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District Court 15 November 2022

R v El-Kahil (No. 1)

[2022] NSWDC 606

Assault & violencePublic order & justice offences

Citation: R v El-Kahil (No. 1) [2022] NSWDC 606
Court: District Court of New South Wales
Date: 15 November 2022
Judge(s): Bennett SC DCJ

Background

The accused faced four counts under s 60 of the Crimes Act 1900 arising from an incident on 20 November 2020 in Surry Hills. The charges alleged assault on two police constables in the execution of their duty, causing grievous bodily harm to a third officer while reckless as to actual bodily harm, and, in the alternative to that third count, assault occasioning actual bodily harm on the same officer.

The incident began when a motorcycle officer noticed a vehicle tyre with insufficient tread and pulled the accused over. Events escalated after the officer observed the accused apparently consuming a substance before a roadside drug test could be administered. This led to a search of the accused and his vehicle, and ultimately to a violent physical confrontation with police.

Before jury selection, the accused brought a pre-trial application seeking exclusion of the police evidence. The voir dire (a preliminary hearing conducted before a judge without the jury to resolve questions of law) was conducted over several days in July 2022, with final submissions heard in November 2022.

  • Whether evidence gathered by police following the initial traffic stop should be excluded under s 138 of the Evidence Act 1995 on the basis that it was obtained improperly or in contravention of Australian law.
  • Whether the police conduct was unlawful from the outset of the interaction, such that all subsequent evidence was tainted.
  • Whether, as a preliminary matter, a Basha hearing (examination of Crown witnesses before jury empanelment) was appropriate to expose the basis of the accused's argument and to inform any potential defence of self-defence or lawful resistance.
  • Whether the police had lawful authority to conduct both the initial search and the subsequent strip search of the accused, noting that the legislative powers governing each differ.

Decision

Bennett SC DCJ accepted that a Basha hearing was warranted in this case, notwithstanding the Crown's opposition. The court took the view that, given the nature of the arrest and the alleged discovery of prohibited drugs, the accused's argument that police conduct was unlawful throughout warranted pre-empanelment examination of the evidence. That evidence was also relevant to whether the accused may have believed he was acting defensively during the physical confrontation.

The core argument advanced for the accused was that police conduct was unlawful from the moment of the initial stop, rendering all evidence gathered thereafter liable to exclusion. His Honour carefully distinguished between two phases of police conduct: the initial vehicle stop and search on one hand, and the subsequent strip search on the other. These involved different legislative powers and had to be assessed separately.

His Honour was not persuaded that the evidence should be excluded as the result of impropriety or contravention of Australian law under s 138(1) of the Evidence Act 1995. He further found that, even if that conclusion were in error, he would exercise the discretion under s 138(2) in favour of admitting the evidence. That provision requires a court to weigh whether admission of improperly obtained evidence is more desirable than exclusion, having regard to factors such as the probative value of the evidence and the gravity of the impropriety. His Honour found the balance favoured admission.

The court also noted, in the course of the reasons, that it had initially misunderstood part of the accused's argument by conflating the initial search with the later strip search. Upon clarification, the distinction between those phases was treated as legally significant, given that different statutory powers applied to each.

Orders Made

  • The application to exclude evidence from police witnesses describing events up to and including the struggle in which the alleged assaults on Counts One, Two, and Three (Count Four in the alternative) were committed was refused.
  • To the extent the application extended to police evidence describing the accused's conduct relied upon by the Crown to prove the assaults charged, that application was also refused.

Key Takeaways

  • The District Court confirmed that a Basha hearing remains available after the legislative reforms to the committal process: where features of an arrest or pre-trial conduct are sufficiently complex, a trial judge may permit examination of Crown witnesses before jury empanelment.
  • Under s 138 of the Evidence Act 1995, a two-stage analysis applies: first, whether evidence was obtained improperly or in contravention of Australian law; and second, if so, whether the discretion should nonetheless be exercised in favour of admission by weighing desirability of admission against the seriousness of the impropriety.
  • A finding that no impropriety occurred does not prevent a court from proceeding to consider the s 138(2) discretion as an alternative, providing a complete basis for the ruling in case the primary conclusion is later found to be in error.
  • The court treated the initial vehicle and roadside search as legally distinct from the later strip search, given that different statutory powers governed each phase of the police interaction.
  • No single officer's decision-making was found to be determinative: the court held it was not significant whether two constables reached the same conclusion about the strip search jointly or independently.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 60(1), (2), (3)
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Road Transport Act 2013 (NSW)
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)
- Criminal Assets Recovery Act 1990 (NSW)
- Crimes Act 1914 (Cth)
- Drug Misuse and Trafficking Regulation 2021 (NSW)
- Police Powers (Vehicles) Act 1998 (NSW)

Key Cases:
- R v Basha (1989) 39 A Crim R 337
- R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
- Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
- Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
- Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701
- Hyder v Commonwealth of Australia [2012] NSWCA 336
- International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
- Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
- R v Buddee [2016] NSWDC 422
- Winikerei v R [2022] NSWDC 250
- R v Elliot (No. 1) [2022] NSWDC 327