HIS HONOUR: This is an application that I state a case pursuant to section 5B of the Criminal Appeal Act 1912 to the Court of Criminal Appeal. The matter came before me on 12 March 2024 with three other appeals from the Local Court. As the current matter was the longest of the four, I dealt with the other three matters prior to commencing the hearing of the current matter.
The current matter was an appeal under section 11 of the Crimes (Appeal and Review) Act 2001. The appeal was an appeal as to conviction and sentence. The appellant was represented at the hearing of the appeal by Mr J Galluzzo, of counsel. However, his solicitor, Mr George Elias, of Elias Gates, was not present in Court to instruct Mr Galluzzo. However, I have no recollection as to whether some other solicitor was present to instruct Mr Galluzzo.
The appellant was appealing four convictions recorded by Magistrate Prowse. The hearing of the proceedings in the Local Court commenced before his Honour at Bankstown on 3 March 2023. His Honour gave judgment on conviction on that day. The proceedings then continued before his Honour at Sutherland on 1 and 4 May 2023, and were completed before his Honour on 8 May 2023 at Armidale.
The relevant offences charged were: assault occasioning actual bodily harm on Constable Donkin, at Greenacre, on 8 January 2022 (sequence 4); assault occasioning actual bodily harm on Constable Partridge on 8 January 2022 at Greenacre (sequence 5); a further charge of assault occasioning actual bodily harm to Constable Donkin at Greenacre, on 8 January 2022 (sequence 6); and resisting Constable Donkin, a member of the police force, in the execution of his duty (sequence 7). The three assaults alleged were also alleged to be against the constable when the constable was in the execution of his or her duty.
The hearing before me on 12 March 2024 continued on 13 March 2024 when, after hearing from both the appellant by his counsel and the Crown, I set aside the convictions recorded and sentences passed for each of sequences 4, 5, and 6, and confirmed the conviction and sentence for the sequence 7 offence.
The penalty imposed for the sequence 7 offence of resisting Constable Donkin in the execution of his duty was merely a conviction pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999. On Thursday 28 March 2024 (Maundy Thursday), I was sitting in Newcastle hearing civil cases when my Associate conveyed to me a copy of an email which had been sent to the registry in the Downing Centre, that email having been sent by the appellant's solicitors. That letter is Exhibit A-1. The letter is to this effect:
"We write to you on behalf of our client, Mr Mohamad Elassaad whose appeal was just before you at the District Court of New South Wales on 12 March 2024.
We confirm the purpose of this correspondence is to apply to the District Court to state a case to the Criminal Court of Appeal pursuant to section 5B of the Criminal Appeal Act 1912.
Questions of law
1. Whether the stated facts constitute a lawful arrest under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002.
2. Whether the stated facts constitute a lawful arrest under section 202(1)(c) and 202(2) of the Law Enforcement (Powers and Responsibilities) Act 2002.
3. Whether the stated facts support a finding of guilt for an offence contrary to section 546C of the Crimes Act 1900, in particular was the evidence capable of proving beyond reasonable doubt that the conduct of Mohamad Elassaad constitute resisting or hindering a police officer in the execution of his duties, when such duties are unlawful.
Stated Facts
To assist in facilitating the stated facts, I note a copy of a District Court transcript has been ordered. However, intermittently, we propose the below facts and welcome feedback and proposed amendments from your Honour, the prosecution, and the officer in charge, who are copied into this correspondence."
The letter goes on to set out ten propositions which I assume are supposed to represent the appellant's solicitor's view of what the relevant facts are. On the 18 March 2024, I finished delivering my final judgment in Newcastle at about 4.15pm. I was able to leave that city at about 5pm and did not reach my home in Sydney until 7.30pm. Then followed the four days of the Easter public holiday. Then followed the two days of the District Court's annual conference.
On Thursday 4 April 2024, I was hearing an appeal under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. I commenced giving judgment on that day but adjourned the continuation of that judgment till Friday 5 April. On Friday 5 April, there was a blackout in the John Maddison Tower, where my chambers are and where my usual court is. As I was supposed to be sitting in a civil jurisdiction of the Court, I could not sit and the chief judge directed all judges in the civil matters to adjourn them to some other date, and to "go home" which I did.
On Monday, correspondence, which I have marked as exhibits, was exchanged, and I arranged for the matter to be listed eventually for hearing today, at noon, because the time within which a case must be stated expires tomorrow.
As was pointed out, I have no recollection of the matters now sought to be the subject of the stated case being raised before me on 12 and 13 March 2024. Unfortunately, no transcript of the proceedings on those days is available. As is the normal case in my chambers, the judgment which I delivered on 13 March 2024 was requested, but it has not been transcribed or forwarded to me for correction. It is, therefore, not available even in draft form.
