Omar Elbaba v Regina

The police offences

1. At about 1.00am on 29 May 2015 Sergeant Alston, a duty shift supervisor, was patrolling in Heckenberg when he saw the Nissan parked on the street near the appellant's house. He approached the Nissan and observed the appellant and Ms Jazairy sitting in it. He activated the warning lights on his police vehicle and requested assistance from other police.
2. The prosecution case was then that the Sergeant identified himself, asked the appellant to stay in the car because other police were coming and to produce his licence because the Nissan had been involved in apolice pursuit earlier in the night. The appellant got out of the car and advanced towards Sergeant Alston. He refused the Sergeant's requests to stay in the car and told him that he would get his licence. The appellant went inside the house for a number of minutes, during which time other police arrived. When the appellant emerged from the house he did so with Ms Jazairy. She went to the Nissan to retrieve her belongings. She was told by the police that the Nissan was being seized as evidence. He was in the front yard behind a gate. The Sergeant tried to speak to the appellant but the appellant was yelling overt the top of him. Sergeant Alstom said words to the effect, "We still need to talk about the car being involved in a pursuit. I need to know who you are. Can I come and speak to you?" The appellant replied, "No, don't come in". The appellant backed away from the gate and turned colliding with a parked car in the driveway. Sergeant Alston formed the view that the appellant was going to run away and so he opened the gate and tried to grab the appellant's arm. The appellant closed the gate into Sergeant Alston. The appellant ran to the corner of the verandah before turning and facing Sergeant Alston with his fists up in a fighting stance. Sergeant Alston grabbed the appellant's right arm. Constable Fekos approached the appellant and the appellant struck him with his right fist in the temple area causing a small abrasion. Other police came in and tried to restrain the appellant who was resisting by kicking his legs and trying to break Sergeant Alston's hold on his left arm. He was taken to the ground face first on the driveway and continued to resist by moving his arms and kicking out at the police. Some of the officers from the South West Metropolitan Enforcement Squad used knee strikes to the appellant's legs to stop him kicking out at police. He continued to resist until he was handcuffed to the rear by the police.
3. The appellant's case was that he returned home in the Toyota Echo with Ms Jazairy driving at about 12.45pm. They decided to listen to music in the Nissan, because the Echo did not have the required connection to connect Ms Jazairy's mobile telephone to the sound system. The appellant's case was that Sergeant Alston did not identify himself when he first spoke to the appellant, the appellant identified himself to the Sergeant, he told the Sergeant that he lived at 64 St Johns Road Heckenberg and that he went inside to retrieve his driver's licence. The appellant's case was that Sergeant Alstom acted aggressively poking and pushing the appellant in the chest while speaking to him. When the appellant returned with his licence the police officers rushed onto the property tackling him to the ground and beating him in numerous ways for an extended period. The appellant's case was that his arrest was unlawful because Sergeant Alston did not have lawful cause for the arrest or that the force used in effecting the arrest was excessive. Further or in the alternative, the appellant's case was that the police officers were trespassing or had committed a battery thereby rendering their conduct not to be in the execution of their duty.

The relevant law

1. The applicable principles to be applied in determination of the appeal are as follows.
2. 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];
3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
5. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
6. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28].
7. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91].
8. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG at [34] per Basten JA.

