Citation: R v Elassaad (No. 1) [2024] NSWDC 181
Court: District Court of New South Wales
Date: 13 March 2024
Judge: Neilson DCJ
Background
The appellant was convicted by Magistrate Prowse in the Local Court of four offences arising from an incident on 8 January 2022, when police attended a domestic property in Bankstown following a complaint by the appellant's mother. Two constables attempted to arrest the appellant after he became hostile and aggressive. In the course of the arrest, all three people fell through a Colorbond fence into a neighbouring yard.
The four charges were: two counts of assault occasioning actual bodily harm against Constable Donkin (sequences 4 and 6), one count of assault occasioning actual bodily harm against Constable Partridge (sequence 5), and one count of resisting arrest of Constable Donkin (sequence 7). Both constables sustained injuries, and body worn camera footage captured the incident.
The appellant appealed to the District Court against all four convictions and the sentences imposed.
Legal Issues
- Whether the evidence before the Local Court was sufficient to prove each of the three assault charges beyond reasonable doubt
- Whether the Magistrate's reliance on sounds recorded on body worn camera footage, without any expert acoustic evidence, could support findings that the appellant had punched Constable Donkin
- Whether the conviction for resisting arrest (sequence 7) was established on the evidence
- Whether the sentence for sequence 7 should be disturbed, given the appellant had been held on remand between conviction and sentencing
Decision
On the three assault charges, Neilson DCJ found that the evidence was insufficient to sustain the convictions. The Magistrate had relied on what his Honour described as "acoustic evidence," namely sounds audible on the body worn camera recordings, to infer that the appellant had punched Constable Donkin during the fall through the fence. However, no expert evidence was called to interpret those sounds, and the Magistrate himself acknowledged he was not an acoustic expert.
Neilson DCJ reviewed the body worn camera footage extensively, including in slow motion. His Honour found it was "almost impossible to describe exactly what it shows" and that it was impossible to determine from the footage how the constables' injuries occurred. The acoustic observations made by the Magistrate were, in the District Court's assessment, inconsistent with the specific allegations made by the complainants about how and where they were struck.
On the resisting arrest charge (sequence 7), the District Court was satisfied the conviction was properly made out. The appellant had clearly resisted Constable Donkin's attempt to arrest him, a fact that was apparent from the footage and the surrounding circumstances. The sentence imposed for that offence, a conviction without further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999, was appropriate and was left undisturbed.
On the question of remand, the appellant's counsel argued that the period spent on bail refusal between conviction and sentencing warranted interference with the sequence 7 sentence. Neilson DCJ rejected this, finding that the appellant had already been held on remand for other matters during the same period, so the Magistrate's bail refusal caused no actual additional detriment.
Orders Made
- Convictions and sentences for sequences 4, 5, and 6 set aside
- Conviction and sentence for sequence 7 confirmed
Key Takeaways
- A Magistrate's unaided interpretation of sounds on body worn camera footage, without supporting expert acoustic evidence, may be insufficient to prove beyond reasonable doubt that a specific act of violence occurred in the manner alleged.
- Where the specific allegations made by complainants are inconsistent with the acoustic observations relied upon by the trier of fact, that inconsistency will undermine any inference drawn from the sounds.
- Body worn camera footage, even when reviewed in slow motion, does not automatically resolve questions of how injuries were caused during a chaotic physical confrontation involving multiple parties.
- A section 10A conviction under the Crimes (Sentencing Procedure) Act 1999, which records a conviction without imposing any other penalty, was confirmed as appropriate where the appellant's culpability for resisting arrest was clear but other mitigating factors were present.
- Remand time served on unrelated charges does not, in itself, give rise to a ground for disturbing a sentence on a separate offence, where the additional custody caused no actual detriment to the offender.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Cases cited:
- No cases were cited in this decision.