Madam Crown this afternoon referred me to paragraph 31 of Mr Galluzzo's written submissions which were marked for identification 1 at the hearing of the appeal. That paragraph is this:
"It is submitted that at the time the officers commenced to put the appellant up against the wall and what flowed from that point they were not acting in the execution of their duty but were overzealous in their dealing with the appellant."
According to Madam Crown's note, a submission was put to me by Mr Galluzzo that there was a prima facie case of resisting arrest. But, again, that must be seen on a basis that as far as the appellant was concerned, the police were overzealous.
However, I was not taken to the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA"), nor was I taken to section 99 of that statute, nor was I taken to the line of authority based upon Christie v Leachinsky [1947] AC 573 and the cases which followed it that can be found in the note [21-s99.15] in Criminal Practice and Procedure NSW, a service provided to all judges of this Court. Nor was I taken to section 202 at any time of that Statute by Mr Galluzzo. It was not submitted that the appellant was not entitled to be arrested because of the allegation that he had committed damage to the property belonging to his neighbours, namely his parents.
It was common ground that Constable Donkin and his partner, Constable Partridge, had attended an address in Northcote Road, Greenacre, in answer to a call made by the occupiers of that property to the police. The male occupier of that property was Mr Mahmoud Elassaad, the father of the appellant, and Mrs Fayza Elassaad, the mother of the appellant. A complaint was made about damage to their property.
At page 40 of the transcript of 3 March 2023, the learned magistrate said this in his reasons for decision:
"Given what the two police officers had (a) seen; (b) received complaints of; and (c) was confirmed by what they had seen, ie, a variety of property being damaged, a given fact that it was clearly in a domestic violence context, there was no prospect whatsoever that anything other than arrest would have been effected at some point in time, given the allegations that [were] being made, which appeared to be (a) verified; and (b) credible at first blush."
Those are the grounds which the learned magistrate held entitled the police to effect an arrest of Mr Elassaad, the appellant. That was never challenged before me. Mr Elassaad, after police had been talking with his parents, walked down the driveway at the side of his parents' property and then entered into conversation with the police.
On this application, Exhibit A-6 is a submission made by Mr Kiki Kyriacou, a solicitor acting for Mr Elassaad, dated 6 March 2022. That submission was made to the Supreme Court, I am told, on a bail application. That criticises to some extent the distinction between what Constable Donkin and Constable Partridge had stated in their statements, compared with what can been seen on the body‑worn cameras of Constable Donkin and Constable Partridge.
To refresh my memory, I had replayed this afternoon the first part of the body‑worn camera footage of Constable Donkin which was an exhibit in the appeal. It certainly shows the appellant arriving at his parents' premises at the rear, having walked down a driveway, and then commencing interaction with Constable Donkin.
However, it is clear to me that the discussion between the appellant and Constable Donkin increased in volume, increased in pitch and tone. The appellant then started gesticulating and made a movement which could be rationally interpreted as being aggressive. It is then the Constable Donkin moved towards the appellant in order to seek to effect an arrest without his announcing that that was what he was going to do. But in the circumstances, there were only moments in the making of the gesticulation, which could be accepted as being aggressive, and the interaction which quickly followed thereafter when one views the body‑worn camera. Constable Partridge came to assist Constable Donkin in the arrest of the appellant. Everything happened quickly.
The appellant moved backwards, his back was pressed against the fence, a wall of a Colorbond sheets, which appears to have been flimsily put together, and the three actors then fell through the fence, with the appellant with his back falling on the ground, and with the front of each of the constables being on either side of the appellant's body, Constable Partridge on the right of the appellant, and Constable Donkin on his left.
There was a struggle of the three on the ground as the police constables tried to affix handcuffs. Initially, Constable Partridge sought to use her handcuff, but one of them was locked, and then Constable Donkin had to use his handcuffs to restrain the appellant, and Constable Partridge had to remove the one handcuffs, which had been placed upon one of the appellant's arms, so that she could retrieve her set of handcuffs.
However, there was no argument put to me that the constables were not entitled to arrest the appellant because he was not guilty of damaging his parents' property, as had been found by the learned magistrate.
The major argument put to me was whether the three assaults alleged could have occurred as found by the magistrate, and I was not persuaded beyond reasonable doubt that what the magistrate found could have so found and, therefore, acquitted the appellant of those three charges of assault occasioning actual bodily harm.
