Elskaf v R

Relevant Law

1. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
2. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
3. An appeal to the District Court under s 18 requires the demonstration of factual, legal, or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
4. The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
5. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).
6. I direct myself in accordance with s 116 Evidence Act 1995 that there is a special need for caution before accepting identification evidence because it might be unreliable. In this case, the special need for caution applies to the recognition evidence of Senior Constable Smith, the voice identification evidence and the evidence relied on to identify the vehicles.
7. To the extent that the prosecution case rests on circumstantial evidence, a court cannot convict unless the prosecution has excluded all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at [46] and [50]. Where an accused with particular knowledge of the facts is silent, "hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused": Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228 per Mason CJ, Deane and Dawson JJ quoted in Baden-Clay at [50]. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: R v Hillier (2007) 228 CLR 619 at 661.
8. The Court is entitled to draw inferences from the facts proven by direct evidence, so long as those inferences are rational in the circumstances.
9. Section 98 Evidence Act 1995 provides that evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind, on the basis that having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally, unless the party seeking to rely on the evidence gives a notice and the Court is satisfied that the evidence has significant probative value. The prosecution did not rely on a notice and it was common ground that I should not engage in coincidence reasoning. No objection to the prosecution evidence on the grounds of relevance was taken in the Local Court or on appeal. In other words, all of the evidence was admitted for a relevant purpose that did not involve coincidence reasoning.

Facts

1. The following is a recitation of the facts relied on by the prosecution relating to each offence. The matters I have referred to reflect my findings of fact from the evidence unless stated otherwise.
2. The appellant holds a motor dealer's licence and works in the family business which operates a used car yard at Moorebank (the business). The business is operated by a number of companies including Best Buy Autos Prestige Pty Ltd, Best Buys Autos Moorebank Pty Ltd and Camden City Cars Pty Ltd. The business operated a website, bestbuysautosprestige.com.au (the website).
3. On 19 March 2020 the appellant was arrested at his business premises. At that time a wristwatch and a pair of sunglasses in his possession were seized. The wristwatch was diamond encrusted and had a gold and silver appearance. The face of the watch appeared to be ivory coloured at some angles and had roman numeral markings on it. The sunglasses had a black frame and black lenses and have the appearance that the frame is not delineated from the lenses. The top of the frame is a straight line. In the cross-examination of Senior Constable Smith the appellant's watch was referred to as a "Rolex" and his sunglasses as "Louis Vuitton". I infer that these descriptions were based on the appellant's instructions, that each item was relatively expensive and therefore unlikely to be commonly owned in the community.
4. On 19 March 2020 the body worn video footage of the appellant's arrest recorded his voice. His voice is distinctive in that it has a husky tone.
5. On 19 March 2020 Senior Constable Smith searched Jamal Elskaf, the appellant's nephew, at the business premises and seized his mobile telephone. It was later subjected to Cellebrite analysis and a number of photographs and videos relevant to the offence of 18 March 2020 were located.
6. I also viewed other video clips that recorded the appellant's voice. It should be noted that I was being asked to compare the appellant's voice as it was recorded in the videos depicting the offences or related to the offences and of other occasions. In other words, I had access to comparative recordings where it was accepted that the appellant was speaking. I had the opportunity to listen to all of the relevant recordings on a number of occasions to make my comparison.
7. The relevant videos also recorded the appellant's repetitive use of a number of catchphrases, including: 1. an extended "Ahh" sound; 2. an exaggerated pronunciation of the word "allegations"; and 3. "You are the [insert]", with the inserted word being taken from the previous sentence of the other person in the conversation. For example, in the second video in Exhibit 33 Jamal Elskaf says "Where's your face?" to which the appellant replies, "You are the face".
8. The prosecution contended that I could also use the catchphrases to identify the appellant as the person recorded in the videos.
9. Whilst the Instagram posts contained repeated double cherry emojis, taking into account all of the evidence, I cannot draw any relevant inference from this evidence.

