occurred in Oxford Street, Paddington at around 3.00am on 30 May 1998. The applicant was arrested in relation to the first four offences on 30 January 1999 and refused bail. The fifth offence occurred while the applicant was in custody with respect to the other offences.

5. [5]

   On 15 March 2002, Bell J sentenced the applicant as follows (R v Hamzy [2002] NSWSC 128):

6. [6]

   The applicant appealed to the Court of Criminal Appeal (CCA) against his convictions and the sentences imposed on him. His appeal was dismissed: R v Hamzy [2004] NSWCCA 243.

7. [7]

   The applicant’s alleged co-conspirator with respect to count 5, Radwan Zraika, was tried separately on a single count charging that he conspired with the applicant to murder Khaled Hammoud. Following a trial by jury conducted in October 2001, Mr Zraika was found not guilty of the offence and subsequently acquitted and discharged on 22 October 2001.

8. [8]

   The applicant submits that there is a doubt or question as to his guilt. He contends that the jury’s verdict in relation to count 5 is unsustainable as a matter of law because there could be no conspiracy between the applicant and Mr Zraika given Mr Zraika’s acquittal.

The Relevant Provisions

1. [9]

   Sections 78 and 79 of the CAR Act provide:

2. [10]

   The legislation is an acknowledgment that, despite the protections for accused persons provided by the process of criminal trials and appeals, there remains a place for review to “overcome injustices that sometimes arise in the course of the criminal justice system”: Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review Act) 2001 (NSW) [2021] NSWSC 1061 at [5]; Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048 at [10]; Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318; [2003] HCA 28 at [60], [64]-[75].

3. [11]

   In Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251, Johnson J reviewed the principles applicable to the consideration of applications under s 79 (at [6]-[9]):

4. [12]

   Subsequently in Gibson, Scott — Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577, Yehia J provided the following helpful summary of the relevant principles (at [13]):

5. [13]

   It is necessary to consider the application in accordance with the statutory provisions and the principles developed in relation to them.

The Application

1. [14]

   The applicant provided a written application, which comprised:

2. [15]

   The Attorney General provided written submissions filed 25 March 2025, together with the affidavit of Catherine Moore sworn 25 March 2025, which exhibited Exhibit CM-1. There was some delay in the respondent being in a position to properly respond to the application due to the need to obtain the records which ultimately formed the exhibit to Ms Moore’s affidavit. That exhibit includes the entirety of the material relating to the applicant’s conviction and sentence appeal to the CCA. This contains, in addition to the transcript of the CCA hearing, the grounds, submissions and related appeal documents, along with the eight volumes provided to the CCA containing the trial materials. Those eight volumes include the transcript of the trial and a large number of exhibits. As is usual, not all exhibits were reproduced or otherwise provided on the appeal. The index sets out those exhibits which were not provided. There was some difficulty in obtaining volume 7 which contained the transcript of the addresses of counsel, the summing up, a judgment, the proceedings after conviction, including in relation to sentence, and the remarks on sentence. That material was subsequently sourced from the Office of the Director of Public Prosecutions (ODPP), with the exception of the judgment. The absence of that judgment, which determined an application to discharge the jury, is not of any consequence to this application.

3. [16]

   The exhibit to Ms Moore’s affidavit also includes material in relation to Mr Zraika’s trial sourced from the District Court and the ODPP. The material in relation to Mr Zraika’s trial is incomplete. It includes, inter alia, the indictment, a list of exhibits and MFIs, the associate’s record of proceedings, records of jury communication, continuation sheets, the master result sheet and a partial trial transcript. The transcript does not continue past 17 October 2001, with the effect that the trial transcripts from 19 and 22 October are both unavailable. The transcript of the Crown case is complete, as is the evidence-in-chief of Mr Zraika, who gave evidence in his own defence. The cross-examination of Mr Zraika, however, commenced on 17 October and continued on 19 October. (It appears the court did not sit on 18 October.) As a result, the conclusion of the cross-examination of Mr Zraika is missing, as are the addresses and the summing up. The transcript of 17 October records an indication by Mr Zraika’s counsel that an Arabic interpreter was required on the next occasion, which suggests that at least one other witness may have been called. Whatever be the case, there is sufficient material available to understand Mr Zraika’s defence at his trial.

4. [17]

   Following service of the respondent’s material, the applicant provided submissions in reply filed 8 April 2025 and supplementary submissions in reply filed 6 May 2025.

5. [18]

   By letter to the Registrar dated 11 June 2025, the respondent sought leave to file further submissions in response to the applicant’s reply submissions. The application for leave and the attached submissions were referred to my chambers on 12 June 2025. At the time the application was received, a draft of these reasons had been completed and was in the process of being finalised. Having regard to the view I had formed with respect to the application, I considered that there was no prejudice to the respondent in refusing leave.

