Hamzy v R

HOEBEN CJ at CL:

The applicant also seeks leave to appeal against sentence.

The applicant was tried before his Honour R A Hulme J and a jury in the Supreme Court. The trial commenced on 21 June 2016. Verdicts were taken on 8 July 2016.

The indictment against the applicant alleged that:

The applicant pleaded not guilty to all counts on the indictment. In respect of Count 1, he denied being involved in that crime. The jury returned a verdict of not guilty.

Counts 2 – 4 involved an allegation that the applicant shot into a car on 14 October 2012. Seated in the car were Mr Yehya Amood who died and Mr C who was wounded. The applicant admitted that he had fired shots into the car but said that he was acting in self-defence. In relation to Count 2, the jury returned a verdict of not guilty of murder but guilty of manslaughter.

The jury returned a verdict of not guilty to Count 3, but guilty to the alternative Count 4. The Crown had conceded that there should be a verdict of not guilty in respect of Count 3 because it required the essential element that the applicant intended to kill Mr C. The Crown had put quite squarely to the applicant in cross-examination that he had only intended to inflict grievous bodily harm. It was on this basis that the jury acquitted the applicant of Count 3 but found him guilty of Count 4.

At trial various orders, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) were made, including orders in relation to the identities of various witnesses. The sentence judgment of R v Hamzy (No 2) [2016] NSWSC 1514 was also the subject of a suppression order. Those orders have been continued in this appeal.

The applicant relies upon a single ground of appeal in relation to his convictions:

The Crown case involved two shooting incidents. The asserted link between the two shootings was that they involved the same alleged motive. There was evidence that the various persons involved were all members of a criminal association, Brothers for Life.

The Crown called a witness, Mr O, who gave evidence of the alleged motive. Mr O said that in the weeks before the shootings in October 2012, he was at the applicant’s house and overheard a conversation between the applicant and Mr C’s wife, Ms Adel. In that conversation Ms Adel told the applicant that Alex Ali and Mr C had said that the applicant’s wife was “a gold-digger” and “a slut” and that Mr C wanted to “get” the applicant. The Crown alleged that the applicant then shot Ali and Mr C in retribution for saying these things about his wife.

Ali was shot in the evening of 8 October 2012 near a park in George Street, Yagoona. He was there with a friend, Mr Mahmoud Sanoussi. They were smoking cigarettes when an unidentified male walked across the park in a hooded jumper and shot Ali three times in the leg. Neighbours heard the shots and attended the scene. Various triple 0 calls were made, including from Mr Sanoussi. Ali was taken to hospital by ambulance and received treatment for the bullet wounds.

Mr O gave evidence that the day after the shooting, he saw the applicant at the gym and the applicant confessed to him that he had shot Ali. This confession and the alleged motive constituted the primary evidence linking the applicant to the shooting. When he was called to give evidence, Ali (contrary to the evidence of Mr O) denied ever having been involved in a conversation where the applicant’s wife was called “a slut” or “a gold-digger”.

The second shooting incident occurred on the afternoon of 14 October 2012. Mr O gave evidence that the applicant had been looking for Mr C in the lead up to 14 October 2012. Mr O claimed to have gone out with the applicant looking for Mr C on one occasion. The Crown case was that after looking for him for some time, the applicant eventually had telephone contact with Mr C on the morning of 14 October 2012. It was arranged to meet at the applicant’s mother’s house in Greenacre Road, Greenacre.

This arrangement was made by an exchange of texts as follows:

It was accepted that the applicant had conveyed in those texts to Mr C that he was at his mother’s place and that Mr C, who had told the applicant that he was with Yehya Amood, said that he would be there in five minutes. The applicant’s mother lived in a complex of townhouses, the entrance to which was on Greenacre Road, Greenacre. Vehicular access to the townhouses was down a driveway from the road.

Mr C drove to the location in his Mercedes sedan, which had the distinctive registration plates “BFL”. A friend of both Mr C and the applicant, Yehya Amood, was in the front passenger seat of Mr C’s car. It was common ground at trial that the applicant held no ill feelings towards Mr Amood and had no intention to shoot him.

The applicant was at his own home in Yagoona with a number of Brothers for Life associates. He asked one of them, Mr G, to “take me to my mum’s”. Mr G drove the applicant to Greenacre Road in a white Lexus four wheel drive and they arrived at 1.15pm. It was not suggested by the Crown that Mr G had any awareness of an intention on the part of the applicant to shoot Mr C. The white Lexus approached Mr C’s car from the rear and when it pulled up next to Mr C’s car, the applicant fired at least 11 shots from a pistol into the car. One of those shots struck Mr Amood in the area of his right armpit. Another two shots hit Mr C, one in the right thigh and one in the right ankle. While the shots were being fired Mr G drove from the scene.

Neighbours heard the shots and attended Mr C’s vehicle, rendering aid to both men. Ambulance and police were called. Ultimately, Mr Amood was pronounced dead at the scene, the one bullet that struck him having pierced his heart. Mr C was conveyed to hospital. By the time of trial Mr C had made an uneventful recovery.

Mr O gave evidence that after the shooting the applicant had confessed to him his involvement with the shooting of Mr C. He said that the applicant told him that he had shot him out of fear because Mr C had a pistol.

The Crown case was that both shootings were premeditated by the applicant. In relation to the 14 October incident, the Crown case was that neither Mr C nor Mr Amood were armed with any weapons.

The applicant gave evidence at trial. He denied having a pre-existing motive to hurt Mr C or Mr Amood. He denied wanting retribution because they had insulted his wife. In relation to the 8 October 2012 shooting, the applicant denied that he had been involved. He denied having made any confession to Mr O the following day.

In relation to Mr C, the applicant denied that in the days before 14 October 2012 he had been seeking to get in contact with him. He gave evidence that Mr C was the one seeking to get in contact with him. The applicant said that he had been having an affair with Mr C’s wife, Ms Adel. In the days leading up to 14 October when Mr C was trying to get in contact with him, he (the applicant) was concerned that Mr C was seeking to confront him about this affair.

The applicant gave evidence that on the morning of 14 October 2012 Mr C repeatedly contacted him by telephone and sought a meeting. The applicant told Mr C, falsely, that he was at his mother’s house and agreed to meet him there.

The applicant, who did not have a driver’s licence, arranged for his friend, Mr G, to drop him at his mother’s house. Mr G drove him there in a white Lexus four wheel drive that belonged to another friend, Mr AD. Mr AD did not have a licence.

Before getting into the car, the applicant armed himself with a Glock 9mm pistol. He said the “clip” was in the pistol when he took it. He thought there were 15 or 16 cartridges in the clip. He put it in a pocket in the front of his jumper. He gave the following evidence of his reasons for doing so:

The applicant said that when he entered Greenacre Road he saw that Mr C’s car was not outside his mother’s house (which was some distance down a driveway that was accessible from the road) but on the road near the entrance to the driveway. Mr G drove so the Lexus pulled up alongside Mr C’s car and was pointing in the same direction as that car. The applicant said that he lowered a window of the Lexus and at that point he saw that Mr C had a pistol in his hand and it was moving towards him. The applicant then raised his pistol, “racked” it and fired a number of shots into the car. During this he briefly saw Mr Amood in the car. He did not intend to shoot Mr Amood. After the first shots were fired, Mr G drove off and the applicant continued to fire shots at Mr C’s car as they pulled away.

The applicant’s case was that he fired the shots in self-defence.

Mr C gave evidence in the Crown case. The evidence which he gave was inconsistent with a statement which he had made to the police on 3 October 2013 to the effect that he did not have a pistol at the time. He said in that statement:

The Crown was given leave pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr C on that issue and on a number of other issues, including whether the window of the Mercedes in which he was seated was open, closed or partially open.

Similar issues arose with Mr G. His evidence at trial was that he saw that Mr C had a metal object in his hand. He made a statement on 23 July 2014 in which he gave an account which in significant respects was inconsistent with the applicant’s account. The version given by Mr G to police on that occasion was to the effect that the applicant was preparing to shoot well before the car came alongside Mr C’s Mercedes. Although he was called to give evidence in the Crown case, leave was granted for him to be cross-examined by the Crown.

It was accepted by the applicant that there were at trial significant credit issues relating to the evidence which he gave and which was given by Mr C and Mr G. In that regard, I do not understand the applicant to argue against the following observation made by the trial judge in the course of his sentence judgment where he said:

While this Court is not in a position to make such an assessment, and while it is not known what conclusions the jury formed in relation to those witnesses, the evidence which they gave at trial needs to be read against a background of there being a significant challenge to their credit.

Mr C gave the following evidence:

In cross-examination by defence counsel, Mr C gave the following evidence:

Mr G gave evidence at trial. Mr G was asked by the applicant if he would take the applicant to his mother’s house and he agreed to do so. Mr AD who was present said “Take my car”. This was the white Lexus four wheel drive to which reference has already been made.