Offence on 4 January 2020

1. By the abandonment of the conviction appeal for the 4 January 2020 offence, the appellant now accepts that on that day he drove a 2016 white Mercedes-Benz S63 AMG coupe registration number EBI 20U (the S63 coupe) on the M5 at a speed and in a manner dangerous to the public. It is necessary to have regard to the evidence relating to this offence because it is relevant to the other offences, for reasons which will become apparent.
2. Exhibit 3, a video posted to an Instagram account entitled "alielskaf_" and depicting a profile picture of the appellant, showed the appellant driving the S63 coupe on the M5 at Bexley on 4 January 2020. The video depicted the appellant driving the S63 coupe while accelerating between 110 and 155 km/hr. During this period of rapid acceleration, the appellant manoeuvred the S63 coupe to overtake another vehicle on the left-hand side while travelling in a breakdown bay reaching the speed of 155km/hr shortly after completing the overtaking manoeuvre. There were roadworks in progress at the location where the offence occurred and the sign posted speed limit was 80km/hr.
3. The S63 coupe had a distinctive red leather interior, console and instrument panel.
4. In Exhibit 3, the appellant was bald, in that his head was clean shaven and he had a closely cropped beard. The appellant was wearing the sunglasses and watch (on his left wrist) that were seized from him at the time of his arrest. In Exhibit 3, the lenses of the sunglasses appear to be reflective and this was consistent with Senior Constable Smith's description of them.
5. A person identified as Goran Pavlovic was the passenger in the S63 coupe being driven by the appellant. An Instagram username "nolm75_" was displayed on the video footage of the offence. That Instagram account belonged to Mr Pavlovic.
6. At the time of the offence the S63 coupe was registered to Camden City Cars Pty Ltd. The S63 coupe was advertised for sale by the business on the website. The advertisement was accessed by Senior Constable Michael Smith on 28 April 2020 and he printed a copy of it from the website.
7. I note that in the first part of Exhibit 3 where the camera was being held by Mr Pavlovic and directed at himself and the appellant, that the image was reversed, in that the driver's seat appeared to be on the left-hand side of the vehicle and the appellant was wearing his watch on his right wrist. Later parts of Exhibit 3 where it appears that Mr Pavlovic is directing the camera forwards, depict the driver's seat on the right-hand side of the vehicle and the appellant wearing his watch on his left wrist. This was a common feature of some of the videos in the evidence.
8. Exhibit 3 at about the 16 second mark depicted the time on the touch navigation screen of the S63 coupe as 4.57pm, whereas the time indicated on the appellant's watch was just before 6.00pm.