6. [19]

   By letter to the Registrar dated 12 June 2025, the applicant sought leave to file further submissions in response to the respondent’s submissions. Given my decision to refuse the respondent’s request for leave, leave was also refused to the applicant.

7. [20]

   On 16 June 2025, the Court notified the parties by email that the respondent’s application for leave to file the further submissions was refused. The Court subsequently did the same with respect to the applicant’s application for leave. I have not had regard to the submissions in respect of which leave has been refused. I would only add that it is preferable when leave is sought in circumstances such as those here, that the submissions not be attached so that there can be no suggestion that such submissions have been taken into account.

8. [21]

   This decision has been made on the papers. In making my decision, I have considered all of the materials (properly) before me as set out above.

The relief sought

1. [22]

   The applicant seeks that his conviction be quashed. The relief available to the applicant, on his application under s 78 of the CAR Act, is limited to that set out in s 79 of that act. That is, it is limited to a direction that an inquiry be conducted by a judicial officer or a referral of the case to the CCA to be dealt with as an appeal. The present application is based on the acquittal of Mr Zraika, and as the matter developed, the evidence heard in the trials of the applicant and Mr Zraika, together with legal arguments based on the implication of the different outcome in Mr Zraika’s trial. It is not suggested that there is any utility in an inquiry. The application will be treated as an application that the matter be referred to the CCA to be dealt with as an appeal. This is consistent with the applicant’s submissions. I note that, in either event, the threshold test is the same: the applicant must establish there is “a doubt or question” as to his guilt.

The Circumstances of the Case

1. [23]

   Bell J, in sentencing the applicant, made findings of fact with respect to the offences. The following is taken from those findings.

2. [24]

   In the early hours of 30 May 1998, the applicant and a group of friends, including Nedhal Hammoud and Kader Chakaik, attended the Mr Goodbar nightclub in Oxford Street. At that time, Kris Toumazis, the deceased, also attended the Mr Goodbar nightclub with a group of friends, including Nick Lambos and Arthur Kazas. An incident occurred between Mr Kazas and Nedhal Hammoud at around 3:00am which led to a verbal confrontation between them on the footpath outside the nightclub. Mr Kazas, together with his companions, entered his vehicle, which was parked immediately outside the nightclub. Mr Chakaik then kicked the rear wheel arch of that vehicle. Upon exiting and observing the damage to the vehicle, Mr Kazas, Mr Lambos and the deceased gave chase to Mr Chakaik and Nedhal Hammoud, who ran across Oxford Street.

3. [25]

   On observing his companions being chased, the applicant produced a handgun and commenced firing into Oxford Street in the general direction of those giving chase. A bullet hit Mr Lambos near the right sternal notch. This was the subject of count 2 in the indictment. A bullet hit Mr Kazas as he ran towards the applicant. This was the subject of count 3 in the indictment. A bullet hit the deceased and he fell on the ground near where the applicant was standing. The deceased aimed the gun downwards towards the body of the deceased and fired a second bullet, which hit the deceased. This was the subject of count 1 in the indictment.

4. [26]

   After the applicant fired the second bullet towards the deceased, he began to run from the scene. Detective Senior Constable (DSC) Barwick observed this series of events from inside a police vehicle. He called out “stop police” to the applicant and his two companions. The applicant pointed his handgun towards DSC Barwick for a fraction of a second. DSC Barwick fired a round from his service revolver and all three men ran away. The applicant pointing the gun towards DSC Barwick was the subject of count 4 in the indictment.

5. [27]

   In the aftermath of the commission of the above offences, the applicant and Mr Chakaik travelled to Paramatta and met with Nedhal Hammoud. The following day, the applicant and Nedhal Hammoud met with Nedhal’s brother, Khaled Hammoud. The applicant and Nedhal Hammoud travelled to Lebanon the next day with Khaled Hammoud’s assistance. In Lebanon, there was a falling out between the applicant and Nedhal Hammoud. During this time, the police investigation into the murder of the deceased had identified the applicant, Nedhal Hammoud, Mr Chakaik and Mohammed Ajaj as suspects. Against this background, Khaled Hammoud offered assistance to the police in an endeavour to help Nedhal Hammoud. Khaled Hammoud was, on his account, able to provide valuable evidence to the police including of an alleged admission made by the applicant. He also encouraged Nedhal Hammoud to surrender to the authorities and provide a (self-serving) account of the incident, which he ultimately did. Eventually, the applicant was arrested and returned to Australia, where he was remanded in custody. While in custody, the applicant, on the Crown case, conspired with Mr Zraika to engage a contract killer to murder Khaled Hammoud to prevent him from giving evidence against him. This was the subject of count 5 in the indictment.