In answer to questions from the Crown, Mr G said that he did not see anything in Mr Hamzy’s hand until “we got right up to the car … I noticed he had a pistol, a gun” (T390.13). This was contrary to a statement which he made to police where he said that at a distance of about 100 metres from the applicant’s mother’s house he saw the applicant produce a pistol. When this was put to him he responded:

Mr G disagreed that the applicant told him to “pull up near [Mr C’s] car” as they approached the Mercedes and that he did not see a pistol in the applicant’s hand at that time. He said that with the passage of time his memory of these events had become better and that is why his evidence differed from what he had told the police in 2014 and the evidence he had given in the committal in 2015 (T396-399). The Crown was given leave to cross-examine him even though he was called in the Crown case.

At trial Mr G gave this evidence:

The applicant gave evidence at trial. Relevant parts of that evidence were:

Under cross-examination by the Crown the applicant gave the following relevant evidence:

Crime scene evidence was given by Senior Constable Keays. The evidence concerned the state of the driver’s side window on the Mercedes. The significance of that evidence will be set out in due course:

In order to understand the jury verdict and the applicant’s submissions, it is necessary to have regard to the relevant legislation. Sections 418, 419 and 421 of the Crimes Act 1900 provide as follows:

In accordance with those provisions, the applicant contended that the verdicts on Counts 2 and 4 are unreasonable and cannot be supported, having regard to the evidence because the Crown could not negative self-defence beyond a reasonable doubt. The applicant noted that in the present case, the effect of ss 418 and 419 was that he was not guilty of murder or manslaughter unless the Crown proved that either:

The applicant submitted that the first question is about the subjective personal view of the accused. It is not a question to be considered with the benefit of hindsight. The second question is to be determined from an objective “reasonable” standard but approached from the perspective of the accused in that the evaluation is based on the circumstances as he or she perceived them. The Crown did not challenge this analysis.

The applicant further noted that the jury’s verdict of manslaughter establishes that they were not satisfied that the Crown had excluded as a reasonable possibility that the applicant honestly believed his conduct was necessary to defend himself. The applicant submitted that the question on this appeal is whether it was reasonable for the jury to be satisfied beyond reasonable doubt that his conduct (i.e. his response to the threat he perceived) was not reasonable in the circumstances as he perceived them.

The applicant submitted that it was necessary to identify the relevant “conduct” of his which was said to constitute the offence. As part of the analysis of the evidence to identify that issue, the applicant noted the following facts which he submitted were uncontroversial:

The applicant submitted that while there was evidence that the shots were fired in quick succession, given the number of shots and the fact that the position from which they were fired appeared to change, it was important to consider which of the shots were causative shots, i.e. which were the shots that hit Mr Amood and Mr C and the applicant’s location when those shots were fired.

Taking into account that evidence, the applicant adopted the finding of the sentencing judge as to the relevant “conduct” in the sentencing judgment as follows:

Applying that reasoning, the applicant identified the question in the appeal as: whether the Crown had proved beyond reasonable doubt that the conduct constituting the actus reus of the offence (i.e. the firing of the these first three shots) was accompanied by a lack of justification (in the form of self-defence). That is, was the act of firing the shots constituting the relevant conduct, namely the single shot that killed Mr Amood and the two shots that wounded Mr C with respect to either count, an excessive response in the circumstances as the applicant perceived them.

The applicant submitted that the verdict of guilty to manslaughter reflected the jury’s finding that there was (at least) a reasonable possibility that he believed that it was necessary for him to fire the three shots into the car that caused the injuries and death. However, they were satisfied beyond reasonable doubt that such response was not reasonable in the circumstances as he perceived them.

In order to test that conclusion, the applicant analysed the evidence adduced at trial.

He submitted that by finding him not guilty of Count 1, the jury was not persuaded beyond reasonable doubt that he was involved in the shooting of Ali. It could therefore be inferred that the jury did not accept the evidence of Mr O on that matter. He submitted that in finding him not guilty of murder, it can be inferred that the jury similarly did not accept the purported motive and evidence of premeditation given by Mr O (i.e. that he intended to shoot Ali and Mr C because they had made derogatory comments about his wife).

The applicant adopted the comments of the sentencing judge concerning the reliability of the evidence of Mr O:

The applicant submitted that this implicit rejection of the evidence of Mr O by the jury significantly damaged the Crown case. It was the Crown case that he had arranged the meeting with Mr C to shoot him because of the motive given by Mr O, i.e. the applicant had been trying to meet up with Mr C for some time to shoot him and had, in effect, ambushed him for that purpose.

The applicant noted that an important part of the Crown case was that Mr C and Mr Amood were unarmed at the time of the incident. It was the Crown case that the applicant had chosen the location of the rendezvous and had shot Mr C and Amood before they had time to do anything. It was the applicant’s case that it was Mr C who had been chasing him in the lead up to the incident because of his suspicions about his involvement with his wife. The applicant relied upon his own evidence and that of Mr C and the telephone records in the days before the shooting, to establish this.

Against the background of these competing cases, the acquittals in respect of Count 1 and murder in respect of Count 2, meant that the jury rejected the Crown case that the applicant had ambushed the men in the Mercedes. The applicant accepted that a finding that he had gone there with an intention to shoot would have meant that he was guilty of murder.

The applicant submitted that while it was clearly ill advised and unlawful for him to have armed himself with the pistol when going to meet Mr C the jury verdicts confirmed that this conduct did not demonstrate that he intended to shoot Mr C before he arrived at the scene. The applicant submitted that similarly the use of a particular car and seeking a tactical advantage in his interaction with Mr C (even if established) did not prove an intention to shoot before he saw Mr C and his pistol.

The applicant submitted that the acquittals also demonstrated that his and Mr G’s evidence that he pulled out the pistol before reaching Mr C’s car while evincing a preparedness to shoot if necessary was not, as the Crown contended, evidence of a determination to shoot Mr C. The applicant submitted that his decision to pull up alongside Mr C’s car may have demonstrated a desire to gain an advantage over Mr C but this was in the context of the concern held by him and was not, having regard to the verdicts, evidence of a pre-existing intention to shoot. The applicant submitted that on the jury’s verdicts this was not, as the Crown contended, a “gun fight” but a case of self-defence.

The applicant submitted that as a matter of logic, the jury must have found that Mr C had a pistol. This was because on the evidence the only threat to the applicant was that of being shot by Mr C. Thus the applicant could not have been found to have had the requisite belief that his conduct was necessary in his own defence, in the absence of him being confronted by a pistol which he believed Mr C was about to use. (Or, more correctly, the jury was not satisfied that he did not have such a belief.)

Put another way, the applicant submitted that given the lethal force which the relevant “conduct” involved, to find him not guilty of murder the jury must have rejected the Crown’s contention that Mr C was not armed and instead have found that as a reasonable possibility, that he saw Mr C with a pistol in his hand.

The applicant submitted that it was only if he were confronted with a pistol that it was possible for the jury to have found that it was a reasonable possibility that he felt it was necessary to shoot into the car in which Mr C and Mr Amood were sitting. The applicant submitted that if he did not see a firearm in Mr C’s hand, his conduct could never have been necessary (and he would have failed on the first limb of self-defence).

The applicant submitted that the jury’s verdict could not be reconciled with the Crown’s contention that because no shots were fired by Mr C, this was evidence that he did not have a pistol. The applicant submitted that the fact that no shots were fired by Mr C said little about the positional readiness of the pistol which he had. The applicant submitted that because Mr C was shot twice when the first three rounds were fired before his car drove off, and because the incident was over in a matter of seconds, it is not surprising that Mr C was unable to fire any shots.

The applicant submitted that Mr C’s possession of a pistol was consistent with the evidence of the only witnesses to the event, i.e. Mr C, Mr G and the applicant. (The evidence of Mr C is at [34] hereof and that of Mr G at [39] hereof. The evidence of the applicant is at [40]-[41] hereof.) In addition, Mr C said that after the shooting he gave his pistol and phone to a man and told him to get rid of it (T356.6). There was evidence of a large number of people around the car speaking with Mr C before emergency services arrived, including a man who spoke to Mr C and then drove off. No phone was recovered from Mr C when he was taken to hospital. The applicant submitted that this latter consideration has to be taken into account with the fact that Mr C had been in telephone contact with him not long before the shooting. Finally, the applicant relied upon the evidence of Mr O (T64.26) where he recounted a conversation which he had with Mr G. Mr O’s evidence was that Mr G told him that at the time of the shooting he had seen Mr C holding something metal in his hand which was hanging out of the driver’s side window. The applicant also relied upon other evidence of Mr O (T65.37) where he said that following the shooting when Mr C was explaining to him what had happened, Mr C had said “I think he [the applicant] seen a gun in my hand”.

The applicant submitted that the evidence given by the applicant, Mr C and Mr G was broadly consistent and was all one way in relation to Mr C holding a pistol at the time of the shooting. The applicant accepted that the sentencing judge had expressed serious misgivings about the credibility of each of those witnesses. He submitted that while there might be reason to doubt the reliability of portions of the versions given by each of them, the jury must have found that the Crown had not excluded as a reasonable possibility that he was confronted with the threat of a pistol held by Mr C such that he believed it was necessary to discharge his own weapon in a way which killed Amood and injured Mr C. This was the only explanation for their acquittal on the murder count.