Analysis of the magistrate's reasons

1. The magistrate noted that whether or not the appellant was the driver of the Nissan was the only issue in the driving offences.
2. She then analysed the CCTV footage evidence in a way that was open to her and with which I respectfully agree. She made findings based on the CCTV footage that the appellant was the driver of a vehicle consistent with the description of the Nissan departing Bankstown Centro at about 10.24pm.
3. The magistrate then referred to the expert evidence of Mr Shergold. Mr Shergold is a police officer who trained as a panel beater. He gave evidence of identification of the car depicted in the CCTV footage. The reception of Mr Shergold's evidence was objected to in the appeal but not in the Local Court. The evidence was admissible, because it was not objected to in the Local Court: Perish v R (2016) 92 NSWLR 161. I infer from reading the submissions of counsel in the Local Court (who did not appear on the appeal) that he made a forensic decision to allow the prosecution to rely on the expert evidence because it was inconsistent with the prosecution case or because it demonstrated a weakness in the circumstantial case. For my own part, the evidence was of very little weight. The magistrate relied on the expert evidence to bolster her own conclusion based on a viewing of the evidence that the car depicted in the footage was a 2 door coupe. That bolstering was unnecessary and on my viewing of the CCTV footage I would agree with that finding, even without any reference to the evidence of Mr Shergold.
4. The magistrate then considered the appellant's case on the driving offences. She rejected the appellant's version, that the Nissan had been used by someone else who he could not identify and returned. The magistrate noted that the evidence was inconsistent with that version. She decided that the fact that the Nissan was not present outside the house when the police patrolled there at about 11.10pm, a short time after the pursuit and that the appellant was in the driver's seat at the time when it was located there, supported the prosecution case.
5. The magistrate found that the evidence in the appellant's case did not give rise to a reasonable doubt about what was depicted in the CCTV footage, primarily because the footage did not show the appellant and Ms Jazairy leaving Bankstown Centro in the Toyota Echo. The magistrate then rejected their evidence on this point, finding that they had both given a "dishonest" account.
6. The magistrate stated that she was supported in her conclusion by the appellant's conduct at his house, in that the failure by him to disclose his identity and turning to run were demonstrative of a consciousness of guilt on his part relating to the driving offences.
7. The magistrate was satisfied beyond reasonable doubt that the appellant was the driver of the Nissan.
8. The magistrate then found that the section 17 LEPRA offences established because she had found that the appellant was the driver of the Nissan and he had failed to nominate himself as the driver in response to the form of demand.
9. The magistrate then turned to the police offences.
10. The magistrate accepted Sergeant Alston as an honest witness and found that the appellant and Ms Jazairy were dishonest witnesses.
11. The magistrate found on the basis of Sergeant Alston's evidence that the appellant did not disclose his identity to the Sergeant when asked to do so and that he ignored the Sergeant's request to remain in the Nissan. The magistrate found that when the appellant came back out of the house that he was shouting offensive things at the police and refusing to have a conversation with Sergeant Alston. At that time, the appellant had not disclosed his identity or produced his driver's licence. Sergeant Alston formed the view that the appellant was going to run and he reached out to grab the arm of the appellant. The appellant shut the gate on the Sergeant, thereby committing an assault. Sergeant Alston then pursued the appellant onto the property and grabbed his left arm. The appellant than punched Constable Fekos, who had entered the property to assist Sergeant Alston, thereby committing the assault occasioning actual bodily harm.
12. The appellant struggled against Sergeant Alston and kicked out at his legs, thereby committing the resist offence. Other police then came to assist with subduing the appellant. The appellant violently resisted by moving his arms and legs. The magistrate found that Sergeant Alston had no opportunity to tell the appellant that he was under arrest because he was being so violent.
13. The magistrate found that the appellant had failed to disclose his identity and that Sergeant Alston had the power to arrest him pursuant to section 99(1)(b) LEPRA as having committed an offence under section 12 LEPRA. Sergeant Alston had reasonable grounds to suspect that the appellant could assist in relation to the police pursuit offence committed earlier in the night, by reason of him occupying the driver's seat of the vehicle when it was located a number of hours later.
14. The magistrate found that Sergeant Alson's intial exercise of power was based on the appellant's failure to disclose his identity at the front gate and then on the appellant's assault of Constable Fekos. The magistrate rejected the appellant's evidence that he had disclosed his identity to Sergeant Alston whilst he was in the Nissan.
15. The magistrate found that the appellant turned to run based on Sergeant Alston's evidence, which was corroborated by the admissions made to the doctor that he "turned to run because he was scared". The magistrate rejected the appellant's evidence that he did not say those words to the doctor because the doctor was independent and had no reason to record any matter other than what was told to him by the appellant.
16. The magistrate rejected the appellant's argument that the police used excessive force in arresting the appellant, finding that they held him on the ground to subdue him and used approved knee strikes to stop him struggling.
17. The magistrate rejected the appellant's case that he was subjected to excessive force. The magistrate found that his sister's evidence was tainted by what he had told her and her participation in the interview for a television program. The magistrate did not accept the appellant's sister as a reliable witness as to her allegation that the appellant was kicked by one of the officers because no other witness referred to her as being present at the relevant time. The magistrate found that the CCTV footage of the appellant at the police station was inconsistent with his evidence as to the extent of his injuries and his mental acuity. The magistrate also found that the photos of his injuries that were tendered were not consistent with the appellant's evidence.
18. The magistrate was satisfied beyond reasonable doubt that the appellant assaulted Sergeant Aalston by closing the gate, Constable Fekos by punching him in the head causing an abrasion amounting to actual bodily harm and resisting police by struggling with and kicking out at Sergeant Alston.
19. The magistrate noted that it was common ground that a small wooden handled, serrated knife was located in the driver's side door of the Nissan. The appellant gave evidence that he used it to prepare his lunch at work. The magistrate rejected his evidence because she found that he was a dishonest witness and rejected his evidence as to the lawful excuse. She also found that it was not being used for that purpose (preparing lunch) at 1.00am.