6. [28]

   The facts of count 5 were found by Bell J to be as follows:

7. [29]

   The CCA in R v Hamzy summarised the evidence against the applicant in relation to the conspiracy to murder charge as follows:

8. [30]

   The evidence in the case brought by the Crown against the applicant and Mr Zraika was relevantly similar. However, Mr Zraika and the applicant both gave evidence in their respective trials. The responses of each to the Crown case in their evidence contained differences. Those differences are of significance to this application.

9. [31]

   The applicant’s response to the Crown case was that he intended to rob Khaled Hammoud, not to kill him. His motivation for doing so was to use the money obtained, which he had a basis to expect would be substantial, for legal costs. He told the court that he instructed Mr Zraika to show the undercover operative Jack various locations for the purposes of the robbery, including Khaled Hammoud’s home and his place of work. In his evidence-in-chief the applicant said that Mr Zraika “doesn’t ask questions” and he “doesn’t need to know” why he had been given those instructions. This was consistent with a recording of a conversation between the applicant and Jack on 18 August 2000 which was in the following terms:

10. [32]

    Later in the recording, the applicant said of Mr Zraika: “He’s not going to ask. He’s not going to want to know. He does what he’s told by me if I say jump. He says how high. That’s it.”

11. [33]

    The applicant said that the “only part” Mr Zraika was to play was to show Jack the locations set out above, although at one point in his evidence-in-chief, the applicant did say that he intended to convey to Mr Zraika that Jack was not to be paid unless the robbery was successful.

12. [34]

    When cross-examined, the applicant initially maintained that Mr Zraika’s role was limited such that he was not made aware of the (on the applicant’s evidence) plan to rob. However, as the applicant’s cross-examination developed, he gave evidence that while he did not initially do so, he did ultimately tell Mr Zraika of the plan to rob Khaled Hammoud. He said this occurred after Mr Zraika’s first visit to him (on 23 August 2000) but before Mr Zraika’s second visit to him (on 30 August 2000). He told the court:

13. [35]

    From this point onwards, the applicant accepted that Mr Zraika had knowledge of his plan to rob Khaled Hammoud. Counsel for the applicant summarised the applicant’s case in his address as:

14. [36]

    It is not without significance that senior counsel for the applicant at trial did not attempt to refute the presence of an agreement between the applicant and Mr Zraika. The applicant’s approach to the trial was reflected in the summing up, in which Bell J described the applicant’s case as that the applicant “agrees that there was, if you like, a conspiracy to commit an unlawful act, but he says it was a conspiracy to rob Khaled Hammoud”.

15. [37]

    The applicant also gave evidence of his relationship with Mr Zraika. He said that he had known Mr Zraika for “a long time” and that he had “complete trust” in Mr Zraika. In cross-examination, the applicant resiled from this somewhat, stating that he used to “see” Mr Zraika when they were “kids”, but that they had not “been the best of friends” since that time.

16. [38]

    As noted above, Mr Zraika gave evidence in his trial. Mr Zraika’s evidence was that he had initially been unaware of any intention on the part of the applicant to arrange the murder of Khaled Hammoud, but that over time he became suspicious. Mr Zraika told the court that the applicant had reassured him on several occasions that no harm would come to Khaled Hammoud, but that he realised this was untrue when Jack told him that the applicant had asked for Khaled Hammoud’s finger. Mr Zraika said he realised Jack was a hit man after Jack requested he obtain a gun, and that it became clear that the applicant intended to have Khaled Hammoud killed. He said he “played along” in order to ensure no harm ensued, to frustrate the applicant’s plan, and to learn as much as he could about that plan. Mr Zraika said that he tried to tell the applicant that he knew that Jack was a hitman. He said the applicant continued to deny this but eventually told him that Jack “was just gonna go in there and you rob him”. He gave the following evidence in relation to a conversation he had with the applicant on 30 August:

17. [39]

    Mr Zraika also gave evidence of his relationship with the applicant. That evidence was somewhat different to the applicant’s on the same subject. Mr Zraika said that he had first heard the applicant’s name through “friends who used to hang out with him” in about 1998. He said that he had visited the applicant in jail in February 2000 because a group of his friends had invited him along. Mr Zraika said that prior to that visit, the applicant was someone who “said hello to me as he knew of me as I knew of him from the area” and that “[i]t was just hi and bye”.