The applicant submitted that ultimately all of the evidence was consistent with a finding that he believed his conduct, i.e. firing the lethal shot, was necessary to defend himself (or at least that this was not excluded). He submitted that given his position in a car which could be driven away, such a belief can only have been that he was about to be shot, i.e. that the circumstances as he perceived them were that Mr C was armed with a pistol which he was about to use.

The applicant challenged the contention by the Crown that at the time of the shooting the side window of the Mercedes next to the driver was in the raised position. He noted that the Crown had relied upon the presence of broken glass in the car as rebutting the evidence of Mr C, Mr G and the applicant that Mr C was armed. The Crown had also relied upon it as reflecting adversely on the credibility of those witnesses. The Crown had submitted that it was also significant in assessing the immediacy of the threat facing the applicant, i.e. whether Mr C was ready to or could have fired shots at him. The applicant submitted that although the acquittals demonstrated that the jury rejected the Crown case theory that he had ambushed an unarmed man, it remained necessary to consider the glass evidence in the context of the proportionality of his response.

In order to rebut this evidence, the applicant relied upon the following analysis of the evidence:

The applicant noted that there was limited evidence as to the mechanism of the damage to the Mercedes side window and no forensic examination as to the position of the window when it was damaged. There was no evidence of any examination of the inside of the door to confirm whether the window was partially closed at the time it may have been broken.

The applicant submitted that the above evidence and that given by Senior Constable Keays at [42] hereof was the totality of the evidence about the glass that was found in the car. As a result, the applicant made the following submissions:

The applicant submitted that when regard was had to the whole of the evidence, there was no proper basis to conclude that the window of the Mercedes was fully closed and if partially open, the extent to which it was open. He submitted that the evidence did not establish that Mr C was incapable of quickly firing a shot in his direction, either through a closed window or an open window. He submitted that a conclusion that Mr C was not so capable and that this was part of the circumstances as perceived by him, would be inconsistent with a perception of an immediate threat and would thus be inconsistent with the acquittal for murder.

In relation to other possible courses of action, besides discharging his pistol, the applicant relied upon the following evidence which he gave under cross-examination (T575.3):

The applicant submitted that he was faced with a weapon capable of doing serious or lethal injury to him and to Mr G. It was held by a person whom he believed wanted to harm him and who had a reputation for violence. The applicant submitted that at the time he saw the pistol, he was in close range of it, was not the driver of the vehicle and could not cause the vehicle to exit the scene other than through verbal commands. Even if he could have caused Mr G to accelerate from the scene, he would have been exposed to Mr C and his pistol for a sufficient time to be killed. He submitted that for the reasons given, flight on foot was not a realistic alternative. The applicant submitted that he had very little time within which to make a decision. He submitted that he was not required to wait for Mr C to fire a shot. Had he done so, there was a high likelihood that he would have been killed. He submitted that his response in firing his weapon towards the threat could not be reasonably excluded as a reasonable response in the circumstances as he perceived them.

By way of conclusion, the applicant submitted that in order to find the first limb of self-defence made out, the jury must have accepted as a reasonable possibility or could not exclude as a reasonable possibility:

The applicant submitted that self-defence was made out because the only thing raised by the evidence upon which he could have perceived a need to defend himself (within s 418(2)(a)) was a bullet fired at close range. He submitted that the second limb of self-defence therefore fell to be considered on the basis that he was faced by a person at close range with a pistol he was about to fire. The applicant submitted that upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that his conduct was not a reasonable response in the circumstances in which he perceived them.

Alternatively, he submitted that the Crown could not negative the reasonable possibility that his conduct in firing the three shots that hit the two men was a reasonable response to the immediate threat perceived by him.

The test to be applied in an appeal on this ground is set out in M v The Queen [1994] HCA 63; 181 CLR 487. The High Court has reaffirmed the test in a number of cases including SKA v The Queen [2011] HCA 13; 243 CLR 400 in which French CJ, Gummow and Kiefel JJ (at [11] ff) said:

These principles were recently summarised by this Court (Hoeben CJ at CL; Schmidt and Wilson JJ) in CR v R [2017] NSWCCA 29 as follows:

The jury’s verdict of guilty to manslaughter (on the basis of excessive self-defence) means that they were not satisfied that the Crown had proved beyond reasonable doubt that the applicant did not believe that it was necessary to fire the shot that killed Yehya Amood in order to defend himself. In other words, they decided that there was a reasonable possibility that the applicant did believe that it was necessary to fire his pistol in order to defend himself. (As per the jury’s written directions in MFI 21.)

They were, however, satisfied beyond reasonable doubt that the Crown had proved that in the circumstances as the applicant perceived them to be, his response was an unreasonable one. Consistent with their verdict of manslaughter (on the basis of excessive self-defence) the jury found the applicant guilty of the wounding of Mr C with intent to cause grievous bodily harm on the basis that the applicant’s response was not reasonable in the circumstances as he perceived them and therefore the Crown had eliminated self-defence (the only issue the applicant disputed in respect of that count).

The issue on the appeal is therefore whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant’s conduct in each instance was not reasonable in the circumstances as he perceived them.

Three key issues arise for consideration in the light of the applicant’s submissions:

There was no issue that the applicant discharged at least 11 shots in total in quick succession. There were 11 fired cartridge cases located in close proximity to the Mercedes. There was evidence that 8 of the fired bullets struck the motor vehicle in which Mr C and Mr Amood were seated. Mr C was in the driver’s seat and Mr Amood was in the passenger seat. This conclusion was based on the fact that eight separate areas of the vehicle could be identified as having bullet related damage.

Two bullets struck Mr C and a single bullet struck the deceased. There was no bullet recovered from the deceased. His wound was consistent with a bullet having travelled straight through his right armpit, his right lung, his heart, his left lung and coming out the other side, i.e. his left armpit. The injury was not consistent with the bullet having travelled through a hard intermediate target before impacting with the deceased. In the case of Mr C, one bullet remained inside him. When it was later removed, it was found to be damaged in a way which indicated that it did hit a hard object before entering him.

The applicant contends that the evidence establishes that he fired the first three shots into the Mercedes while he was alongside that car and eight further shots as his car drove away. The applicant contends that “the most likely explanation” is that it was the three initial shots which wounded Mr C and killed Mr Amood. He therefore argues that in determining if his response was unreasonable in the circumstances as he perceived them, consideration should be confined to those first three shots.

There is a certain degree of artificiality in dividing the shooting incident up in this way, given that the shots were fired by the applicant in quick succession and could have been fired in as little as “a very few seconds” (T202.32). The firing of all of the shots was clearly part of the one course of conduct and could have been relied upon by the Crown in its entirety as constituting the relevant conduct in support of the necessary intention required for the murder charge and the wounding with intent charge.

That was not how the Crown case was run. The jury were directed for the murder charge to focus on the shot that killed Mr Amood and for the wounding with intent in relation to Mr C, on the shots that wounded him (written directions, MFI 21). Accordingly, in the circumstances of this case it was open to the jury to determine which shots were fired alongside the Mercedes and this group of shots could be contrasted with the shots which were fired from in front of the Mercedes as the applicant’s vehicle pulled away and which could not have been responsible for the relevant injuries or death.

In any event, for the purpose of this appeal the Crown has analysed the ballistics and crime scene evidence and has persuasively submitted that at least four shots must have been fired by the applicant when his vehicle was alongside the Mercedes. A copy of the table relied upon by the Crown is attached to these reasons and marked “Annexure A”. On my analysis of that table and the evidence to which it refers, the following conclusions arrived at by the Crown are correct and at least four shots were fired when the applicant’s vehicle was alongside the Mercedes.

The next question is what findings must have underpinned the jury’s determination that there was a reasonable possibility that the applicant did believe that it was necessary to fire his pistol in order to defend himself. The applicant has submitted that in order to have found that the first limb of self-defence was established the jury must have accepted as a reasonable possibility that:

It is reasonable to accept the first two propositions. For the jury to enter the verdict which they did in relation to Counts 2 and 4, they must have found as a reasonable possibility that Mr C had a pistol and that the applicant saw that pistol. The jury must also have found that the applicant did not go to his mother’s house on this occasion with an intention to shoot Mr C.

This leaves as the issue for determination whether in order to make those findings, the jury would also have had to conclude that Mr C was about to fire his pistol at him or that the applicant believed that Mr C was about to fire at him. It is this issue which formed the crux of the conviction appeal.

The Crown does not accept that such a degree of imminence or immediacy of the threat was essential to the finding which the jury made. The Crown submitted that it was open to the jury to conclude that when the applicant saw Mr C with a pistol he believed that there was a prospect or chance that Mr C might shoot at him rather than it being a situation where the applicant believed that Mr C was about to fire at him.