Consideration

1. I am not satisfied that the appellant has demonstrated an error in the magistrate's reasons that cause me to be satisfied that he judgment is wrong. If I am wrong in this conclusion, having conducted an independent assessment of the evidence before the Local Court, I am satisfied beyond reasonable doubt of the appellant's guilt of the offences.

The driving offences

1. As to the driving offences, the appellant contended that the Court could not come to the finding that his and Ms Jazairy's evidence was dishonest because that was not put to either of them in cross-examination.
2. Counsel for the appellant in the Local Court objected to a question put to Ms Jazairy in cross-examination by the police prosecutor to the effect that she had made up all of her evidence because she was the appellant's girlfriend. The question was rejected by the magistrate, presumably on the basis that it was too general. The police prosecutor did not return to the topic.
3. It was not put to the appellant in cross-examination that he was giving untruthful evidence when he stated that he had been driven to Bankstown Centro in the Toyota Echo.
4. Counsel for the appellant in the Local Court did not make any relevant complaint in his submissions.
5. The failure to challenge an accused or a witness called by the accused on a relevant matter in criminal proceedings may cause an unfair trial: R v Hart (1932) 23 Cr App R 202. The remedies include the discharge of the jury or giving a curative direction: R v Nicholas (2000) 1 VR 356 at [128]-[146]. The curative direction involves the Court stating that the particular matter was not put to the relevant witness and that it should have been; the witness has been deprived of the opportunity to give his or her explanation and the court has been deprived of receiving it: R v Foley [2000] 1 Qd R 290. Caution should be exercised about giving a curative direction if the party calling the witness does not complain: R v McDowell [1997] 1 VR 473. The appropriate remedy will depend on the circumstances of the case.
6. The effect of the curative direction is for the tribunal of fact to consider whether or not the absence of the challenge gives rise to a reasonable doubt on the topic by reason of the unfairness to the accused.
7. The appellant's argument on this point should be rejected for the following reasons. First, the appellant's counsel in the Local Court objected to the question put to Ms Jazairy. That question should not have been rejected. Whilst it is unfortunate that the police prosecutor did not return to the topic it was sufficiently made clear to the witness that the entirety of her evidence was under challenge. The appellant was challenged in his evidence on the basis that what he said about his interaction with the police was grossly exaggerated and not consistent with the contemporaneous accounts he gave to a doctor at the hospital and the ambulance officers. Considering his cross-examination as a whole I am of the view that he understood that all of his evidence was being challenged. In addition he had received the police brief of evidence and the prosecution had played the CCTV footage and made submissions as to the establishment of a prima facie case on that material. I am satisfied that the appellant knew that the prosecution case was that he drove from Bankstwon Centro in the Nissan. Accordingly, he called all of the evidence available to him on this topic being the evidence of himself and Ms Jazairy. Second, no complaint was made by the appellant's counsel at trial about the lack of challenge on this issue. Third, I do not think that the case warranted the magistrate giving herself a direction. Fourth, assuming that a curative direction was appropriate and I had taken it into account when considering the evidence, I would not have a reasonable doubt about the appellant's guilt.
8. I would respectfully adopt the magistrate's reasoning as to the finding that the appellant was the driver of the Nissan. I would add the following observations which strengthen the basis for that conclusion.
9. First, whilst the CCTV footage was grainy it clearly depicts the appellant entering the driver's seat of the car fitting the description of the Nissan at Bankstown Centro. The appellant's clothing is distinctive in that footage and I was able to observe his movements by reference to his clothing.
10. Second, when the 2 door coupe left the Bankstown Centro car park it accelerated harshly and was steered to cause the back wheels of the vehicle to drift out to the left. The course of the vehicle was then corrected causing a movement commonly referred to as "fish tailing". The manner of driving was deliberate and dangerous. This evidence was admissible as context evidence. The prosecution was entitled to rely on that evidence as demonstrating that a short time before the offences that the appellant had an intention to drive in a manner that was dangerous to himself, Ms Jazairy and other road users. It could not be relied on as tendency or coincidence evidence because the prosecution had not served the required notices under the Evidence Act 1995.
11. The magistrate convicted the appellant of the section 17 LEPRA offence on the basis that having been satisfied beyond reasonable doubt that he was the driver of the Nissan when the driving offences were committed that he should have nominated himself as the driver of the Nissan. I can find no error with that reasoning.
12. I am not satisfied for the reasons given that the magistrate's judgment on the driving matters was wrong.