The application

1. [40]

   The applicant submits that there is a doubt or question as to his guilt. He contends, in this regard, that the jury’s verdict in relation to count 5 is unsustainable as a matter of law. The applicant argues that as Mr Zraika was found not guilty (by his jury), the applicant’s own conviction for the same offence “raises the question of conflicting judicial decisions”. In this context, the applicant raises the principle of incontrovertibility with respect to judicial decisions and verdicts of acquittal. Deane and Gaudron JJ described the principle of incontrovertibility in Rogers v The Queen (1994) 181 CLR 251 at 273; [1994] HCA 42 as based on:

2. [41]

   See also Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [53] per Gummow J, referred to by the applicant.

3. [42]

   The “agreement” which formed the basis of the conspiracy to murder charge was, ostensibly, between the applicant, the undercover operative, Jack, and Mr Zraika. There was, however, no genuine agreement with Jack. He was an undercover operative and, as such, at no point intended to carry out the planned killing. The applicant correctly points out that Jack was not a party to any conspiracy: see, for example, The Queen v LK; The Queen v RK (2010) 241 CLR 177; [2010] HCA 17 at [1]. The respondent takes no issue with this. The only possible parties to any conspiracy were, therefore, the applicant and Mr Zraika. The applicant contends that if, as a result of his acquittal, Mr Zraika cannot be regarded as a party to the conspiracy, then, in turn, his own conviction cannot stand. The applicant is correct to submit that no matter his own intention, if Mr Zraika did not enter into the relevant agreement with him, that is an agreement to murder, then he was not party to a conspiratorial agreement with Mr Zraika and his conviction cannot stand.

4. [43]

   It is convenient to first consider the principle of incontrovertibility on which the applicant relies.

5. [44]

   Prior to The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32, the position at common law was that where two persons were jointly presented for trial on a single count of conspiracy between themselves and no other, the acquittal of one necessitated the acquittal of the other. In The Queen v Darby, however, Gibbs CJ, Aickin, Wilson and Brennan JJ (at 678) rejected this understanding of the law and observed that the common law of Australia should be redirected to its “true course”. In so reasoning, their Honours said (at 676-7):

6. [45]

   Their Honours concluded (at 678):

7. [46]

   Thus, on the basis of the above, while one person’s acquittal for a particular crime cannot be controverted in other proceedings against them, that acquittal does not necessarily extend to proceedings against their co-conspirator for that same crime. That is because, at least in part, a verdict of acquittal, in contrast to a conviction, requires no positive findings of fact: R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323 at [253] (per Hulme J), referring to The Queen v Storey (1978) 140 CLR 364 at 370-1; [1978] HCA 39 (per Barwick CJ). See also Director of Public Prosecutions v Shannon [1975] AC 717 at 772 (per Salmon LJ), extracted above in The Queen v Darby.

8. [47]

   McHugh J in Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 (at [63]), after referring to The Queen v Darby, considered that the position adopted in that case was “plainly correct” because, to provide one example, “evidence which is admissible against one accused - for example, a confession - may not be admissible against the other accused”.

9. [48]

   Based on the above, the applicant’s primary contention must be rejected. That is, that the principle of incontrovertibility operates as a complete answer to the applicant’s guilt with respect to the same conspiracy for which Mr Zraika was acquitted.

10. [49]

    The question on the application is thus whether the applicant’s conviction is inconsistent with the acquittal of Mr Zraika, having regard to all the circumstances of the case, including the evidence led at the respective trials. The applicant addressed this issue in his reply submissions, in which he contended that on consideration of all the material across the two trials, a doubt or question arises as to his guilt.

11. [50]

    Determining this issue involves “an analysis of the evidence as against alleged co-conspirators to determine whether the different verdicts are explicable by different evidence” such that the evidence is “capable of sustaining a conviction against one in the light of the other’s acquittal”: Mickelberg v The Queen (1989) 167 CLR 259 at 310; [1989] HCA 35 (per Toohey and Gaudron JJ). The approach to be taken to the evidence is a “practical, commonsense approach, without too much emphasis on what can be regarded at best as mere possibilities as to what the jury may have thought and how it arrived at the verdicts which it did”: R v Jones (1985) 20 A Crim R 142 at 150 (per Lee J). See also Mickelberg v The Queen at 310 (per Toohey and Gaudron JJ); R v Mok (1987) 27 A Crim R 438 at 442 (per Hunt J, McInerney and Allen JJ agreeing).