Offence on 5 January 2020

1. At about 12.40pm on 5 January 2020 the M5 was closed to traffic in both directions between Heathcote Road and Henry Lawson Drive, due to a bushfire at Voyager Point. It remained closed until about 3.25pm.
2. At 2.21pm the S63 coupe was photographed on the M5 at the Hammondville eastbound toll collection point.
3. At about 2.54pm on 5 January 2020, Senior Constable Smith viewed a video that had been posted to Mr Pavlovic's Instagram account (Exhibit 16).
4. I am satisfied beyond reasonable doubt that Exhibit 16 was taken inside the S63 coupe for the reasons that follow. The distinctive red leather interior was the same as the interior depicted in Exhibit 3, including the distinctive shaping of the rear seats that can be seen in both videos. The air vents, touch navigation screen, console and instrument panel are the same in both videos and the same as in the advertisement. Exhibit 16 shows that the vehicle is white as was the S63 coupe. The Mercedes AMG logo is clearly depicted just above the middle of the speedometer dial.
5. The S63 coupe was initially travelling in the breakdown lane passing a number of other stationary vehicles on the left-hand side. The S63 coupe then appears to manoeuvre around a utility vehicle marked "traffic control" and some traffic cones to enter the M5 motorway which appears to be closed to traffic heading towards the city. The speedometer depicted that the S63 coupe was driven at speeds of between 124 and 189 km/hr on the M5 motorway. There were no other vehicles on the same side of the motorway.
6. I am satisfied beyond reasonable doubt that the S63 coupe was being driven by the appellant for the reasons that follow. The appellant had access to the S63 coupe through the business and the opportunity to drive it. Exhibit 16 depicts glimpses of the driver that reveal that he is bald (his head is clean shaven) and he is wearing the sunglasses depicted in Exhibit 3 and seized from him when he was arrested. Exhibit 3 was uploaded to Mr Pavlovic's account, they were friends and followed each other on Instagram. Mr Pavlovic's Instagram username was depicted on Exhibit 3 for people to see. The audio on Exhibit 16 recorded the appellant's distinctive husky voice and a number of his usual catchphrases, including multiple uses of the extended "ahh" and two uses of the word "allegations".
7. I am satisfied beyond reasonable doubt that the offence occurred on 5 January 2020 for the reasons that follow. It was not contested that the M5 was closed on 5 January 2020 due to a bushfire. A plume of smoke can be seen in the distance. The S63 coupe is being driven towards the smoke. I infer that the closure of the M5 to traffic during the day is a highly unusual and rare event. The M5 was closed when the S63 coupe was driven through the eastbound toll collection point at Hammondville and that is consistent with what is depicted in Exhibit 16. During the course of the video, the appellant says the words, "state of emergency". The video post to Instagram was time stamped as 4 minutes ago and that is consistent with it being able to be viewed by Senior Constable Smith at 2.54pm on 18 March 2020. I note that the time displayed on the touch navigation screen when the offence occurred was 1.24pm. I infer that the time had not been changed for daylight saving and this is consistent with the evidence in Exhibit 3 that the clock on the S63 coupe was one hour behind the correct time.