The police offences

1. The appellant contends on appeal that on the prosecution case that Sergeant Alston did not have the power to arrest the appellant for the failure to provide his identity because: 1. Sergeant Alston did not give evidence that he had a reasonable suspicion about the commission of the driving offences; 2. Sergeant Alston asked for the appellant's licence and not his identity; 3. Sergeant Alston did not give a proper reason for his request; 4. Sergeant Alston did not give a warning that the appellant's failure to provide his identity would constitute an offence; and 5. Sergeant Alston was not entitled to ask the appellant to produce his driver's licence because he had not provided the appellant with the information provided for by section 202 LEPRA.
2. The starting point is that the exercise of a statutory power by a police officer that involves the detention of a citizen should be exercised strictly in accordance with the terms of the power: Coleman v Power (2004) 220 CLR 1 at [118]-[120].
3. In this case I must give due weight to the magistrate's finding based on credit. The magistrate preferred the evidence of Sergeant Alston finding that he was an honest witness. She rejected the appellant's and Ms Jazairy's evidence on the basis that their evidence could not be reconciled with the CCTV footage, finding it to be dishonest. It should also be noted that a large number of police officers were called relating to their involvement in the arrest of the appellant. Each was challenged as to the veracity of their accounts. The magistrate did not expressly accept or reject their evidence. My review of their evidence is limited to the transcript. Their evidence is largely consistent with some minor inconsistencies that are to be expected in the ordinary course. On my review of the evidence, I cannot discern any good reason to reject their evidence. I think that the better view is that the magistrate at least implicitly accepted their evidence.
4. As to the appellant's first contention, counsel for the appellant in the Local Court objected to the evidence of Sergeant Alston that he had reasonable grounds to believe that the occupants of the Nissan when he approached it would be able to assist with the investigation of the police pursuit offence. His evidence was limited to what he knew about the offence and the issue of whether his grounds were reasonable was a matter left to be found by the magistrate on the basis of the inferences to be drawn from the evidence. The first contention is another example of the efforts of the appellant on appeal not to be bound by the way the case was run below and for that reason alone should be rejected. In any event what the magistrate inferred from the evidence was reasonable, open to her and correct in my view.
5. The second and fifth contention can be dealt with together. Section 19 LEPRA empowers a police officer to ask for proof of identity, if they otherwise have the power to ask for identity. The appellant's argument is that Sergeant Alston was entitled to ask for the appellant's name and residential address by reason of the definition of the term "identity" in section 3 LEPRA, but not for proof until the appellant had been asked for his identity. I see no reason from the terms of the Act as to why Sergeant Alston was required to go through a 2 stage process to seek confirmation of the appellant's identity. In my view, the Sergeant was entitled to ask for the production of the appellant's driver's licence as a stand-alone request.
6. As to the third contention, the magistrate accepted Sergeant Alston's evidence that he identified himself, was in uniform and told the appellant that the Nissan had been involved in a police pursuit earlier in the night. In my view, nothing more was required.