12. [51]

    As observed above, while the acquittal of Mr Zraika is not technically inconsistent with the guilt of the applicant, it may nonetheless give rise to a doubt or question as to his guilt. An example of such a case is found in Jones, where two alleged conspirators were tried together and the Crown case against each of them was “substantially the same”. Street CJ (with whom Lee and Maxwell JJ agreed) regarded the verdicts as inconsistent such that the conviction should be quashed. See also R v Hurrey (1987) 29 A Crim R 42; cf Mok, Dickson v R [2016] NSWCCA 105 at [60]-[64].

13. [52]

    The applicant, in broadening his argument to embrace what might be described as factual inconsistency, submits that the evidence as against him and as against Mr Zraika was “identical”, with the result that Mr Zraika’s acquittal was such as to give rise to a doubt as to his guilt.

14. [53]

    The applicant’s submission that the evidence was identical requires scrutiny. While the Crown case may have been, in each trial, relevantly similar, each of the applicant and Mr Zraika gave evidence at their respective trials, as set out above. Given that Mr Zraika’s acquittal alone is not enough to establish a doubt as to the applicant’s guilt, and that there was a difference in the evidence at the two trials, a preliminary question arises with respect to the evidence on which the applicant would rely to establish a doubt as to Mr Zraika’s guilt, and therefore his own, were the matter referred to the CCA.

15. [54]

    The evidence on which the applicant would rely in the event that the matter was referred to the CCA would seem to be the evidence led at Mr Zraika’s trial, that evidence being sufficient to at least raise a doubt as to Mr Zraika’s entry into the conspiracy to murder in the mind of Mr Zraika’s jury.

16. [55]

    If this application was to be referred to the CCA to be dealt with as an appeal, it is not self-evident that the evidence from Mr Zraika’s trial would be admissible on that appeal. Even if the applicant were able to overcome the hurdles with respect to the admission of fresh or new evidence on appeal, any such evidence would, nonetheless, need to be admissible. The evidence from Mr Zraika’s trial is, of course, hearsay. There is nothing to suggest that the same evidence would necessarily be available to the applicant on any appeal.

17. [56]

    It may be that there is no objection to the evidence. Alternatively, if there is a doubt on the material before me, the matter could be referred for an inquiry. At any such inquiry, the rules of evidence would not apply. It would then be at least possible that, following the inquiry, the report resulting from the inquiry would become “evidence” for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW): see Folbigg v R [2023] NSWCCA 325 at [12]-[13], although the admission of the report may still require the absence of objection.

18. [57]

    The answer is likely to be that the principles in relation to the undesirability of conflicting decisions would require the CCA to consider the record of both trials. I am content to proceed on this basis.

19. [58]

    The applicant, in the context of his broader attack on his conviction, based not only on the outcome of Mr Zraika’s trial, but also the evidence led at that trial, contends that:

20. [59]

    The applicant identifies the evidence given by Mr Zraika at his trial as fresh evidence which raises a doubt or question as to his, the applicant’s, guilt. I will not here make any distinction between “fresh” and “new” evidence.

21. [60]

    The applicant submits that he did not have the benefit of Mr Zraika’s evidence at his trial, and that he could only testify as to matters that were within his knowledge. He contends that Mr Zraika’s evidence was consistent with his evidence that he did not tell Mr Zraika of any plan to kill Khaled Hammoud, and, additionally, that Mr Zraika’s evidence went further to “explain his mindset, actions and comments which I could not explain”.”

22. [61]

    The applicant also identifies as fresh evidence the amendments to the transcripts of the listening device conversations, and the evidence given by Jack at Mr Zraika’s trial in relation to those transcripts. The applicant submits that at Mr Zraika’s trial, around ten months following his own, the Crown was still in the process of conceding amendments to the transcripts of the three listening device conversations with Jack. He says that the transcripts were amended on three occasions; before the applicant’s trial, before Mr Zraika’s trial, and again during Mr Zraika’s trial. The applicant also complains that at Mr Zraika’s trial, Mr Zraika’s counsel was provided with 23 pages of notes authored by Jack in relation to the listening device conversation which took place on 18 August. These notes were apparently not disclosed to the applicant at his trial.

23. [62]

    As part of this submission, the applicant draws attention to “significant change” in the evidence given by Jack as between the applicant’s and Mr Zraika’s trials with respect to particular words in a recording. The applicant points to a disagreement in his trial that arose out of a passage in the listening device transcript from 18 August. Jack gave evidence that the applicant said the words “the man is going to disappear you know”, while counsel for the applicant submitted that the words should read “and when the money is split”. However, the applicant highlights the following passage from Mr Zraika’s trial, being the cross-examination of Jack by Mr Zraika’s counsel in relation to the transcript (which had since been amended, with those amendments underlined):

24. [63]

    The applicant submits that this “raises doubt on all the evidence” given by Jack at the applicant’s trial, and raises further questions in relation to the transcripts which were used as evidence at his trial.