I accept the Crown’s submission that there is a real difference between the applicant observing that Mr C had a pistol and the applicant observing not only that he had a pistol, but that it was pointed at him in circumstances where it was reasonable for him to believe that Mr C was about to fire the pistol at him. If drawing such a distinction is open, then another way of putting the issue in the conviction appeal is whether it was open on all of the evidence for the jury to find beyond reasonable doubt that Mr C was not doing anything with the pistol so as to render the applicant’s conduct in firing three or four shots into the Mercedes, a reasonable response in the circumstances as he (the applicant) perceived them.

What is clear is that the jury’s acceptance of the reasonable possibility of self-defence under the first limb does not mean that the jury must have necessarily accepted the evidence of Mr C, Mr G and the applicant in its entirety. As was acknowledged by the applicant in submissions, a reading of the transcript demonstrates that there were clear reasons to doubt the reliability of aspects of the evidence given by each of those three witnesses. It is not without significance that the trial judge found that he had serious misgivings about the credibility of each of them.

An important matter relied upon by the Crown was the status of the driver’s side window in the Mercedes at the time of the shooting. The Crown relied upon the evidence relating to that issue on two bases:

It was the Crown’s contention that the driver’s side window of the Mercedes was either fully raised (i.e. closed) or partially raised at the time of the shooting. Although the applicant somewhat faintly pressed for their being another source of the glass on the front seat and back seats of the Mercedes, the evidence does not substantiate that submission. Photographs show that the bullet hole in the windscreen was small and that no other glass was displaced. There is no evidence of any specific damage to the instruments on the dashboard. The damage to the side mirror is not sufficient to account for the amount of glass shown in the photographs of the front and back seats. It was the opinion of Senior Constable Keay that the glass in those photographs (82 and 85 of Exhibit L) did come from the driver’s side window.

As the evidence from Mr C extracted in this judgment shows, his initial evidence was that the driver’s side window of the Mercedes was down and that he rested his pistol on top of the windowsill (T361.45). When the broken glass on the front and back seats was brought to his attention he said that he did not think the driver’s side window was up (T362.7).

In cross-examination by defence counsel he maintained that the window was down but conceded that he could not remember if the window was down 10cms or more (T376.35). When the inconsistency between his evidence of resting the pistol on the windowsill and resting it on the glass, was pointed out to him, his response was:

Mr G’s evidence was that the driver’s side window of the Mercedes was down. He did not resile from that evidence in cross-examination. Interestingly, in view of the cross-examination of Mr C by the Crown as to position of the window, when Mr G was asked what he observed (keeping in mind his observations were being made across the applicant towards the Mercedes) the first thing he said was that he noticed that the window on the Mercedes was down (T401.27). This was an odd response to such a general question. It leaves open a strong inference that this issue had been raised with him before he gave evidence as a result of the questions put to Mr C.

The applicant’s evidence was that the driver’s side window of the Mercedes was down. He confirmed that “a 100% it wasn't up” (T567.44). He was unable to say whether Mr C was resting his pistol on the windowsill or on something else. His final position was that he was “guaranteeing” that the window was down but it “could have been maybe just a little bit up, not all the way down” (T569.31).

On that state of the evidence, and for the reasons in the applicant’s submissions i.e. that no attempt was made to calculate the amount of glass on the front and back seats, nor the extent to which there was glass in the driver’s side door, it was not open to the jury to be satisfied beyond reasonable doubt that the driver’s side window was in the fully closed position.

I am, however, satisfied that it was open to the jury to find beyond reasonable doubt that the driver’s side window of the Mercedes was in a partially raised position, although it could not be said how far. The amount of glass shown in the photographs makes it clear that the window was raised substantially more than a few centimetres. Accordingly, it was open to the jury to find beyond reasonable doubt that one of the shots fired by the applicant had pierced the driver’s window in the Mercedes and shattered the portion of it that was in the raised position. In that regard, I am satisfied that there was sufficient glass shown in the photographs for the jury to be satisfied beyond reasonable doubt, even in the absence of express evidence, that the driver’s side window of the Mercedes was partially closed and that the extent of its closure exceeded a few centimetres.

Some support, albeit of a modest kind, is provided for that conclusion by the evidence in respect of the bullet that was recovered from Mr C from either his right thigh or right ankle which was closest to the window. The evidence was that the bullet had hit a hard object before entering Mr C. The glass of the driver’s window could have been such an object, although there was no specific evidence to that effect. Although this court is not bound by the findings of the trial judge, it is also not without significance that his Honour made a finding that the window was either fully or partially closed in his sentencing judgment (at [30]).

The second matter relied upon by the Crown and which should be considered with the evidence concerning the driver’s side window of the Mercedes, is the fact that Mr C was unable to discharge even a single bullet to defend himself in the time that the applicant discharged at least 3 – 4 shots while alongside the car. The Crown submitted that when that matter is taken into account with all of the other evidence, including the fact that the driver’s side window of the Mercedes was in a partially raised position, it places considerable doubt on the likelihood of Mr C giving the impression to the applicant that he was about to fire his pistol at him.

The Crown formulated its case on this issue as follows. At trial Mr C agreed that he was expecting the applicant and was “keeping an eye out” for him (T349.35) and was checking every car that drove past him (T355.9). As the four wheel drive approached, Mr C regarded it as suspicious because it was slowing down and he thought that it might be the applicant. He raised his pistol and put it on either the glass or windowsill. This was in a context where his purpose in being there was to shoot the applicant once he had been lured to that location (T352.17). Not only was Mr C’s pistol raised and pointed towards the approaching four wheel drive, but it was already cocked (T377.37). Mr C’s only explanation for being shot and for failing to fire a shot first or in reply was that it all happened too fast (T377.45). He said that he waited until the four wheel drive was next to the Mercedes to better identify the applicant (T353.48).

In summary, therefore, the scenario described by Mr C had him observing the four wheel drive as it approached. His pistol was drawn, cocked and he was following the movements of that vehicle. All that he had to do was press the trigger, an action which could be carried out in less than a second.

The evidence of the applicant was that he recognised Mr C’s car, and because he did not know what to expect, he placed his pistol on the seat in front of him and directed Mr G to drive next to Mr C’s car. When he saw that Mr C had a pistol, and that it was pointed at him he lowered the window of the four wheel drive, grabbed his pistol, cocked it and without aiming fired at least 11 shots in the direction of Mr C’s car (T499.40, T500.3, T501.31, T502.23, T503.40, T565.49, T566.19-.23).

I find that scenario and sequence of events to be incredible. There is simply no adequate explanation for such inactivity on the part of Mr C, whose evidence was that he was there for the sole purpose of ambushing and shooting the applicant. It was not as though he was inexperienced in the use of a pistol since there was evidence that he was a violent man who always carried one. What is particularly strange is his apparent inactivity when he saw the applicant grab his pistol and cock it. Even then all that Mr C had to do was press the trigger of his pistol. He was either a most extraordinarily inept gunman or his version of events is simply not true. As the applicant conceded at T566.23, some seconds would have passed while he was grabbing his pistol, cocking it and lowering his side window. It also needs to be kept in mind that cocking a pistol such as a Glock is a two handed operation which apparently occurred after the applicant’s side window had been lowered.

The fact that Mr C’s driver’s side window was at least partially raised is quite inconsistent with his evidence and that of the applicant that he was waiting to shoot the applicant as soon as he saw him. If it were partially raised, the presence of such an obstruction would make it needlessly awkward for Mr C to position and aim a pistol, let alone position the pistol outside the window. Resting the pistol on the glass instead of the windowsill, would not only be awkward but would provide a much less stable base thereby adversely affecting the aiming of the pistol. The evidence concerning the partial closure of the driver’s side window on the Mercedes is inconsistent with Mr C holding the pistol in the way which he described so that it was pointing towards the applicant. It is also inconsistent with the inference sought to be drawn by the applicant that the jury must have found that Mr C was holding his pistol in such a way as to create a reasonable expectation in him that Mr C was about to shoot him. That scenario would be even less likely and therefore less reasonable if the driver’s side window on the Mercedes was mostly closed at the time of the shooting.

The problem for the applicant arising from the partial closure or full closure of the side window of the Mercedes is increased if the jury concluded that the side window of the Mercedes was tinted. When Mr C was asked about that he said that he could not remember. That is a surprising response from someone who owned the car. Apart from that questionable response by Mr C, there was some evidence that the windows on the Mercedes were tinted. This can be seen on the photographs of the Mercedes in Exhibit M. Given their relative poor quality, those photographs are not conclusive but are certainly more suggestive of the glass being tinted than not. If the glass were tinted, this makes the closure or partial closure of the driver’s side window even more inconsistent with the evidence of Mr C and the applicant. It would be likely to interfere with Mr C’s vision and would prevent the applicant seeing what was happening in Mr C’s vehicle and in particular what he was doing with his hands.

As set out above, what can be concluded from the jury’s verdict is that they saw as a reasonable possibility, that Mr C was armed with a pistol and that the applicant saw that he was so armed. The issue before them was what belief did the applicant have in respect of what Mr C might do or was going to do in respect of that pistol. Why that is important is because what was open to the jury on that issue would flow into their determination of the issue of proportionality of the applicant’s response in the circumstances as he perceived them to be.

