El-Saeidy v The Queen (No 1)

[2019] NSWDC 266

District Court

New South Wales

Medium Neutral Citation:

El-Saeidy v R (No 1) [2019] NSWDC 266

Hearing dates:

23 November 2018, 01 March 2019, 15 March 2019, 18 April 2019, 30 May 2019, 10, 11, 12 & 16 July 2019

Date of orders:

16 July 2019

Decision date:

16 July 2019

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

The appellant’s application that Bennett SC DCJ disqualify himself from hearing the matter is refused

Catchwords:

COURTS AND JUDGES — Bias — Application for recusal

COURTS AND JUDGES — Bias — Apprehended bias

COURTS AND JUDGES — Bias — Disqualification

Category:

Principal judgment

Parties:

Fawzi El-Saeidy (Appellant)
Regina (Respondent)

Representation:

Fawzi El-Saeidy (self-represented)
Emma Blizard (Crown Prosecutor and counsel for the Respondent)

Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2016/00178780, 2016/00205238 & 2016/00323816

REVISED EX TEMPORE JudgEment

1. Fawzi El-Saeidy is the appellant in proceedings brought from convictions and orders in the nature of apprehended domestic violence orders made for the protection of his wife and children, in various Local Courts in New South Wales.

2. There are four file references to which I should refer. They are 2016/178780, 2016/205238, 2016/323816 and 2017/277772. The most recent of those was the subject of an application by the appellant on the last occasion the matter was before this Court for leave to withdraw the appeal. The Crown did not oppose that course. Leave was granted, leaving the magistrate’s orders to stand.

3. The application for leave to withdraw the appeal, as I understood it, was based upon the expiration of the orders that had been made by the magistrate in those proceedings and there was accordingly, in the perception of the appellant, no utility in continuing with the appeal.

4. The matter has been before my Court on a multitude of occasions. This is not intended to be an exhaustive list, but, according to the file that I have, reference 2016/178780 which will resonate with what is contained in the other current files, the matter was before Registrars in the District Court of New South Wales at Parramatta in April 2018 and June 2018.

5. Ultimately the matter came before me on 23 November 2018, when the Crown was represented by a Director of Public Prosecutions solicitor Mr Kiru. The appellant has, for the most part, appeared self-represented, except in more recent times when, for limited purposes Mr Livers, solicitor has appeared for him.

6. On 23 November 2018 the proceedings were adjourned to 7 December 2018 for mention to allow the Crown time to view material produced on subpoena. I granted the parties access to documents produced by the Benevolence Society in Liverpool; there were a number of packets. Material was produced by the Family and Community Services; there were two packets. The documents were to be examined in the court registry area and not to be removed from the Court and be returned to the registry when no longer required.

7. On 7 December 2018 I granted the appellant leave to file a notice of motion and affidavit in court. The registry was asked to arrange for a transcript of the proceedings on that day. The matter was adjourned to 31 January 2019 for mention to confirm transcript availability. The matter was also listed for 1 March 2019 for hearing part heard before me with a one day estimate.

8. On 31 January 2019 transcripts were prepared and available. The Crown bundle and material it intended to rely upon was to be filed and served before the hearing date. Any notice of motion and any material in support were to be filed by the appellant by 15 February 2019 and the hearing date of 1 March 2019 was set. The registry was again ordered to arrange for a transcript of that day’s proceedings.

9. On 14 February 2019, by consent, I extended the appellant’s time for filing an amended notice of motion and affidavit to 22 February 2019.

10. On 15 February 2019 documents were produced by Liverpool Area Primary Community Health but access was not granted to the appellant. Access was granted to the Crown to determine whether the complainant in the matter should be given the opportunity to be heard.

11. Access to documents from Western Union and Ms El Shinawy, the appellant’s former wife, was granted to the parties. The matter was adjourned for mention on 22 February 2019.