25. [64]

    As noted above, the complete record of the two trials is not available. That is, clearly, not an entirely satisfactory basis on which to engage in fine analysis. Moreover, it is likely a result of the significant delay in bringing this application. Again, this issue may be put to one side for present purposes, noting that the evidence from the applicant’s trial is essentially complete and the evidence of Mr Zraika in his trial is almost entirely available.

26. [65]

    It is plain from the verdicts at the respective trials that the applicant’s jury rejected his evidence, but that Mr Zraika’s jury ultimately had at least a reasonable doubt as to his guilt.

27. [66]

    It is convenient to deal first with the most significant difference in the evidence between the two trials. As has been set out above, each of the applicant and Mr Zraika gave evidence in their respective trials. It can be accepted that Mr Zraika’s evidence was that the applicant never told him that he (the applicant) planned to murder Khaled Hammoud. Further, Mr Zraika’s evidence was that when he became suspicious and pressed the applicant as to what was really going on, he was told it was intended to rob Khaled Hammoud. In that regard, it must be accepted that there was a degree of consistency in the accounts, and with respect to key matters. It does not, however, necessarily follow that the addition of Mr Zraika’s evidence to the applicant’s trial results in a doubt as to the applicant’s guilt. Each of the trials was different, with not only the absence of Mr Zraika’s evidence from the applicant’s trial, but also the presence of the applicant’s evidence (which was, in turn, absent from Mr Zraika’s trial).

28. [67]

    As a result of that combination of present and absent evidence, it cannot be assumed that Mr Zraika’s evidence would have the same effect in the context of the applicant’s trial. The evidence the applicant gave in his trial had the capacity to affect the inferences that might have been drawn as to Mr Zraika’s state of mind. Relatedly, Mr Zraika’s evidence may not have been accepted (or, at least, raised a doubt as to his guilt) when considered in the context of the applicant’s evidence.

29. [68]

    While the Crown cases against the applicant and Mr Zraika were essentially the same, and the Crown is obliged to prove its case, that is not to say that the evidence led by an accused cannot be taken into account in support of the Crown case. For example, a Crown case may be based on weak identification evidence. Any issue as to identification will, however, be resolved if the accused gives evidence admitting their presence at the scene in accordance with the identification evidence, but contesting liability on some other basis. A conviction which might have been unreasonable in the absence of the accused’s evidence may thus cease to be so when the accused’s evidence is taken into account.

30. [69]

    An analogy may be drawn between the above example and the present case. As discussed above, while the applicant gave evidence that he initially told Mr Zraika only what he needed to know, he later told the court under cross-examination that he ultimately availed Mr Zraika of his plans, and, in particular, that he planned to rob Khaled Hammoud, not to kill him. The applicant’s counsel summarised the applicant’s case as him having entered a conspiracy to rob rather than to kill. The applicant’s case was put in similar terms by the trial judge in her summing up to the jury.

31. [70]

    The applicant’s submission that his evidence at trial was that he did not tell Mr Zraika of his plans cannot be accepted in full. As I have said, he gave evidence that he told Mr Zraika of a plan to rob Khaled Hammoud. While the applicant is correct in his contention that him telling Mr Zraika of his plan to rob Khaled Hammoud did not, of itself, make Mr Zraika a party to any conspiracy, it is necessary to have regard to the other evidence available at the applicant’s trial. Mr Zraika was not only made aware of the (purported) plan, he was engaged to facilitate it. This involved participation in the purported plan, and provides an ample basis on which to infer a conspiratorial agreement, assuming there was in fact a meeting of minds between the applicant and Mr Zraika with respect to at least a robbery. As noted above, the address of the applicant’s counsel and the summing up of the trial judge both proceed on the basis that there was such a meeting of minds.

32. [71]

    The jury in the applicant’s trial had the benefit of seeing the applicant cross-examined. This was significant, particularly with respect to the applicant’s explanations of his conversations with Jack to which Mr Zraika was not a party. Clearly, the jury rejected those explanations. That is, the jury accepted that, in speaking with Jack, the applicant was engaging him to murder Khaled Hammoud. Once the jury accepted that as a fact, the applicant’s own evidence that he ultimately let Mr Zraika in on his plans inevitably led to the conclusion that the applicant told Mr Zraika of his intention to kill. This no doubt led to the applicant’s conviction at his trial.

