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Court of Criminal Appeal 16 September 2026

El Seidi v R

[2026] NSWCCA 143

HomicideTraffic & driving
CRIME APPEAL AGAINST CONVICTIONS UNREASONABLE VERDICT PROCEDURAL FAIRNESS AT TRIAL

Citation: El Seidi v R [2026] NSWCCA 143
Court: Court of Criminal Appeal
Date: 16 September 2026
Judge(s): Adamson JA, Lonergan J, Roberts J

Background

The applicant was convicted in a judge-alone trial in February 2024 of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, arising from a collision on Brunker Road, Yagoona, in the early hours of 1 January 2018. The applicant's Toyota struck a parked utility vehicle while carrying two passengers, one of whom died and the other of whom suffered severe and lasting injuries including a traumatic brain injury. The February 2024 trial was the applicant's third: a 2020 jury conviction had been quashed by the Court of Criminal Appeal, and a December 2022 retrial ended in a hung jury.

There was no dispute that, if the applicant was driving voluntarily and consciously, his driving was dangerous. The sole contest at trial was whether the applicant had suffered an epileptic seizure immediately prior to the collision, rendering his driving involuntary. The Crown accepted the applicant had a diagnosed history of epilepsy but argued no seizure occurred at the relevant time.

The trial judge found the prosecution had excluded the epilepsy defence hypothesis beyond reasonable doubt and entered guilty verdicts. The applicant sought leave to appeal against those convictions on three grounds: unreasonable verdict, reversal of the onus of proof, and denial of procedural fairness.

Legal Issues

  • Whether the convictions were unreasonable because, having regard to the whole of the evidence, it remained a reasonably possible explanation that the applicant's driving was caused by an epileptic seizure.
  • Whether the trial judge reversed the onus of proof by treating the absence of evidence of a characteristic "buzzing" sensation (which typically heralded the applicant's seizures) as requiring the applicant to prove he had a seizure.
  • Whether the trial judge denied the applicant procedural fairness by making findings about the significance of the absent buzzing-sound history that went beyond the Crown's case as opened and closed.
  • Whether the trial judge denied the applicant procedural fairness by finding the Toyota had swerved rightward within the kerbside lane when the Crown had opened the case on a different description of that movement.
  • Whether the trial judge was required to give a "running commentary" of her reasoning during the trial.

Decision

Ground 1 and Ground 2(i): Onus of Proof and Procedural Fairness (Buzzing Sound)

Adamson JA rejected the submission that the trial judge reversed the onus of proof. The verdict judgment expressly recorded that the Crown bore the onus of proof, that no adverse inference could be drawn from the applicant's silence, and that the defence was not required to prove the possibility of a seizure (at [137]). The trial judge was entitled to have regard to the versions the applicant gave post-collision and to assess whether those accounts were consistent with a seizure, including that he never mentioned hearing a buzzing sound before the crash and did not attribute the collision to a seizure when consulting his neurologist in 2019 (at [138]-[139]).

On procedural fairness, the Court held that the significance of the buzzing sound was adequately foreshadowed by the evidence as a whole. Both parties had relied on evidence that the applicant's seizures were stereotypical and heralded by buzzing, and this had been ventilated across three trials (at [146]-[147]). No practical injustice arose from the Crown not having specifically highlighted the buzzing evidence in its opening (at [149]). Grounds 1 and 2(i) were dismissed (at [150]).

Ground 2(ii): Procedural Fairness (Position of the Toyota in the Kerbside Lane)

The Court rejected the submission that the Crown's change in the way it described the Toyota's rightward movement (from veering into the centre lane to veering within the kerbside lane) caused the applicant practical injustice. The Toyota's position in the middle of the kerbside lane was an agreed fact, binding under s 191 of the Evidence Act, which foreclosed any challenge to it (at [151]). The trial judge's finding that the Toyota must have swerved rightward within the kerbside lane was a necessary inference from Sergeant Fenton's measurements, the road's leftward camber, and the eyewitness evidence (at [153]). Whether the swerve crossed the lane boundary or stayed within the lane was a matter of degree that made no practical difference to the expert analysis: a swerve overriding the leftward camber of the road was, in either formulation, inconsistent with a seizure and consistent with voluntary avoidance of an obstacle (at [154]).