The jury had to make a factual determination of the circumstances that the applicant perceived. They did not have to accept the applicant’s account of those circumstances, nor that of Mr C, nor that of Mr G. They had to assess the reasonableness of their evidence against all of the evidence adduced in the case.

In carrying out that process, it was open to the jury to reject the evidence of Mr C and the applicant that the pistol held by Mr C was pointed at the applicant. It was open to them to find beyond reasonable doubt that such a scenario was inconsistent with the evidence concerning the partial closure of the driver’s side window and the unexplained failure of Mr C to fire any shots before or while the applicant was firing his shots.

In reaching that conclusion beyond reasonable doubt, it was open to the jury to have regard to the inconsistencies in Mr C’s evidence as to where and how the pistol was positioned when the four wheel drive approached the Mercedes. Those inconsistencies arose because of the difference between his original statement to the police and the evidence actually given at trial when he oscillated between whether the pistol rested on the windowsill or on the glass. It was also open to the jury to regard as unbelievable the proposition that if Mr C was “lying in wait”, intending to shoot the applicant with his pistol pointed at him, why he did not fire any shots given the various steps which the applicant had to take before he was in a position to shoot. If the jury reasoned in that way, as they were entitled to do, it was open to them to find beyond reasonable doubt that if Mr C’s pistol was not positioned in the way he and the applicant asserted, that the applicant would not have had a reasonable expectation that Mr C was about to shoot him and therefore his response was not reasonable in the circumstances as he perceived them.

Put another way, it was open to the jury when looking at all of the evidence and assessing the version given by the applicant and Mr C, to find that they were satisfied that there was a reasonable possibility that Mr C had a pistol and that the applicant saw it. However, it was also open to the jury to find beyond reasonable doubt for the reasons set out above, that they were not satisfied that the pistol was actually pointed at the applicant nor that Mr C was about to shoot the applicant. In that scenario the pistol was not on the windowsill, nor on the window, nor about to be fired, but rather was simply held by Mr C when he was observed by the applicant. In that situation it would be open to the jury to return the verdict which they did because they were satisfied that there was a reasonable possibility that the applicant believed the firing of his pistol was necessary because he had a belief that there was a prospect or a chance of Mr C using his pistol against him. In that circumstance, the jury would have found that the applicant’s belief was that Mr C might use his pistol to shoot him not that he was likely to shoot him. If he had such a belief, it was still open to the jury to find that there remained a reasonable possibility that he believed it was necessary to shoot but also be satisfied beyond reasonable doubt that his response was excessive. Such a process of reasoning would explain the finding of the first limb of self-defence and also the finding of a lack of proportionality in the response as required by the second limb of self-defence.

In that scenario there is another issue which would fortify the finding of the jury as to lack of proportionality. That is the fact that the applicant discharged his pistol without aiming and while turning away in circumstances where he knew that there was a driver who had a pistol but when he also knew that there was another person in the passenger seat and there was no evidence that this person had a weapon. It was open to the jury to have regard to that matter also in concluding beyond reasonable doubt that shooting in such circumstances was not a reasonable response.

There is another approach to the facts which would have enabled the jury to find beyond reasonable doubt that while the applicant believed his conduct was necessary to defend himself, that conduct was not a reasonable response even having regard to the circumstances as he perceived them. This relates to the choice available to the applicant of driving away from the Mercedes, rather than firing his pistol at Mr C. There is no issue that the car the applicant was in had only stopped on the road next to the Mercedes. It was not parked and the engine was still running. The driver was in a position to easily and quickly drive off (which he ultimately did). If it be the case, as I have found, that it was open to the jury to find that the applicant’s belief at the relevant time was that Mr C had a pistol and might use it against him, the apparent inactivity of Mr C in not firing while the applicant lowered his window and cocked his pistol provided the applicant with an opportunity to tell Mr G to drive away. The applicant’s explanation for why he did not give such a direction (T575) was that had he done so, he might have been fired upon by Mr C. That was no more likely than Mr C continuing to be inactive. Rather than taking advantage of Mr C’s inactivity to escape, the applicant’s first reaction was to fire not only one shot but three – four. In those circumstances, had the jury found (as was open to them) that the applicant’s belief was that Mr C might fire at him, it would be open to the jury to also find that firing three – four shots indiscriminately, rather than immediately trying to drive away, was not a reasonable response in those circumstances. What the jury may well have had in mind, had they reasoned in that way, was the inactivity on the part of Mr C who on his own evidence and that of the applicant was in an ideal position to fire on the applicant but inexplicably did not do so.

It follows from the above that it was open to the jury to be satisfied beyond reasonable doubt that the applicant’s conduct in firing at least three – four shots while alongside the Mercedes was not a reasonable response in the circumstances as the applicant perceived them at that time. The conviction ground of appeal has not been made out.

The applicant seeks leave to appeal from the sentence imposed by R A Hulme J on 28 October 2016 (R v Hamzy [2016] NSWSC 1512):

The crime of manslaughter (ss 18 and 24 of the Crimes Act 1900) carries a maximum penalty of imprisonment for 25 years. The crime of wounding with intent to cause grievous bodily harm (s 33(1)(a) Crimes Act) carries a maximum penalty of imprisonment for 25 years and has a standard non-parole period of 7 years.

In respect of Count 4 his Honour sentenced the applicant to imprisonment with a non-parole period of 4 years and 3 months and a balance of term of 1 year and 5 months, being a total sentence of 5 years and 8 months to date from 26 August 2014.

For Count 2 his Honour sentenced the applicant to imprisonment with a non-parole period of 7 years and 6 months and a balance of term of 3 years, being a total sentence of 10 years and 6 months commencing 26 August 2015.

Accordingly, the overall sentence imposed by his Honour was imprisonment for 11 years and 6 months with a non-parole period of 8 years and 6 months, there being concurrency of 1 year between the two sentences.

The sentencing judge noted that the sentencing judgment had to be read with R v Hamzy (No 2) [2016] NSWSC 1514.

Because the verdicts of guilty had been delivered following a jury trial, it was necessary for his Honour to make a number of factual findings. His Honour first set out those facts which were not in dispute. These were that the applicant had arranged the meeting with Mr C as a result of the text messages set out [15] hereof. Both the applicant and Mr C were armed with Glock pistols. The applicant armed himself because he was told that Mr C was going to shoot him and he thought he would take a pistol along “just in case”. The applicant agreed that he was “going armed to meet a man whom he expected to be armed”.

His Honour found that as the Lexus four wheel drive in which the applicant was travelling approached his mother’s townhouse complex on Greenacre Road, the applicant directed Mr G to pull over beside the parked Mercedes. The applicant had his pistol ready. It was fully loaded. The four wheel drive was a little higher than the Mercedes and as it came alongside, the applicant looking down towards the driver, saw that Mr C also had a pistol. His Honour found that the applicant saw Yehya Amood in the car at the same time.

His Honour described what happened next as:

His Honour then described the effect of the shots, i.e. wounding Mr C and killing Mr Amood.

His Honour assessed the credibility of those persons who gave evidence at trial. That assessment was along the lines set out in the conviction appeal at [32]. In summary, his Honour considered that there were difficulties with the credit of Mr O, Mr C, Mr G and the applicant (sentence judgment at [23], [26]-[29]). His Honour concluded that he was not prepared to act on the evidence of any of those witnesses, except where it was necessary to do so in order to maintain consistency with the jury’s verdicts. His Honour was not prepared to accept either of the competing reasons advanced by the parties for the animosity that clearly existed between the applicant and Mr C.

His Honour analysed the effect of the jury’s verdict:

His Honour assessed the seriousness of the offences as follows:

While his Honour accepted that the applicant believed that it was necessary to do what he did in order to defend himself so as to reduce his crime from murder to manslaughter, his Honour was not prepared to find that this factor operated to further reduce the seriousness of that manslaughter. His Honour took into account that the situation which gave rise to the shooting was largely of the applicant’s own making. It was he who had arranged for Mr C to attend the meeting and it was he who armed himself knowing that Mr C would probably also be armed. His Honour characterised the applicant’s explanation for what happened as “self righteous” and as involving “a complete lack of insight into the gravity of the criminality of his conduct” (at [35]). His Honour concluded that the manslaughter offence was one of considerable seriousness and that the wounding of Mr C with intent was an offence of moderate seriousness for an offence of its type.

When reviewing the applicant’s personal circumstances, his Honour noted that he was born in 1985 and was aged 27 at the time of the offences. He had a significant criminal record that disentitled him to any leniency. His Honour concluded that his criminal record also meant that increased weight should be given to personal deterrence in the assessment of sentence. In reviewing the applicant’s criminal record, his Honour identified five offences of assault when he was aged 16; offences of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm and assault occasioning actual bodily harm when he was aged 17 and when aged 19 he received a sentence of imprisonment for 5 years with a non-parole period of 3 years from the District Court. There were a number of other offences described by his Honour and periods of imprisonment up to the date when these offences occurred. Eleven days after the shooting of the deceased and Mr C, the applicant was found in possession of an unauthorised automatic pistol, which was not the same pistol as he had used on 14 October 2012. His Honour noted that the applicant had been taken into custody on 7 November 2013 in respect of these matters and had remained in custody ever since.