33. [72]

    Put another way, it cannot be assumed that Mr Zraika’s evidence would have the same impact if considered in the context of the applicant’s evidence. Each of the applicant and Mr Zraika gave evidence as to their relationship with the other. In the course of his evidence, the applicant said that he had known Mr Zraika for “a long time” and, significantly, said that he had “complete trust” in Mr Zraika. This was consistent with the applicant’s evidence that he had brought Mr Zraika into a criminal conspiracy, albeit to rob not to kill.

34. [73]

    By contrast, Mr Zraika sought to distance himself from the applicant. He described the applicant as someone to whom he would say hello as they knew each other from their local area. He explained his visit to the applicant in jail as, in essence, tagging along at the invitation of a group of friends who were going to visit the applicant.

35. [74]

    Mr Zraika’s account of his relationship with the applicant was inconsistent with the applicant’s evidence that he trusted Mr Zraika, and given this, cannot be unquestioningly accepted. The applicant’s version of their relationship is, on the unchallenged evidence in his trial, far more likely to be the accurate version. It is therefore at least open to proceed on the basis that, as admitted by the applicant, there was a relationship of trust between himself and Mr Zraika. On the applicant’s evidence, that trust manifested in a criminal conspiracy between them, with the only substantive question remaining being whether the agreement was to murder Khaled Hammoud, or simply to rob him. That was the issue which was determined adversely to the applicant at his trial.

36. [75]

    Further, Mr Zraika’s evidence at his trial was, as discussed above, that he had a suspicion the applicant intended to cause harm to Khaled Hammoud, which later firmed into a belief, followed by a realisation that he in fact intended to kill him. Mr Zraika gave evidence that, on realising that the applicant had lied to him about his plans, he simply “played along” in order to gain further information about what was to occur and to frustrate any plans to harm Khaled Hammoud. In other words, he was not a party to any conspiracy. If this is accepted as possibly true, it raises a doubt as to the applicant’s guilt.

37. [76]

    Critical to Mr Zraika’s evidence that there was no agreement between himself and the applicant was his evidence with respect to the nature of the relationship between them. That evidence, was, to a significant extent, the foundation on which his case was built. The (on the Crown case false) admission by the applicant to Mr Zraika that it was intended to rob Khaled Hammoud, when placed under pressure by Mr Zraika, is more believable in the context of a relationship which was not particularly close. This is also the case with respect to Mr Zraika’s evidence that he simply played along. By contrast, in the context of the applicant’s account of the relationship, that being one of absolute trust, the possibility that Mr Zraika was simply playing along is much diminished. On the applicant’s case, having brought Mr Zraika into his plans, once it was established that the applicant’s plan was to murder (a matter which is not presently in dispute), it followed that the applicant brought Mr Zraika into a plan to murder.

38. [77]

    To place the above in perspective, to prove the agreement between the applicant and Mr Zraika, the Crown relied heavily on a call between them on 30 August. That call, while referring to a robbery, must be seen in the context of the evidence of the applicant’s dealings with Jack, which the applicant does not now dispute, engaging him to kill Khaled Hammoud. The recording suggests a closeness and level of trust between the two men. That reading of the call is supported, in the case against the applicant, by his own evidence. The inference that the subject of the discussion was a plan to kill (that is, that it accurately reflected the applicant’s plans with Jack), is thus more easily drawn against the applicant in the context of the evidence in his case, than as against Mr Zraika in his case.

39. [78]

    Having regard to the above, I am of the view that the conviction of the applicant can be reconciled with the acquittal of Mr Zraika. The evidence available to the respective juries was different in material respects such that no inconsistency has been established.

40. [79]

    In addition to the absence of Mr Zraika’s evidence, the applicant also points to changes in the Crown case in the form of the agreed content of some of the listening device recordings, and in the evidence of Jack, together with matters which were not disclosed to him.

41. [80]

    Among the matters not disclosed to the applicant was that Pham was a police informant. The failure of the prosecution to make proper disclosure is a serious breach. In the context of this application, however, it is not clear how knowledge of this fact would have assisted the applicant.

42. [81]

    There were a number of changes in the evidence of Jack as to the content of the recordings. It is not enough to simply point to the fact that changes were made to give rise to a doubt or question as to guilt. The applicant points to a passage in the recording of 18 August 2000 of the meeting at Silverwater gaol between the applicant, Jack and Phong. At the applicant’s trial, Jack testified that the applicant said the words “He been robbed and that the man is going to disappear you know”. There was a dispute as to the underlined words which the applicant contended were “and when the money is split”. The dispute appears to have arisen in the context of a CD being produced, although the summing up records her Honour telling the jury the parties were agreed that the difference in quality was marginal. With respect to the particular dispute, clearly the latter version is less inculpatory for the applicant’s case at his trial. In the present context, however, the applicant’s complaint is not as to what he engaged Jack to do, but rather the absence of agreement with Mr Zraika. The complaint as to these words, spoken in the absence of Mr Zraika, has no bearing on the doubt the applicant now seeks to establish. Other complaints as to the evidence of the recording of the meeting of 18 August, including the non-disclosure of notes by Jack, fall away on the same basis. That is particularly so in the context of the absence of the notes being used by the applicant’s counsel for forensic advantage in the cross-examination of Jack.

