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District Court 2 November 2022

Elskaf v R

[2022] NSWDC 525

Traffic & driving
EVIDENCE IDENTIFICATION EVIDENCE WARNINGS INFERENCES CIRCUMSTANTIAL EVIDENCE TRAFFIC LAW AND TRANSPORT

Citation: Elskaf v R [2022] NSWDC 525
Court: District Court of New South Wales
Date: 2 November 2022
Judge(s): Scotting DCJ

Background

The appellant was convicted in the Local Court of four counts of driving recklessly or in a manner dangerous to the public, contrary to s 117(2) of the Road Transport Act 2013. The alleged offences occurred on 4 January, 5 January, 11 March, and 18 March 2020, each on the M5 motorway in Sydney. For each offence, the prosecution relied on video footage taken by a passenger that depicted the vehicle being driven at extreme speeds and in a dangerous manner.

The central dispute in the Local Court, and on appeal, was not whether the offences had been committed but whether the prosecution could sufficiently identify the appellant as the driver in each instance. The prosecution built its identification case from a combination of video content, a distinctive diamond-encrusted wristwatch and sunglasses, the appellant's husky voice, repeated catchphrases, and social media posts connected to the appellant and his associates.

On appeal to the District Court, the conviction appeal for the 4 January 2020 offence was abandoned. The appellant therefore accepted he drove the S63 coupe on the M5 dangerously on that date. The remaining conviction appeals concerned the offences of 5 January, 11 March, and 18 March 2020.

Legal Issues

  • Whether the prosecution established the identity of the appellant as the driver of each vehicle on each date, to the standard of beyond reasonable doubt
  • Whether the circumstantial evidence, taken as a whole, excluded all reasonable hypotheses consistent with innocence
  • Whether the special caution required under s 116 of the Evidence Act 1995 for identification evidence was satisfied before relying on recognition evidence, voice identification, and vehicle identification
  • Whether the Local Court's findings of guilt were correct on an independent review of the evidence under s 18 of the Crimes (Appeal and Review) Act 2001

Decision

Applicable standard and approach: The District Court conducted a rehearing on the transcripts and exhibits from the Local Court under s 18 of the Crimes (Appeal and Review) Act 2001. The appellant was required to demonstrate factual, legal, or discretionary error, but the prosecution at all times bore the onus of proving guilt beyond reasonable doubt (at [11]-[12]). The court applied s 116 of the Evidence Act 1995, directing itself to exercise special caution before accepting the recognition evidence, voice identification evidence, and vehicle identification evidence (at [14]). On the circumstantial case, the court applied the principle that all circumstances must be weighed to determine whether any inference consistent with innocence remained reasonably open (at [15]).

5 January 2020 offence (S63 coupe): The court was satisfied beyond reasonable doubt that the video depicting the offence (Exhibit 16) was filmed inside the S63 coupe, based on the distinctive red leather interior and matching vehicle features (at [38]). The appellant's access to the vehicle, his distinctive appearance as bald and wearing the seized sunglasses, his husky voice, and repeated use of catchphrases recorded in the video established his identity as the driver (at [40]). The date was confirmed by the contemporaneous M5 closure due to a bushfire, visible smoke in the footage, the appellant's utterance of "state of emergency," and consistent toll-point photographs and Instagram time stamps (at [41]).

11 March 2020 offence (Audi SQ5): Three video clips established a connected sequence. The court was satisfied the appellant was the driver based on his access to the Audi SQ5 through his business, his clearly depicted watch and catchphrases, his distinctive voice recorded across all three videos, and the inference that his associate Mr Pavlovic was the passenger who filmed the offence (at [48]). The Audi SQ5 was identified as the vehicle by matching steering wheel and instrument panel features across the videos and the business's own advertisement. Photographic evidence placed the Audi SQ5 on the M5 on the relevant date, with one toll-point timestamp precisely matching the superimposed time of 11.11pm on the video (at [50]).

18 March 2020 offence (C63 sedan): Video extracted from the mobile phone of the appellant's nephew, Jamal Elskaf, clearly depicted the appellant as the driver of a vehicle travelling at speeds between 170 and 211 km/hr on the M5 (at [54]-[56]). The appellant's distinctive watch, his clothing, and his direct identification in one clip established his identity beyond reasonable doubt (at [58]). The vehicle was confirmed as the C63 sedan through matching instrument panel features and a photograph of the numberplate found on Jamal Elskaf's phone. The timing of toll-point photographs and Instagram post time stamps was consistent with the offence having occurred at around 8.00pm on 18 March 2020 (at [59]-[60]).

Overall conclusion: Having regard to the whole of the evidence, the court found no reasonable explanation of the facts consistent with the appellant's innocence and was satisfied beyond reasonable doubt that the prosecution proved each of the remaining offences (at [61]).

Orders Made

  • Appeal dismissed
  • Severity appeal in relation to the 4 January 2020 offence to be heard separately

Key Takeaways

  • In dismissing the appeal, the District Court confirmed that identification in dangerous driving prosecutions can rest on a combination of circumstantial evidence, including distinctive items of personal property, voice recognition, catchphrases, and social media activity, where that evidence is assessed as a whole rather than in isolation (at [40], [48], [58]).
  • A conviction appeal under s 18 of the Crimes (Appeal and Review) Act 2001 requires demonstration of factual, legal, or discretionary error, but this requirement does not shift the burden of proof: the prosecution must still establish guilt beyond reasonable doubt throughout (at [11]-[12]).
  • Under s 116 of the Evidence Act 1995, special caution must be exercised before accepting recognition evidence, voice identification evidence, and vehicle identification evidence; in this case, the court was satisfied that standard was met through the cumulative weight of multiple independent identifying features (at [14]).
  • Where an accused possesses particular knowledge of the relevant facts but remains silent, hypotheses consistent with innocence may cease to be rational or reasonable if the evidence supporting those hypotheses, if it exists at all, must be within the accused's knowledge (at [15]).
  • Circumstantial evidence anchoring an offence to a specific date, such as a road closure caused by a major fire, consistent toll-point records, and corroborating time stamps across multiple exhibits, can satisfy the court beyond reasonable doubt as to the date of the offence even without a direct witness to that date (at [41], [50], [60]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001
- Evidence Act 1995
- Road Transport Act 2013

Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- R v Hillier (2007) 228 CLR 619
- The Queen v Baden-Clay (2016) 258 CLR 308
- Weissensteiner v The Queen (1993) 178 CLR 217