Offence on 11 March 2020

1. On 19 March 2020, a grey Audi SQ5 registration number CW 97EE (the Audi SQ5) was parked at the front of the office at the business premises when the appellant was arrested. It was advertised for sale on the website. On 28 April 2020, Senior Constable Smith accessed the advertisement and printed a copy of it.
2. On 11 March 2020, the Audi SQ5 was photographed by Interlink Roads, the operator of the M5, travelling on the M5 at the following times and locations: 1. 8.26pm at the Hammondville eastbound toll collection point; 2. 8.46pm at the River Road eastbound toll collection point; 3. 11.10pm at the Henry Lawson Drive westbound toll collection point 23; 4. 11.11pm at the Henry Lawson Drive westbound toll collection point 22; 5. 11.19pm at the Hammondville westbound toll collection point.
3. Exhibit 33 consisted of three video clips.
4. The first video was a split screen recording of a conversation between Mr Pavlovic and the appellant that was posted to the appellant's Instagram account. The appellant was not depicted in the first video but his voice was recorded. His half of the screen depicted the steering wheel bearing an Audi logo and the instrument panel of a vehicle that was being driven at speeds of between 94 and 154 km/hr.
5. The second video commenced in a similar vein to the first, except that the appellant's vehicle appeared to be stationary. The second video was posted to the appellant's Instagram account. An SQ5 logo can be seen on the steering wheel. In the course of the conversation, the appellant asks Mr Pavlovic where he is. Mr Pavlovic replied that he was "5 minutes away" and that he had just left his girlfriend's house. I infer from this conversation, that the appellant and Mr Pavlovic had arranged to meet and that the appellant was waiting for Mr Pavlovic when he was sitting stationary in the Audi. From about the 2 minute mark of the video, it depicts a recorded conversation between the appellant and Jamal Elskaf. The appellant is clearly depicted wearing a royal blue t-shirt made of sports material and wearing his watch. The appellant can be heard using a number of his usual catchphrases. He is pictured as the only person in a vehicle with black leather interior. When he turns the camera on himself, he appears to be seated in the left front seat of the vehicle. This is another instance of the video recording the mirror image of what was actually occurring.
6. The third video appears to be in two parts. The first part was posted to Mr Pavlovic's Instagram account. It had a time, 11.11pm and the words "Good Night" superimposed on the post. It depicted the instrument panel of an Audi SQ5 vehicle being driven at speeds between 115 and 208 km/hr. The video appears to have been taken by a passenger in the front passenger seat of the Audi SQ5. The second part of the video was posted to the appellant's Instagram account. It begins with a still shot of the appellant and another male at the business premises. The next part is video footage of some food and drinks and has the words "@avocadobrighton" superimposed on it, which I infer is the Instagram username for the Avocado Fruit Lounge at Brighton-Le-Sands. The video depicts the appellant and Mr Pavlovic at a table in a café, where the appellant is using a water pipe. The appellant is wearing the same royal blue t-shirt as he was wearing in the second video of Exhibit 33 and his watch. I note that in this video that the Nike swoosh on the shirts of both men is reversed, and the appellant is wearing his watch on his right wrist indicating to me that the video is recording a mirror image of the event.
7. I am satisfied beyond reasonable doubt that the appellant was the driver of the Audi SQ5 for the following reasons. The appellant had access to the Audi SQ5 through the business and the opportunity to drive it. The appellant's watch is clearly depicted in the third video and the appellant can be heard to use the catchphrase "ahh" on a number of times. The appellant is wearing the same royal blue t-shirt in the second video and the second part of the third video that make up Exhibit 33. The appellant's voice is recorded as he is sitting in an Audi in each of the three videos. I am satisfied on the evidence that Mr Pavlovic met up with the appellant and was the passenger in the Audi SQ5 who filmed the offence (the third video in Exhibit 33) and uploaded the video to Mr Pavlovic's Instagram account.
8. I am satisfied beyond reasonable doubt that the vehicle driven in the offence was the Audi SQ5 for the following reasons. The appearance of the steering wheel and the instrument panel of the vehicle are identical in each of the three videos and the same as those pictured in the advertisement (Exhibit 30). The Audi SQ5 was photographed on the M5 which was a location where the vehicle could have been driven at the speeds that were recorded in the videos and where it was agreed that the offence took place.
9. I am satisfied beyond reasonable doubt that the offence occurred on 11 March 2020 for the following reasons. The photographic evidence demonstrated that Audi SQ5 was being driven on the M5 on that date, at the time when the offence could have been committed. One of these times precisely matched the superimposed time on the third video of 11.11pm, which I infer was a reference to when the offence was committed.