43. [82]

    Ultimately, there was abundant evidence at the applicant’s trial to support his guilt. The verdict of the jury and the subsequent dismissal of the applicant’s appeal by the CCA are consistent with this conclusion. I am not of the view that any “question or doubt” arises as to the applicant’s conviction, either based on the evidence in the applicant’s trial or based on that evidence in conjunction with the evidence in Mr Zraika’s trial and the fact of his acquittal.

Discretionary considerations

1. [83]

   The court is invested with a discretion to refuse to consider or otherwise deal with an application: s 79(3) CAR Act. While a number of bases on which the court might refuse to consider an application are set out in s 79(3), those bases guide, but do not otherwise demarcate the limits of the discretion. While the present case is not suggested by the respondent to fit within any of the specific circumstances set out in s 79(3) of the CAR Act, there are powerful reasons why the application might, nonetheless, be dealt with pursuant to s 79(3).

2. [84]

   The applicant, following his conviction, brought an appeal to the CCA. That appeal was heard in 2004. Mr Zraika had, by that time, been acquitted. It was therefore open to the applicant to raise the arguments the subject of this application before the CCA. However, he did not do so. A complete record of Mr Zraika’s trial was more likely to have been available at that time. The failure to raise this issue in the CCA appeal and the very significant delay since that time are powerful factors in favour of the court declining to deal with the application.

3. [85]

   Also, at least potentially relevant to the discretion, is the nature of the argument itself. The applicant’s argument proceeds on the basis that there is necessarily a doubt with respect to the existence of the requisite agreement between him and Mr Zraika, which, for the reasons above, I do not accept. But even if there was such a doubt, the applicant accepts that the result is that he, absent any relevant agreement, sought to have Jack murder Khaled Hammoud. In accepting this, the applicant is explicit in accepting that this would amount to an offence of solicit to murder pursuant to s 26 of the Crimes Act. This raises a serious question as to whether, if the applicant were to be acquitted of the conspiracy offence, he could be prosecuted for an offence of solicit to murder.

4. [86]

   Any such prosecution would arise out of substantially the same facts. In these circumstances, it may be open to the applicant to argue that the further prosecution, on those same facts, is an abuse of process: The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55. In The Queen v Carroll, the respondent to the Crown’s appeal had been acquitted at trial after giving evidence in his own defence, of murder. He later confessed to the murder. He was charged with perjury with respect to the evidence given at his first trial based on the confession. Proof of the perjury was dependant on proof that he was guilty of murder. Thus, the prosecution for perjury raised the same ultimate issue as had been raised in the first trial and sought to controvert the result. In the present case, unlike the facts in The Queen v Carroll, any conviction in relation to soliciting to murder would not be inconsistent with the applicant’s acquittal on the offence of conspiracy to murder. The Queen v Carroll is, as a result, distinguishable.

5. [87]

   I note that Part 8 of the CAR Act contains provisions modifying the common law to allow for the re-trial of persons in factual circumstances similar to those that pertained in The Queen v Carroll. There is nothing in those provisions, however, that would cover the present case.

6. [88]

   If a prosecution for solicit to murder were not barred, it would be conducted many years after the event. It is not known whether, as a result of the passage of time, such a prosecution would be viable. There would potentially be a serious unfairness to the Crown in ordering an acquittal as a result of the passage of time since the relevant events occurred.

7. [89]

   The potential difficulties for the Crown in prosecuting an offence of solicit to murder raises an obvious concern with respect to the desirability that serious crime be prosecuted and, if established, punished. I have not, however, had the benefit of submissions on the question of whether any such prosecution would be an abuse of process, bearing in mind that that prosecution would be based on precisely the same facts. In these circumstances, I would not take this matter into account in considering the court’s discretion.

8. [90]

   Ultimately, while there is a powerful case to be made against dealing with the application, given the view I have formed as to its substantive merits, it is unnecessary to reach a concluded view with respect to this question.

Orders

1. [91]

   I make the following orders:

   1. (1)

      The application that the whole of the applicant’s case be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) is refused.