His Honour pointed out that whereas he would normally backdate the commencement date of the sentence for these matters until then, the applicant had during that time been convicted and served sentences for other matters, in particular the pistol possession offence of 25 October 2012. Accordingly, in the exercise of his discretion as to when to commence the sentence, his Honour backdated the commencement of the sentence to 26 August 2014.

Because the applicant had offered to plead guilty to self-defence manslaughter at an early point in time, and this was the result of the trial, his Honour allowed a discount in his favour of 25 per cent in respect of the manslaughter offence and 20 per cent in respect of the wound with intent to cause grievous bodily harm. There was a further discount of 10 per cent as a result of matters referred to in R v Hamzy (No 2).

Because the applicant had been taken into custody on 7 November 2013 and his trial had not come on for hearing until June 2016, his Honour took into account that delay by way of mitigation. Nevertheless, his Honour did not regard the delay as substantial and his Honour noted that there was no evidence before the court as to how the delay had impacted upon the applicant.

It was not submitted that the applicant had good prospects of rehabilitation and that he was unlikely to reoffend. Accordingly, his Honour concluded that the sentence which he imposed must include a significant element of personal deterrence.

His Honour accepted that the applicant genuinely regretted the death of Yehya Amood and was remorseful in relation to it. His Honour was not satisfied that the applicant was otherwise remorseful for taking a loaded pistol to what he appreciated was a potentially violent confrontation and using it in his perceived need to defend himself without thought as to the tragic consequences which might occur.

His Honour accepted that the applicant had to be sentenced for the manslaughter of Mr Amood on the basis that he intended to cause grievous bodily harm, not to kill. Even so, his Honour opined that the sentence would have to reflect that this was a serious example of such an offence. His Honour said:

His Honour assessed general deterrence to be a significant consideration in this case. This was against a background where as his Honour stated “Criminals have resort to handguns which end up being used with lethal consequences” (at [58]). His Honour acknowledged that the sentence had to recognise the substantial harm done to the victim and the community by the offending. His Honour took into account that the offences occurred while the applicant was at conditional liberty on a bond to be of “good behaviour”.

Because there were two victims, his Honour found that some level of accumulation was required.

The applicant submitted that his Honour’s characterisation of the manslaughter offence as one of “considerable seriousness” and the wounding with intent as one of “moderate seriousness” and his finding that the applicant bore “a high level of moral culpability” for the offences were not properly open. The applicant submitted that those characterisations and that finding failed to have regard to the fact that he had fired the shots intending to inflict grievous bodily harm in circumstances where he was faced with a lethal weapon and honestly believed that it was necessary for him to act as he did. The applicant submitted that his Honour’s findings as to seriousness and moral culpability were not consistent with the jury’s verdicts.

The applicant submitted that his Honour’s conclusion about the state of the driver’s window in the Mercedes as minimising the immediacy of the threat posed by Mr C, was not open on the evidence. The applicant submitted that even if it were accepted that the window was closed, or mostly closed, this might lead to an inference that Mr C was on a purely objective basis not about to fire at the applicant. The applicant submitted that the evidence did not, however, establish that he knew or perceived that the window was closed, or mostly closed. The applicant submitted that regardless of the state of the window he could not have formed an honest belief that it was necessary to fire his pistol without at least a belief that Mr C was armed with a pistol and that he was going to use it on him, i.e. in the circumstances as he perceived them, he (the applicant) was about to be shot.

The applicant submitted that in making that assessment the sentencing judge moved from the subjective to the objective whereas liability and in turn culpability, is based on the response being an objectively excessive response not to the circumstances themselves, but in the circumstances as the applicant perceived them to be. The applicant submitted that his Honour’s assessment failed to have proper regard to his (the applicant’s) perception of the circumstances, i.e. that he was about to be shot and as a result did not properly reflect his moral culpability.

In support of that submission the applicant relied upon the analysis in Smith v R [2015] NSWCCA 193 (Simpson JA with whom Leeming JA and Hamill J agreed). The applicant submitted that against a factual background which was very similar to that in this case, the Court determined that if the offender in that case had perceived that the victim was armed with a pistol which he was about to use then the degree of departure from what was reasonable would inevitably be seen as substantially less. The applicant submitted that a similar analysis should have been carried out here and if it had been, it would have invalidated his Honour’s characterisation of the offences as being of considerable seriousness and bearing “a high level of moral culpability”.

The applicant accepted that it was open to his Honour to find that the situation was largely of the applicant’s own making and that his decision to take the pistol with him was relevant to the severity of the sentence to be imposed. What the applicant did not accept was that when he gave evidence about “anyone in my situation that had that state of mind would do the same thing” he was putting forward a self-righteous exculpation of his conduct. The applicant submitted that properly understood, this evidence upon which his Honour relied as indicating a lack of insight, was in fact directed at his decision to fire the shots rather than take some other action in response to the threat as he perceived it to be.

The applicant submitted that in those circumstances, his Honour having erred in his findings in relation to objective seriousness, a lesser sentence was warranted in law and that he should be resentenced.

This ground of appeal and the reference to Smith v R in effect raise the same issue as that which was considered in the conviction appeal. The distinction between the findings open to the jury in Smith and in this case, was that in Smith v R it was accepted that the motivation for the shooting was a perception by the offender in that case that the victim had a loaded gun and was about to use it against him, whereas the victim was in fact reaching for a set of knuckle dusters. It appeared to the offender that he was reaching for a pistol and that he intended to use it. In this case, for the reasons set out in the conviction appeal, it was open to the jury to find beyond reasonable doubt that the perception of Mr C’s intention by the applicant went no higher than a prospect or a risk that he might use the pistol, not an immediate intention to do so. That is a significant difference and justifies the more severe assessment which his Honour made of the objective seriousness of the offending.

It was for this reason that his Honour referred specifically to the important distinctions in this case which made it different to that of Smith v R. From his elevated position in the four wheel drive, it would have been obvious to the applicant if Mr C’s window was closed, or partially closed, so that he (Mr C) presented no immediate threat. As explained in the conviction appeal, that perception by the applicant would have been reinforced by the otherwise unexplained (and extraordinary) inactivity on the part of Mr C had he been intending to shoot the applicant, given that he was in an ideal position to do so.

Once the distinction between the perceptions of the offender in Smith v R and the applicant in this case is kept in mind it was well open to his Honour to make the assessment of objective seriousness of the offending which he did. The applicant did bring about a situation where a confrontation between him and Mr C was inevitable. He exacerbated the situation by arming himself before attending the rendezvous. He made a pre-emptive strike in circumstances where the threat to him from Mr C was not immediate and that pre-emptive strike itself, involving as it did the firing of 11 shots in an un-aimed fashion in a public street was a matter of significant aggravation.

As his Honour made clear at [34] of the sentencing judgment, he did not take into account his finding at [35] of that judgment, i.e. the lack of insight shown by the applicant’s self-righteous justification of his action, as a matter which impacted upon the objective seriousness of the offending, rather than his subjective case. His Honour was well aware of the distinction and did not err in the way asserted.

This ground of appeal has not been made out.

The applicant submitted that when one allowed for the discount in sentence found by his Honour, the starting point for the manslaughter sentence was 16 years and 2 months. The applicant submitted that such a starting point gave rise to error because it lacked proportionality when regard was had to the fact that the offence giving rise to the manslaughter conviction was committed in circumstances where he honestly believed that his conduct was necessary in his own defence. In the circumstances, the applicant submitted that the sentence was “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325).

The applicant submitted that this submission was supported by reference to a number of “comparative” cases, the significance of which was discussed in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58. The applicant relied upon the observation of the plurality (French CJ, Hayne, Kiefel and Bell JJ) at [41] where their Honours said:

The applicant referred specifically to Vuni v R [2006] NSWCCA 171 where this Court considered a sentence appeal for a single count of manslaughter where the applicant was found not guilty of murder but guilty of manslaughter on the basis of excessive self-defence. In that case, Studdert J imposed a sentence of 10 years comprising a non-parole period of 7 years and 6 months with a balance of term of 2 years and 6 months. No utilitarian discount was applied so that the starting point for the sentence was 10 years.

The applicant noted that the facts in Vuni involved the appellant firing a single shot into the deceased’s head with a pistol. The shot involved an intention to kill. The deceased had made threats to the offender and others before the shooting. On the night of the shooting, the deceased and the offender became involved in a heated verbal argument. During the argument the offender shot the deceased. His Honour rejected the version given by the offender and found that while he may have believed that the deceased was armed, there was no immediate threat posed to him and both of the deceased’s hands were visible to the offender when he fired the shot. The offender did not have a strong subjective case and had what was described as a “poor” criminal record.