Offence on 18 March 2020

1. At about 8.49pm on 18 March 2020, Senior Constable Smith viewed a video posted to the Instagram account of Jamal Elskaf (Exhibit 25). Exhibit 25 was taken by a passenger in the front seat and it depicted a Mercedes Benz motor vehicle being driven at speeds between 170 and 211 km/hr on a motorway while it was changing lanes to pass other vehicles. The faces of the passenger and the driver of the vehicle were not shown, but the appellant's watch was clearly depicted. The driver was wearing a black t-shirt with a large white motif on the front of it and white shorts. The time that the video was taken is shown as just after 8 o'clock on the analogue clock in the centre console and as 8.04 on the touch navigation screen. I infer that was a reference to 8.04pm because it was dark at the time that the video was taken. The Mercedes Benz three point star is clearly depicted on the steering wheel and the AMG logo is clearly depicted on the centre console.
2. On 19 March 2020 a silver Mercedes Benz C63 AMG sedan registration number EEX 25A (the C63 sedan) was parked on the street outside the business premises when the appellant was arrested. The appellant had the keys to the C63 sedan in his pocket at the time he was arrested. Senior Constable Smith got access to the C63 sedan and inspected it at the time of the appellant's arrest. On the day of the offence, the C63 sedan was registered to Camden City Cars Pty Ltd. It was advertised for sale on the website. On 28 April 2020, Senior Constable Smith accessed the advertisement and printed a copy of it.
3. At 8.05pm on 18 March 2020 the C63 sedan was photographed on the M5 motorway at the Hammondville eastbound toll collection point.
4. The Cellebrite analysis of Jamal Elskaf's mobile phone located 3 video clips (Exhibit 26) that contained some of the same content as Exhibit 25. The first of those clips commenced with Jamal Elskaf taking a video of himself as the passenger in the front passenger seat of the vehicle and the appellant as the driver of the vehicle. The appellant was wearing a black t-shirt with a large white motif on the front and white shorts. He was wearing his watch which was identical to the watch worn by the driver in Exhibit 25. The time on the touch navigation screen is 8.00pm. The speedometer displayed speeds of between 194 and 201km/hr.
5. In the second video clip in Exhibit 26 the time displayed on the touch navigation screen is 8.02pm. The speedometer displays speeds of between 177 and 199km/hr, at which time the appellant is changing lanes to pass other vehicles.
6. In the third video clip in Exhibit 26 the time displayed on the touch navigation screen is 8.04pm. The speedometer displayed speeds of between 170 and 211km/hr, at which time the appellant is changing lanes to pass other vehicles.
7. The photographs located in the analysis of Jamal Elskaf's mobile telephone, included the following: 1. a view of the front passenger side of the C63 sedan that appeared at the start of Exhibit 25. Senior Constable Smith gave evidence, which was not challenged, that the photograph was taken outside of Jamal Elskaf's residence; 2. a front-on view of the C63 sedan including the number plate; and 3. three photographs that appeared to have been taken from the videos that made up Exhibit 26 or at least at the same time.
8. I am satisfied beyond reasonable doubt that the appellant was the driver of the C63 sedan for the following reasons. The appellant's watch is clearly depicted in each of the videos in Exhibits 25 and 26. The first video of Exhibit 26 clearly depicts the appellant and Jamal Elskaf and there is no doubt as to their identification. I find that Exhibit 25 was created from the third video in Exhibit 26 and that the first and second videos were taken immediately before the third video. The clothing being worn by the driver in Exhibit 25 matches the clothing worn by the appellant in Exhibit 26.
9. I am satisfied beyond reasonable doubt that the vehicle driven in the offence was the C63 sedan for the following reasons. The appearance of the steering wheel and the instrument panel of the vehicle are identical in each of the four videos, the same as those pictured in the advertisement (Exhibit 23) and the same as those depicted in the body worn video footage taken at the time of the appellant's arrest on 19 March 2020. The C63 sedan was photographed on the M5 which was a location where the vehicle could have been driven at the speeds that were recorded in the videos and where it was agreed that the offence took place. The photographs on Jamal Elskaf's mobile telephone included a front-on view of the C63 sedan showing the numberplate. The appellant had access to the vehicle and the keys to it were in his pocket at the time that he was arrested.
10. I am satisfied beyond reasonable doubt that the offence occurred on 18 March 2020 for the following reasons. The photographic evidence demonstrated that C63 sedan was being driven on the M5 on the date and at the time of the alleged offence. The time at which the C63 sedan was photographed was consistent with the time that the offence was committed. The video posted to Jamal Elskaf's Instagram account had a time stamp that it had been taken between 37 minutes and 1 hour in the past and that is consistent with the fact that the post could be accessed by Senior Constable Smith at about 8.49pm on 18 March 2020 and that the offence was committed at about 8.00pm on 18 March 2020.

Conclusion

1. Having regard to the whole of the evidence, I am not satisfied that there is a reasonable explanation of the facts consistent with the appellant's innocence. I am satisfied beyond reasonable doubt that the prosecution has proved that the appellant committed each of the offences.

Orders

1. The orders I make are as follows: 1. Appeal dismissed. 2. I will hear the parties on the severity appeal.

Amendments 02 November 2022 - Appeal details added to cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2022