12. 1 March 2019 is the next file note. Mr Gray appeared for the Commissioner of Police in response to a subpoena. The appellant sought to have Mr Kiru remove himself from the matter and wanted more time to put on a notice of motion and supporting affidavit. The matter could not proceed that day for that reason. Material in support of that was to be filed and served by 6 March 2019. The matter was adjourned to 15 March 2019 for hearing with a one day estimate.

13. Mr Livers was given the Crown bundle in the Court by the Crown. The registry was to order a transcript of the proceedings that day and from each occasion before then when the matter was before me. I indicated I would go through the subpoenaed material and identify what does not have any claim attached to it and make orders in chambers for access.

14. On 15 March 2019 Mr Livers appeared on behalf of the appellant. He was to file an affidavit and notice of motion by 20 March 2019. Mr Graham appeared for the Commissioner of Police in response to the subpoena. The matter was adjourned to 20 March 2019 for mention.

15. It was noted that Mr Livers asked whether material had been produced by the Green Valley Liverpool Domestic Violence Centre, stating that the registry had represented to him that it had been. It was noted that the documents he sought had actually been produced by Liverpool Primary and Community Health. Access had previously been granted to the Crown only. The Crown was to determine whether the complainant in the matter should be given the opportunity to be heard on access being granted to the appellant.

16. I should note that from that date on Ms Emma Blizard Crown Prosecutor has appeared for the Crown in place of Mr Kiru. There had in the interim been an application made by the appellant to have Mr Kiru remove himself from the proceedings because of some alleged misconduct. In response to that allegation I recall that I made comment expressing surprise that such an allegation could be made against Mr Kiru, a solicitor with whom I have had a great deal of experience over my career, including as a judge of this Court since 2006. I found it surprising that such an allegation could be made.

17. In the meantime, the appellant has sought to have me disqualify myself for having expressed that view. It was not necessary to determine the application with regard to Mr Kiru that he remove himself from the proceedings, a power over which the Court did not in any event have, as I perceive matters, because Mr Kiru stood aside voluntarily and Ms Blizard has appeared in his stead.

18. I do not agree that I should disqualify myself from the proceedings for the reasons that were advanced by the appellant, either in writing or viva voce, and I have continued to hear these various applications as they have continued to come before the Court.

19. The next occasion the matter came before me was on 20 March 2019; the Commissioner of Police was not represented on this occasion. There was an amended notice of motion filed on that occasion for Mr Kiru to remove himself from the proceedings. As I said, that became unnecessary because Ms Blizard was now briefed. He (the Appellant) sought to file a further amended notice of motion and affidavit in support to adduce fresh evidence. There were orders made for him to file and serve any amended notice of motion along with supporting affidavits or evidence within seven days. The matter was adjourned to 18 April 2019 for hearing of the motions with one day estimate. An Egyptian Arabic interpreter was required.

20. The registry was to notify the Crown Solicitor’s Office to inform them of the hearing date so that the motion could be argued. The motion for a production of documents to the Commissioner of Police was brought upon what I perceived to be a flawed call in the subpoena that had been prepared. This notwithstanding the Commissioner of Police was prepared to produce some documents that were available.

21. On 22 March 2019 when the matter was next before me access to the contents of some packets produced by the Green Valley Group was opposed by the Crown because there was no legitimate forensic purpose. I said I would give my decision regarding that on the next occasion, bearing in mind the hearing of the motion was listed for 18 April 2019.

22. On 18 April 2019 Mr Murphy appeared for Liverpool and Fairfield, Staying Home - as it appears on this file - on the subpoena issue. Mr Gray appeared for the Commissioner of Police. There was a s 4 annulment application hearing in the Local Court listed for 15 May 2019. I adjourned the proceedings to 17 May 2019 for mention; to be informed of the determination of the s 4 application in the Local Court. That was in respect of proceedings that as I understand it ultimately came before Magistrate Denes most recently and the application was refused.

