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District Court 22 June 2017

Omar Elbaba v Regina

[2017] NSWDC 196

Assault & violenceTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL RESIST OFFICER IN EXECUTION OF DUTY CUSTODY OF KNIFE IN PUBLIC PLACE POLICE PURSUIT FAILURE TO STOP

Citation: Omar Elbaba v Regina [2017] NSWDC 196
Court: District Court of New South Wales
Date: 22 June 2017
Judge: Judge AC Scotting

Background

The appellant was convicted in the Waverley Local Court on 26 August 2016 following an eight-day hearing before Magistrate Stapleton. The convictions arose from two separate incidents on the night of 28-29 May 2015 in Liverpool and Heckenberg in south-west Sydney.

The first incident involved a silver Nissan, registered to the appellant, being driven dangerously and then failing to stop for police during a pursuit. The central question at trial was whether the appellant was the driver. The prosecution relied on CCTV footage placing the appellant driving a similar vehicle shortly before the pursuit, while the appellant maintained his girlfriend had driven them in a different car and that someone else must have taken the Nissan.

The second incident occurred about two hours later, when police located the Nissan parked near the appellant's home and found him sitting in it. Police attempted to speak with him about the earlier pursuit. The situation escalated: the appellant was alleged to have resisted arrest, struck a constable in the face, and was found to be carrying a knife. The appellant's case was that police acted aggressively and unlawfully, and that his responses were justified.

  • Whether the magistrate erred in finding that the appellant was the driver of the Nissan during the police pursuit and dangerous driving incident
  • Whether the police officers were acting in the execution of their duty at the time of the alleged assaults and resistance, given the appellant's claims of unlawful arrest, trespass, and excessive force
  • Whether the magistrate made errors of fact or law warranting the District Court's intervention
  • Whether procedural fairness was observed in the Local Court, including the admission of evidence and conduct of cross-examination
  • Whether the appellant had a reasonable excuse for possessing a knife in a public place

Decision

Judge Scotting applied the standard appellate framework for conviction appeals under s 18(1) of the Crimes (Appeal and Review) Act 2001. The appeal proceeded as a rehearing on the certified transcripts, not as a fresh trial. The District Court was required to form its own view of the facts while recognising the magistrate's advantage in having seen and heard the witnesses. Intervention was only warranted where the magistrate's judgment was shown to be wrong, or where a miscarriage of justice was demonstrated.

On the driving offences, the court found that the CCTV footage from Bankstown Centro, together with other circumstantial evidence, was sufficient to establish beyond reasonable doubt that the appellant was the driver of the Nissan during the pursuit. The appellant's account, that his girlfriend drove them in a gold Toyota Echo, was irreconcilable with the CCTV material. The magistrate's credit findings against the appellant and his girlfriend were held to be open on the evidence and correct.

On the police offences, the court agreed with the magistrate's conclusion that the police officers were acting lawfully in the execution of their duty throughout. The appellant's claims that police trespassed onto his property or used excessive force were rejected. Medical and photographic evidence of the appellant's injuries was inconsistent with his account and consistent with the police officers' evidence. The court noted that an independent neighbour's evidence, even at its highest, was consistent with police using knee strikes to subdue a resisting person, not with the sustained beating the appellant alleged.

On the knife possession charge, the magistrate had rejected the appellant's claimed reasonable excuse, finding him a generally dishonest witness. Judge Scotting agreed, noting that this finding flowed logically from the broader credit findings already made against the appellant across all charges. Having conducted an independent review of the whole of the evidence, the court was satisfied beyond reasonable doubt that all offences had been established.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • The District Court confirmed that a conviction appeal under s 18(1) of the Crimes (Appeal and Review) Act 2001 is a rehearing on transcripts, not a de novo trial; the appellate court must form its own view while respecting the magistrate's advantage in assessing witness credibility.
  • Intervention on appeal requires the appellate judge to be satisfied that the magistrate's judgment was wrong; a miscarriage of justice may justify intervention even where no specific identifiable "error" in the strict sense is established, following AG v Director of Public Prosecutions [2015] NSWCA 218 and Dyason v Butterworth [2015] NSWCA 52.
  • A purely circumstantial prosecution case, relying on CCTV footage and other indirect evidence, can be sufficient to establish identity as a driver beyond reasonable doubt where the defendant's alternative account is irreconcilable with the objective evidence.
  • Where a defendant's evidence is found to be generally dishonest, those credit findings can lawfully inform the rejection of specific defences across multiple related charges, including a claimed reasonable excuse for knife possession.
  • The lawfulness of a police officer's conduct, including entry onto private property and the use of force during arrest, is assessed against the totality of the circumstances; force consistent with subduing an actively resisting person does not render officers to be acting outside the execution of their duty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 51B(1), 58, 60(1), 60(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 12, 17(1), 19, 99(1)(b), 202
- Road Transport Act 2013 (NSW), s 117(2)
- Summary Offences Act 1988 (NSW), s 11C

Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Dyason v Butterworth [2015] NSWCA 52
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Bandana v Director of Public Prosecutions [2016] NSWCA 140
- Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
- Perish v R (2016) 92 NSWLR 161
- R v Hart (1932) 23 Cr App R 202
- R v Nicholas (2000) 1 VR 356
- R v Foley [2000] 1 Qd R 290
- R v McDowell [1997] 1 VR 473
- Coleman v Power (2004) 220 CLR 1