7. As to the fourth contention, the magistrate accepted Sergeant Alston's evidence that the appellant was unco-operative with his requests to stay in the car and to produce his licence. Sergeant Alston allowed the appellant to go into the house because he wanted to avoid a confrontation when he was alone. The magistrate found this to be reasonable. When the appellant reappeared he was yelling offensive remarks at the police and continuing not to produce his driver's licence. It follows from the magistrate's reasons that the appellant did not give Sergeant Alston the opportunity to give him a warning that the failure to produce his licence may constitute an offence. The magistrate found that the appellant could not have a conversation with Sergeant Alston when he came out of the house and did not provide his identity. The magistrate also found that the appellant turned to run and collided with a parked car in the driveway. In my view, the circumstances known to Sergeant Alston that the Nissan had been involved in a police pursuit, that the appellant had been located a number of hours later in the driver's seat of the vehicle, that the appellant failed to co-operate with Sergeant Alston and walked away from him and then returned yelling offensive remarks and then turning to run amounted to a reasonable suspicion that the appellant had been the driver of the Nissan in the driving offences and that an arrest was necessary because Sergeant Alston did not know the appellant's identity and to stop him fleeing from the police officer.
8. It follows that Sergeant Alston entered the property and grabbed the appellant to exercise a lawful power of arrest. I would respectfully agree with the magistrate on this issue. It follows that Sergeant Alston and Constable Fekos were acting in the execution of their duty at the relevant time.
9. The magistrate accepted that Sergeant Alston could not tell the appellant that he was under arrest by reason of his behaviour. That was a finding that was open to her and with which I would agree.
10. The appellant's case on the issue that the force used in effecting the arrest was unlawful was rejected on the evidence. I agree with the magistrate's reasons on this issue. In particular, the medical and photographic evidence was inconsistent with the appellant's version of events, to the extent of being irreconcilable. The finding that the appellant's evidence was grossly exaggerated was a finding open to the magistrate and one with which I agree.
11. I also agree with the magistrate's reasons for rejecting the evidence of Ms Jazairy and the appellant's sister. The evidence of the appellant's neighbour Ms Duric who was the only independent witness to the police offences did not advance the appellant's case. In evidence in chief she said she saw a police officer kick the appellant but she could not say where the kick connected with the appellant's body. In the television interview material she described the police officers as "very badly kicking him in the legs". She said she watched at the window for about 20 seconds before returning to her baby. She denied seeing the police punching him in the back or the face. Ms Duric's evidence even at its highest was in my view consistent with the evidence of the police officers that they were using knee strikes to his legs in an attempt to subdue him. Whilst the magistrate did not refer to Ms Duric's evidence in her decision, for the reasons given it was not necessary to do.
12. The magistrate rejected the appellant's evidence on the reasonable excuse for having the knife in the Nissan, stating that she had found him to be a dishonest witness. That was shorthand for her previous findings that the evidence he gave about being a passenger in the Toyota Echo was dishonest because it could not be reconciled with the CCTV footage and that she disbelieved his evidence relating to his arrest because his injuries were not consistent with his evidence and he made admissions on the night to independent persons. For the reasons I have already given I am of the view that those findings were open to her and I would respectfully agree with them.

Conclusion

1. In my view the magistrate did not make any error sufficient to cause me to doubt the correctness of her judgment. Nor has the appellant identified a miscarriage of justice that would cause me to doubt the correctness of her judgment.
2. Having conducted an independent review of the evidence, I am satisfied beyond reasonable doubt that the offences have been established.
3. The orders I make are as follows: 1. Appeal against conviction dismissed.

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