The Court (Tobias JA, James and Hoeben JJ) dismissed the appeal against sentence finding that the sentence imposed was not manifestly excessive. The applicant submitted that the starting point for this sentence of 16 years appears very high when one compares it to the 10 years imposed in Vuni.

The applicant relied upon Diab v Regina [2009] NSWCCA 58 where an appeal against sentence was dismissed. The judgment at first instance was a judgment of Studdert J (Regina v Diab [2007] NSWSC 577). The offender was sentenced to a non-parole period of 7 years and 9 months with a balance of term of 2 years and 6 months. (An effective sentence of 10 years and 3 months.) A discount of 15 per cent was applied reflecting a starting point of approximately 12 years for the total term. The offender had pleaded guilty to manslaughter on the basis of excessive self-defence.

In Diab the offender and the deceased were involved in drug dealing. A few days before the shooting, the deceased had threatened the offender. Just before the shooting, the offender, the deceased and the offender’s brother were involved in a verbal argument. The deceased drew a handgun (but did not fire it). The offender drew his pistol firing five times at the deceased, including striking him twice to the chest.

Studdert J found (at [10]):

Studdert J also found that the offender had expressed no sympathy and had been involved in other misconduct. While the offender had a lesser criminal history than the applicant, the offence occurred in a context where the offender and the deceased were “clashing over their respective drug dealing activities”.

The applicant relied upon Grant v R [2014] NSWCCA 67. In that case, this Court considered an appeal against sentence imposed for a single count of manslaughter based on excessive self-defence. The sentence imposed at first instance was a non-parole period of 8 years and 6 months with a balance of term of 3 years and 6 months, i.e. a total effective sentence of 12 years. While the plea was ultimately late, it came after an early offer had been rejected and the appellant was found to be entitled to “the maximum allowance” of 25 per cent on account of the utilitarian value of the plea. Accordingly, the starting point was a sentence of 16 years.

The facts of Grant v R were that the offender was involved in large scale cannabis cultivation. The deceased and a friend travelled to the offender’s property with the intention of stealing cannabis. When they entered the open front door, they were confronted by the offender who shot them twice with a pistol which he had obtained at some time earlier and kept to protect his illegal drug operation. Both bullets hit the deceased in the chest.

This Court (Leeming JA, Adams and Hall JJ) found that a miscarriage of justice had resulted in the offender’s solicitor admitting that he had an intention to kill (as opposed to an intention to inflict grievous bodily harm). In those circumstances, the complaint as to manifest excess was not resolved. However, in the course of determining whether a lesser sentence was warranted in law, the Court held that while it was a “serious case of manslaughter” (at [78]) a lesser sentence was nonetheless warranted.

The Court resentenced the offender to a non-parole period of 7 years and 6 months with a balance of term of 2 years and 6 months (a total term of 10 years). This was after a 25 per cent discount was imposed reflecting a starting point of approximately 13 years and 4 months.

In Smith v R, to which reference has already been made, the offender received a sentence of 9 years with a balance of term of 3 years (a total sentence of 12 years). This was after a 25 per cent utilitarian discount was imposed reflecting a starting point of 16 years.

The facts of Smith v R were that the offender and the deceased were friends and used drugs together. They had had fights in the past. On the day of the shooting, they had a confrontation and the offender swung a pair of bicycle forks at the deceased which struck him once. In that fight the deceased had armed himself with a piece of timber. A fight between the two was arranged for later in the day. The offender then armed himself with a rifle. At the time fixed for the fight the deceased attended with a pair of knuckle dusters (although these were concealed from view). Some others who were present may also have been armed (said to be with a pole and a machete). There was a verbal altercation between the deceased and the offender and these others. The offender then took out the rifle, aimed it at the deceased and shot him once. No physical altercation had yet occurred, although the offender gave evidence he believed his conduct was necessary to defend himself. He said he believed that the deceased had a gun.

The trial judge, Garling J, approached the sentence at first instance on the basis that the offender believed he was in danger from the deceased and believed he was reaching for a weapon but did not find that he believed the deceased had a gun or that the deceased was about to shoot him. His Honour found his conduct was “manifestly excessive” or “grossly excessive”. This Court (Simpson JA, with whom Leeming JA and Hamill J agreed) found error in that approach. The Court found that the offender must have believed that the deceased had a gun and was about to use it. Given the finding of error in the sentence, the Court did not consider whether the sentence was manifestly excessive.

The Court resentenced the offender to a non-parole period of 7 years and 6 months with a balance of term of 2 years and 6 months (a total sentence of 10 years). Given that the maximum utilitarian discount was applied, this reflected a starting point of approximately 13 years and 4 months. Other relevant considerations in Smith v R were findings of a lack of remorse, modest mitigating features and that the offence was committed while the offender was on parole.

The applicant submitted that while acknowledging that no two cases are the same, the above decisions support the applicant’s submission that the sentence imposed upon him is, in all the circumstances, manifestly excessive.

As was recently observed in Vaiusu v R [2017] NSWCCA 71 (R A Hulme J with whom Bathurst CJ and Beech-Jones J agreed) at [28], when dealing with a ground of manifest excess, it is necessary to have regard to the following principles:

The applicant’s submissions focus heavily upon an analysis of four cases said to be comparable with the instant case in support of the contention that the sentence imposed in respect of the manslaughter offence was unreasonable or plainly unjust. No complaint is made in respect of the sentence for the wounding with intent to do grievous bodily harm offence, nor is any complaint made concerning the level of accumulation.

The problem in the applicant’s reliance upon comparative cases were identified by Harrison J in De Wet v R [2015] NSWCCA 23 (with whom Hoeben CJ at CL and R A Hulme J agreed):

It is trite to observe that the four comparative cases relied upon by the applicant reveal significant differences in terms of the objective and subjective features of the relative offence and offenders. No attempt has been made to identify any unifying principles which the four sentences reflect.

It is well established that because the range of conduct and circumstances which can give rise to a conviction for manslaughter are so variable, the applicable sentences are also highly variable: Pitt v R [2014] NSWCCA 70 at [52]. It is rare for there to be any real comparability in facts even within a category of manslaughter (such as excessive self-defence: Vuni v R at [29] – [30]. Given the infinitely various circumstances, limited guidance is to be obtained from previously imposed sentences.

Before considering the four cases nominated by the applicant, it is important to set out some of the other relevant features of the current matter:

In relation to the four cases cited by the applicant, the following additional observations can be made:

In summary, none of the cases referred to by the applicant are directly analogous with the current matter. While there are points of similarity, there are other points of dissimilarity warranting different discretionary determinations. For example, unlike any of the above cases, in this matter, the deceased’s life was taken in circumstances where he was not the intended victim and he did not offer any threat to the applicant.

The sentence imposed by his Honour in the current matter properly reflected the fact that the applicant took a loaded handgun to a meeting planned with Mr C with foresight that there could be a confrontation and he may use it. The sentence reflected the extent to which the applicant’s conduct in discharging his firearm so many times departed from what would have been a reasonable response in the circumstances his Honour found were perceived by the applicant. Further, the offending occurred while the applicant was subject to a good behaviour bond and there was little in the applicant’s subjective case that assisted him. The statutory guidepost in the form of the maximum penalty of 25 years was properly taken into account by his Honour.

In the circumstances it cannot be said that the sentence imposed upon the applicant for the manslaughter offence was unreasonable or plainly unjust. This ground of appeal has not been made out.

The orders which I propose are:

SIMPSON JA: The relevant facts and circumstances are fully set out in the judgment of Hoeben CJ at CL, which I have had the advantage of reading in draft. It is unnecessary to repeat them. What is obvious is that the evidence in the trial presented significant difficulties both to the jury and to the sentencing judge when it came to sentencing. That was because of the lack of credibility of the principal witnesses.

Section 421 of the Crimes Act 1900 (NSW) also presents difficulties, of construction. The section provides what is commonly called a “partial defence” to a charge of murder. When made out, the partial defence reduces what otherwise would be murder to manslaughter. Although the terms of s 421 are set out in the judgment of Hoeben CJ at CL, it is convenient to repeat them:

Relevantly for present purposes, the elements of the partial defence are:

By s 418, the second and third elements also arise in relation to the offence of wounding with intent to cause grievous bodily harm.

By s 419, the prosecution has the onus of proving each element beyond reasonable doubt. The first element was not in issue; on the murder charge, it was common ground that the applicant used force that involved the infliction of death. Similarly, it was not in issue that the applicant engaged in conduct that caused the wounding of Mr C.

Notwithstanding the sequence in which the elements are set out in subs (1) of s 421, it is logical to start with the belief of the accused person.

In this case, the jury verdict on the charge of murder requires acceptance of the proposition that the applicant believed that what he did (the only meaning I can attribute to the words “the person believes the conduct …”) was necessary to defend himself: that is, the applicant believed that it was necessary, in order to defend himself, to shoot, or to shoot at, Mr C. That must be the starting point in the consideration of the appeal against conviction. (I accept that, strictly speaking, the verdict means that the Crown had failed to negative the possibility that the applicant held the requisite belief. But once the Crown failed to do so, it had to be assumed that the applicant held that belief.)