In essence, I am being asked belatedly to state a case on a ground that was never properly argued before me. Indeed, as far as I can recollect, it was not argued at all. I have carefully read the decisions of the Court of Appeal in each of Elias v DPP (NSW) [2012] NSWCA 302 and Forrest v DPP (NSW) [2020] NSWCA 162.
In Forrest, the leading judgment was given by Basten JA, with whom McCallum JA (as she then was) and Leeming JA concurred. After setting out principles derived from a consideration of the legislative history of section 5B of the Criminal Appeal Act 1912 and the case law, his Honour said this:
"56. As the brief chronology noted above discloses, on 31 July 2019 the District Court judge heard the applicant's appeal from his conviction in the Local Court. The defendant did not give evidence in the Local Court, nor in the District Court. Indeed, he appears not to have attended the hearing in the District Court. He did not attend for the delivery of judgment either.
57. The request to state a case incorrectly asserted that 'any application for a stated case is required to be made within 28 days of judgment or such further time as the Court of Criminal Appeal may allow'. Rather, section 5B required the questions of law were to be submitted to the Court of Criminal Appeal within 28 days of the judgment, or such further time as the Court of Criminal Appeal may allow.
58. There is an implied requirement that any request be made, with the draft stated case and containing the relevant questions, in sufficient time to allow the judge, if so minded, to submit the questions within the prescribed period: the timing of the request did not comply with that requirement."
His Honour then set out the questions of law requested of O'Rourke SC DCJ and continued thus:
"59. It would have been open to the judge to decline to submit questions in that form. As the Courts have observed on more than one occasion, the formula 'Did I err in determining' or 'Did I err in holding that' is generally inapt to identify a question of law. The applicant sought to reformulate the questions in this Court. Neither reformulation clearly identified a question of law, but the exercise was in any event futile; the repository of the power to submit a question of law is with the District Court, not this Court.
The judge did not commit a jurisdictional error in failing to submit a question not before her. No doubt, she had power to identify a question of her own motion, but no obligation to do so. (That power may have been spent once final orders were made)."
If the last observation made by his Honour be correct, then I have no power to grant the relief sought. In any event, I find it completely inappropriate that I be asked to state a case on a matter which was not clearly and squarely before me, a matter that in essence, as my recollection is, that was not addressed by learned counsel before me at the hearing of the appeal. I should point out that today, Mr Elassaad appears in person and that neither his counsel nor his solicitor is here today, nor any other person representing him.
In Elias v DPP, Basten JA, with whom Beazley JA (as Her Excellency then was) agreed, pointed to delay. His Honour said this:
"10. There was a further factor which appears to have played a lesser role in the consideration in the District Court than it should have. His Honour referred in his judgment dismissing the application to the fact that there had been 'a delay in proceeding with this stated case' but said that the delay itself 'would not be favourable if all other things do not stand in the way': judgment, page 5. There is, however, much to be said for the view that the delay should of itself have been fatal.
11. The appeal from the Local Court was dealt with by Lakatos DCJ on 18 May 2011, by way of an oral judgment. The first application for a stated case under section 5B of the Criminal Appeal Act was not made until 22 June 2011, and then on an erroneous assumption that the question would be submitted to this Court [Court of Appeal] rather than the Court of Criminal Appeal, suggesting a question which was not a question of law and without a statement of the case.
The director responded the following day identifying some of the inadequacies. Nothing was then done until 17 November 2011, when the applicant wrote to the director in closing a draft stated case and advising that it would be submitted to the District Court in seven days; as it was on 25 November 2011. Then was then a hearing in the District Court on 17 February 2012.
12. Such a lackadaisical approach on the part of the applicant, and the manner in which it was dealt with in the District Court, were inconsistent with the terms of section 5B of the Criminal Appeal Act.
13. The Criminal Appeal Act used to provide that any question of law be submitted before the proceedings were disposed of. That constraint has now been removed, but it nevertheless states that the question of law 'must be submitted not later than 28 days after the end of the appeal proceedings, or such longer period as the Court of Criminal Appeal may allow: section 5B(2). It requires little imagination to appreciate that such a vigorous timetable demands that the proposed stated case be provided to the District Court judge within days of the judgment and there is no time for a hearing and directions."
Here, the delay has been, of course, been compounded by the four day Easter long weekend, and by the District Court's annual conference, and, unfortunately, by climactic conditions. But if the matter had been raised on the appeal, things would have been much easier if the application had been made properly. There would have been time to try to obtain an expedited transcript and more time would have been available to me to try to deal with this application.
However, bearing in mind in my view that the substance of the matter was never before me, and bearing in mind the delay, the application to state a case is refused.
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Decision last updated: 20 May 2024