23. On 17 May 2019 Mr Wallace, for the Commissioner of Police, appeared. Access to documents produced on subpoena by the Commissioner of Police was not granted. I was to hear what the s 4 annulment application was about, review the transcript of the proceedings before the magistrate and then come to a conclusion as to whether the material had any forensic purpose in the substantive proceedings. The matter was adjourned to 30 May 2019 for hearing part heard. I declined to receive submissions from Mr Livers until a copy had been provided to Mr Wallace for him to consider his response. The affidavit upon which the appellant wished to rely was to be filed and served on 24 May 2019.

24. The matter was next before me on 30 May 2019. Once again, Mr Wallace appeared for the Commissioner of Police. It was adjourned to 10 and 11 July 2019 part heard before me for hearing of the appeals, other than the file number 2016/178780 listed for mention. The Commissioner of Police was not required to respond further to the subpoena. There was a reference to a subpoena filed on 8 February 2019, which was a subsequent subpoena to that filed before then with four less paragraphs. I took the notice of motion as filed by the appellant as embracing both documents. A transcript was ordered for the day.

25. The matter came before me on Thursday 11 July 2019. Due to other work that was before the Court - which has been at a very intense level I might say - I could not deal with the matter and it was stood over to 11 July 2019 not before 12pm. On 11 July the matter continued from that date to 12 July and then was resumed today.

26. I have had filed in this Court a raft of material provided by the appellant. I have envelope after envelope of documents sought via the subpoenae, all of which he would wish to put before the Court as evidence relevant to the appeals which call for the determination of whether or not he ought to have been found to have committed an offence of assault occasioning actual bodily harm against his daughter and whether or not an apprehended violence order or orders ought to have been made and ought to continue.

27. The material that I have reviewed from time to time as the matter has unfolded speak to conduct in a much broader context which could not, in my assessment, have any relevance to the determination of these appeals, other than to satisfy aspects of curiosity about the personal lives of the members of this family.

28. I do not propose to spend more time in this Court listening to Mr El‑Saeidy present oral argument. He has a difficulty when it comes to focussing his submissions. He is easily deflected from the point that is under consideration. The Court does not have the time to extend to him the opportunity to address as he would wish without giving any firm consideration to the relevance of what he is saying to the issues that have to be resolved.

29. The best course, in my assessment, is to allow him to provide what he wishes to say in writing against the risk that his approach to this matter and the extent to which he presents oral argument might leave the Court with a chance of falling into error by not taking into account something that he might wish to say. I do not see it as appropriate to consume more resources of the Court and the services that support the Court in providing transcript after transcript to decipher from the oral representations made by the appellant his point and what he has in support of the point. It would be better, in my view, if he provides his position in writing to which I shall refer. I will then consider those submissions against the raft of material I have before me, including multiple transcripts before magistrates; envelopes full of documents that have been produced to the Court in response to subpoenae, including to the Commissioner of Police; the notices of motion that he has filed; the affidavits that he has filed, with annexures, and I will then provide my reasons for either admitting or refusing to admit the evidence he would advance as relevant to the determination of the appeals.

30. I will also consider the merit of the appeals and come to a decision with regard to them.

31. I have limited time available to me at the moment. I will be away from this complex for two months commencing toward the end of July and will not be returning until late September. I propose to list the matter before me in the first two weeks of October.

32. Mr El‑Saeidy is required to provide his submissions in writing with reference to whatever documents he wishes to identify and I will give my attention to what he has to advance. He is to serve that document upon the Crown.

33. He is clearly well seized of all of these issues. For example, today doing the best I could I referred to an event in Bankstown Court which I thought had occurred in proceedings in the Local Court at Parramatta. That was an occasion when he had the opportunity to have his wife and daughter cross‑examined, or at least be asked questions by an independent person when he did not have a lawyer to represent him. He would not allow that to occur. My error was with regard to the court in which that apparently took place. I have noted that and I will bring that to bear in the course of my consideration of the matter.

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Decision last updated: 15 October 2021