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District Court 26 November 2012

R v Elfatah Yucub EL-HAJ

[2012] NSWDC 296

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW PROCEDURE TRIAL BEFORE JUDGE WITHOUT JURY PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON STATUTORY ALTERNATIVE

Citation: R v Elfatah Yucub EL-HAJ [2012] NSWDC 296
Court: District Court of NSW
Date: 26 November 2012
Judge: Cogswell SC DCJ

Background

In the early hours of 29 October 2010, the accused was heavily intoxicated at a unit in Blacktown. A dispute broke out after a friend made a remark he took offence to, and he attacked a young visitor before taking a hammer to that visitor's car and then ramming the car into a tree. As those around him screamed at him to stop, he got into his own vehicle and reversed out of the driveway at speed.

In doing so, he struck a woman who had been outside during the incident. The back wheel of his car went almost completely over her body. Several people screamed at him to stop. He did not stop and sped away.

The DPP presented a three-count indictment. The first count alleged inflicting grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900. The second count (pleaded as an alternative to the first) alleged dangerous driving occasioning grievous bodily harm under s 52A(3)(c). The third count alleged failing to stop and assist after an impact causing grievous bodily harm under s 52AB(2). Both parties elected a judge-alone trial.

  • Whether the prosecution proved beyond reasonable doubt that the accused intended to cause grievous bodily harm when he reversed out of the driveway, satisfying the elements of s 33(1)(b) of the Crimes Act 1900.
  • Whether the statutory alternative under s 35(2) of the Crimes Act 1900 was made out, that is, whether the accused caused grievous bodily harm while being reckless as to causing actual bodily harm.
  • Whether the accused's significant intoxication affected his capacity to form the requisite intent or state of recklessness.
  • Whether the accused was guilty of failing to stop and assist after a vehicle impact causing grievous bodily harm, contrary to s 52AB(2).
  • Where the victim was standing at the moment of impact, and which witnesses' accounts should be preferred on that contested factual question.

Decision

Count 1: Intent not proved beyond reasonable doubt. The central factual dispute was whether the victim was standing directly behind the car or further out on the road. Her daughters placed her directly in the path of the reversing vehicle, which would have supported an inference of intent. However, a neighbour, Ms Briceno, gave evidence from an elevated vantage point that the victim was standing on the road rather than in the driveway. Cogswell SC DCJ preferred Ms Briceno's evidence. The neighbour's bird's-eye view was considered more reliable than the accounts of emotionally distressed and panicked relatives. This doubt about the victim's precise location meant the prosecution could not establish beyond reasonable doubt that the accused saw her and deliberately drove at her.

Statutory alternative: Recklessness established. Although intent was not proved, the court was satisfied beyond reasonable doubt that the accused was guilty of the s 35(2) offence. The accused acknowledged looking in his rear-view mirror before reversing, which demonstrated he turned his mind to the possibility of hitting someone. He knew there were two or three people in the vicinity of the driveway and he reversed at speed regardless. His ability to operate his car remotely to unlock it, and the deliberate manner in which he had driven without headlights and damaged another vehicle, showed his intoxication had not deprived him of the relevant state of mind. He proceeded recklessly, knowing that reversing at speed in those circumstances could cause grievous bodily harm to anyone he struck.

Failure to stop and assist. The accused reversed at speed, the back wheel passed almost entirely over the victim's body, and multiple people screamed at him to stop. He drove away without stopping. The court was satisfied beyond reasonable doubt of guilt on this count.

Dangerous driving (alternative count 2). Although it was not necessary to decide this count formally, the judge added that the circumstances of the driving, including the speed, the presence of people nearby, and the accused's intoxication, would in any event have satisfied the dangerous driving element beyond reasonable doubt.

Orders Made

  • The accused was convicted of causing grievous bodily harm to the victim while being reckless as to causing her grievous bodily harm (s 35(2), Crimes Act 1900).
  • The accused was convicted of driving a vehicle involved in an impact causing grievous bodily harm and failing to stop and assist (s 52AB(2), Crimes Act 1900).

Key Takeaways

  • A conviction under s 33(1)(b) of the Crimes Act 1900 requires proof of actual intent to cause grievous bodily harm; where genuine doubt exists about the accused's awareness of the victim's precise position, that intent element may not be established even in otherwise serious circumstances.
  • Under s 35(2), recklessness as to causing actual bodily harm is sufficient for a finding of guilt where grievous bodily harm results. An accused who turns their mind to the possibility of hitting someone yet proceeds regardless satisfies that test.
  • The District Court drew a clear distinction between the reliability of a calm, elevated observer and that of emotionally distressed witnesses at close range, preferring the former on the critical question of the victim's location.
  • Significant intoxication does not automatically negate recklessness or intent. The court found that the accused's purposeful conduct throughout the incident, including using a remote key, driving without lights, and damaging another vehicle, demonstrated he retained sufficient cognitive functioning to form the relevant mental state.
  • Where multiple people scream at a driver to stop following an impact and the driver accelerates away, the failing-to-stop-and-assist offence is readily established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b) (causing grievous bodily harm with intent)
- Crimes Act 1900 (NSW), s 35(2) (causing grievous bodily harm recklessly)
- Crimes Act 1900 (NSW), s 52A(3)(c) (dangerous driving occasioning grievous bodily harm)
- Crimes Act 1900 (NSW), s 52AB(2) (failing to stop and assist after impact occasioning grievous bodily harm)

Cases: No cases were cited in the judgment.