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

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.
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.
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.
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.
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.
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.
On 7 December 2018 I granted the appellant leave to file a notice of motion and affidavit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 266
Decision Date: 16 July 2019

CaseChat Overview and Summary

In the case of El-Saeidy v The Queen, the appellant, Mr El-Saeidy, was challenging the decision of the District Court of New South Wales to deny his application for the disqualification of Bennett SC DCJ from hearing his case. The central issue in this case was whether Bennett SC DCJ should have been disqualified from presiding over the trial due to an apprehended bias. This decision arose from the appellant's contention that there existed circumstances that could reasonably lead to the perception of bias on the part of the judge. The appellant argued that Bennett SC DCJ had previously expressed opinions in another context that could create an impression of partiality or prejudice in the current proceedings.

The court was tasked with determining whether the appellant's concerns about Bennett SC DCJ's impartiality were justified and warranted his disqualification from the case. This involved a careful analysis of the nature and extent of Bennett SC DCJ's prior statements and whether these could give rise to a reasonable apprehension of bias in the minds of an observer. The court had to weigh the appellant's submissions against the principles of judicial impartiality and the potential impact of any perceived bias on the fairness of the trial.

After considering the evidence and arguments presented, the court concluded that there was no basis to find Bennett SC DCJ was biased or that there was an apprehended bias. The court held that the statements made by Bennett SC DCJ did not reach the threshold required to disqualify him from the case. The reasoning was grounded in the understanding that a reasonable observer, fully informed of the facts, would not perceive the judge to be biased against the appellant. Consequently, the court refused the appellant's application for Bennett SC DCJ to disqualify himself from the case.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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