The Court also confirmed that a trial judge in a criminal judge-alone trial is not required to provide a running commentary of reasoning during the trial, and is not obliged to forewarn a party of every possible reason for an adverse finding (at [155]). Ground 2(ii) was dismissed (at [156]).

Ground 3: Unreasonable Verdict

The Court applied the standard from M v The Queen and Dansie v The Queen: whether it was open to the tribunal of fact to be satisfied of guilt beyond reasonable doubt (at [157]). The Crown case was circumstantial, and the question was whether the hypothesis of a pre-collision seizure remained a reasonable possibility on the whole of the evidence.

The Court rejected the submission that the trial judge was required to formally adjudicate between the competing neurological experts, Professor Cook and Professor Somerville (at [168]). The expert opinions depended on assumed facts; it was for the trial judge, not the experts, to make findings of fact. Once those findings were made, the weight of the expert evidence fell to be assessed accordingly. The trial judge was not bound by the experts' probabilistic assessments (at [167]-[168]).

Examining the whole of the evidence, Adamson JA identified a combination of factors that were together sufficient to exclude the seizure hypothesis as a reasonable possibility: Ms Mardini's evidence of erratic driving before the collision (at [185]); Ms Manase's and Ms Inukihaangana's eyewitness accounts of the Toyota's speed and position; the Toyota's rightward movement within the kerbside lane immediately before impact; the pattern of damage on both vehicles; the road's leftward camber making an uncontrolled rightward swerve objectively improbable; the nature of the applicant's post-collision seizures (including left-arm posturing inconsistent with an involuntary rightward movement); and tendency evidence of the applicant's history of inappropriate speed and unsafe lane changes (at [185]). All three judges independently assessed the evidence and were satisfied the verdict was not unreasonable (at [185]-[186], [189], [190]). Ground 3 was dismissed.

Orders Made

  • Extend the time for filing the application for leave to appeal and the draft notice of appeal to 9 April 2026.
  • Grant leave to appeal.
  • Dismiss the appeal.

Key Takeaways

  • In assessing an unreasonable verdict ground in a circumstantial Crown case, the appellate court examines the totality of the evidence rather than evaluating individual strands in isolation; a seizure hypothesis that is medically "possible" is not automatically a "reasonable possibility" once all the factual findings are weighed together (at [161], [185]).

  • A trial judge in a judge-alone criminal trial is not required to provide a running commentary of reasoning as the trial proceeds, and is not obliged to forewarn parties of every conclusion that may be drawn from the evidence (at [155]).

  • Where expert opinions are based on assumed or disputed facts, the tribunal of fact is not bound by the experts' probabilistic assessments; the weight of expert evidence must be calibrated to the facts as actually found by the court, and no formal "adjudication" between competing experts is required where the resolution turns on factual findings (at [166]-[168]).

  • No reversal of the onus of proof arises merely because a trial judge, in assessing the whole of the evidence, has regard to the absence of a characteristic symptom from the accused's own post-event accounts, provided the judge correctly states that the Crown bears the onus and expressly refrains from treating silence as filling gaps in the Crown case (at [137]-[138]).

  • Procedural fairness does not require the Crown to identify in its opening every piece of evidence on which the tribunal of fact may ultimately rely; it is sufficient that the forensic significance of evidence is obvious or that its use could not reasonably take the accused by surprise, particularly where both parties have engaged with that evidence across multiple trials (at [145], [149]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 ( NSW), s 52A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 191
- Law Enforcement (Powers and Responsibilities) Act 2002 ( NSW), Pt 9

Cases
- BK v State of New South Wales [2026] NSWCA 6
- CCL Secure Pty Ltd v Berry [2019] FCAFC 81
- Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Dawson v R [2024] NSWCCA 98
- Director of Public Prosecutions v Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15
- Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
- El Seidi v R [2021] NSWCCA 303
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fuller v R [2024] NSWCCA 106
- Gardiner v R [2023] NSWCCA 89
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57; [2001] HCA 22
- Jameel v R [2026] NSWCCA 91
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; [1985] HCA 58
- Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65
- Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
- The King v AR (2026) 100 ALJR 545; [2026] HCA 10
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
- Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
- Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23