It is in the consideration of what is intended by s 421(1)(b) that the difficulty of construction arises. The jury is required to consider whether the conduct (whether that was shooting Mr C, or shooting at Mr C) was a reasonable response in the circumstances as the applicant perceived them. The provision requires that the question of reasonableness be answered in the light of the circumstances as the applicant perceived them. The circumstances as the applicant perceived them included (by reason of the jury verdict) that it was necessary for him to do what he did (that is, shoot at Mr C) in order to defend himself.

So to construe s 421(1) would deprive the third element of meaning. It would mean that whether the third element was established would be dictated by the second, and have no real independent operation. “[T]he circumstances as he or she perceives them” in s 421(1)(b) must exclude the circumstance that the accused person believed that the conduct was necessary in order to defend himself. However, it does not exclude the basis upon which the applicant came to that belief.

A principal factual issue in this respect concerned the position of the window of the Mercedes driven by Mr C at the time of the events in question. It was the Crown case that the window was closed. It was the applicant’s case that the window was open (or partially open) and that Mr C was armed with a gun which he was about to use against the applicant.

I find it 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 believed the window was at least partially open, so that he was at risk of being shot by Mr C. That is because, in the event that the window was closed, other options were available to him – notably, to have the driver of his vehicle speed away from the area. The jury verdict is rational only on the basis that they accepted (as a reasonable possibility) that the applicant believed that the window of the Mercedes was open, or open sufficiently to enable Mr C to shoot at the applicant.

That makes the jury verdict more difficult to understand. If the applicant did believe that the window was open or partially open, and that Mr C was about to shoot, then there was little else that he could do other than fire his own gun – in other words, that his conduct was not shown to have been not a reasonable response.

The jury could hardly have concluded that the Crown had failed to exclude the reasonable possibility that the applicant had the relevant belief unless it also concluded that he believed that he was in imminent danger of being shot by Mr C. The conduct involved is so extreme that only a belief in imminent and dire danger (of being shot) could have founded a belief that it was necessary to shoot (as distinct from taking some evasive or preventative action). I take it that the jury accepted that the applicant believed that the window was open or partially open, and that Mr C was armed with a gun which he proposed to use to shoot the applicant. It is then necessary to consider the third element.

Section 421(1)(b) is in two parts. One concerns the belief of the accused person as to the circumstances. That is to be determined subjectively. The other is the reasonableness of the conduct of the accused person in response to those circumstances (whether or not the circumstances were objectively verifiable). The question of reasonableness is to be determined objectively.

The “belief” part of s 421(1)(b) does not depend upon an objective analysis of factual matters such as the position of the window. It depends upon what the jury concludes as to the applicant’s perception of those matters. For that reason, I cannot accept the reasoning of Hoeben CJ at CL at [95]-[118].

The trial judge did not make any specific finding, for sentencing purposes, about the applicant’s perception of the circumstances for the purposes of s 421(1)(b). In my opinion, it must be concluded that the applicant believed that the window of the Mercedes was open or partially open and that Mr C was about to, or was likely to, shoot at him. Otherwise, as I have said earlier, it is difficult, if not impossible, to explain the jury’s conclusion with respect to the applicant’s belief that his conduct (shooting) was necessary in order to defend himself.

The question which then arises is whether that conduct was a reasonable response to those circumstances. More accurately, the question is whether it was open to the jury to conclude that the Crown had failed to establish that that conduct was not a reasonable response to those circumstances. That is a question to be determined objectively.

Once it is accepted, as it must be, that the applicant believed that the conduct was necessary in order to defend himself, and that the basis for that belief was the antecedent belief that Mr C was likely to shoot him, then I find 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. Applying the principles stated in the authorities cited by Hoeben CJ at CJ at [77]-[78], such a conclusion was not open to the jury.

It follows that, in my opinion, the appeal against conviction on both counts must be allowed, and the convictions and sentences quashed.

McCALLUM J: I have read the judgments of Hoeben CJ at CL and Simpson JA in draft. I agree with Hoeben CJ at CL that both the appeal against conviction and the appeal against sentence should be dismissed. As to the appeal against sentence, I agree with the orders proposed for substantially the reasons his Honour has stated. It is appropriate to state my own reasons concerning the dismissal of the appeal against conviction.

The nature of the task for the appellate court in an appeal on the ground that the verdict is unreasonable, or cannot be supported, having regard to the evidence is well understood. The relevant principles have been referred to by Hoeben CJ at CL. There is one aspect of those principles that warrants particular emphasis in the circumstances of the present case.

The critical issue in the appeal is s 421(1)(b), which required the Crown to establish beyond reasonable doubt that the applicant’s conduct was not a reasonable response in the circumstances as he perceived them. Questions of reasonableness require the application of objective community standards, which are very much within the knowledge of juries. So much is recognised in s 132(5) of the Criminal Procedure Act 1986 (NSW), which addresses the circumstances in which a court may refuse to make an order for trial by judge alone, providing as follows:

I do not mean to suggest that any different principle applies in an appeal that involves a question of reasonableness, but only to emphasise the traditional acknowledgement of the nature of the jury’s function in that context. I remain of the view I expressed in Hawi v R [2014] NSWCCA 83 at [480] that the advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.

It is common ground that the central issue in the present appeal is whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant’s conduct was not a reasonable response in the circumstances as he perceived them. I agree with the Chief Judge’s analysis at [83]-[88] above as to the conduct to which the jury could have had regard in making that assessment. I respectfully do not share his Honour’s conclusions discussed at [89] and following as to the findings of fact the jury must have made in order to be satisfied as to the element in s 421(1)(c) (that, in the circumstances as he perceived them, the applicant believed his conduct was necessary to defend himself) but I do not think it is necessary to adopt that analysis in order to answer the question raised by the appeal.

I agree with Simpson JA that although, strictly speaking, the verdict means only that the Crown failed to negative a reasonable possibility as to the applicant’s belief, the consequence is that the appeal should be determined on the premise that he did hold that belief. The critical question, then, is whether, having accepted that the applicant believed it was necessary to fire his pistol in the manner in which he did in order to defend himself against the perceived threat of being shot by Mr C, it was open to the jury to be satisfied beyond reasonable doubt that his conduct was not a reasonable response in the circumstances as he perceived them. Or, to adopt the language of Hayne J in Libke, the question is whether the jury must, as distinct from might, have entertained a doubt on that issue.

In considering that element, the jury had to undertake an evaluative assessment of both the degree of threat and the proportionality of the response. As Simpson JA has explained, the applicant’s belief had to be determined subjectively while the reasonableness of his response had to be determined objectively (but by reference to the circumstances as he perceived them). In that way, s 421 deliberately subjects an accused person’s subjective assessment of his circumstances to the test of objective community standards. Having accepted the existence of a subjective belief as to what was necessary for the purpose of self-defence, the jury is not obliged to treat that belief as a reasonable belief or a warrant for the accused person’s conduct. On the contrary, the section assumes that those are separate questions to be determined by the application of different tests.

Although I do not share the conclusions reached by Hoeben CJ at CL as to what must have operated on the jury’s mind, his Honour’s careful analysis of that issue reveals that it was open to the jury to regard the degree of threat posed by Mr C as something well short of the immediate threat of a gun pointed directly at the applicant with a readiness to shoot.

On that premise, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant’s conduct was not a reasonable response in the circumstances as he perceived them. To test the issue in a different way, it was open to the jury to set a higher bar as to whether it was reasonable to fire the gun in the circumstances the applicant perceived than the applicant’s subjective belief that it was necessary.

Standing back from applicant’s minute analysis of the position of the window, the position of the gun and the number of bullets fired before and after the Lexus pulled away, the jury might readily have accepted that, in the world of the Brothers for Life, the applicant honestly believed in that moment that he had to shoot or be shot. In my assessment, having reached that conclusion, 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.

The applicant’s own evidence was to the effect that, by the time he had seen that Mr C had a gun, Mr C had not even identified that it was the applicant in the car pulling up beside him:

There was no cogent evidence that Mr C’s pistol was aimed directly at the applicant at any point. The fact that Mr C did not fire any shots at all is compelling evidence that the applicant was well ahead of the game in firing when he did. As Hoeben CJ at CL has explained, it was open to conclude that, in the time it took the applicant to load his gun, he could have commanded Mr G to drive off. The view he expressed in his evidence on that issue is not determinative on this second limb. Indeed, he could have done both things at the same time (given the command to drive and loaded his gun).

As to firing recklessly, the applicant’s own evidence was enough to support that conclusion:

Put another way, the jury was not obliged to treat the applicant’s belief as to the need to fire at least four bullets at close range into a car containing two people without looking where he was firing (in fact, looking away) as determinative of the question as to what is a reasonable response to the threat of a gun he did not perceive to be pointing directly at him.

For those reasons, I am satisfied that it was open to the jury to reach the verdicts it did on counts 2 and 4.