El-Saeidy v The Queen (No 2) - [2021] NSWDC 548

District Court

New South Wales

Medium Neutral Citation: El-Saeidy v R (No 2) [2021] NSWDC 548
Hearing dates: 02 June 2021, 26 July 2021 & 09 August 2021
Date of orders: 10 September 2021
Decision date: 10 September 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
The application to reinstate the appeals is refused

Catchwords:
CRIME — Appeal and review — Appeal from Local Court to District Court — Reinstatement of appeal after dismissal for want of prosecution

Legislation Cited:
Crimes (Appeal and Review) Act 2001

Cases Cited:
Barrett v Director of Public Prosecutions (NSW) [2020] NSWCA 270
El Saeidy v Director of Public Prosecutions (NSW) [2017] NSWCCA 211
El-Saeidy v Director of Public Prosecutions [2018] NSWCA 127
El-Saeidy v Director of Public Prosecutions No 2 [2019] NSWCA 297
El-Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289
Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79

Category: Principal judgment
Parties: Fawzi El-Saeidy (Applicant)
Regina (Respondent)
Representation:
Peter Livers (solicitor for the Applicant on 02 June & 26 July 2021, Applicant was self-represented after this occasion and there was no appearance on 09 August 2021)
Felicity Evans (solicitor for the respondent)
Slattery Thompson (solicitors for the Applicant on 02 June & 26 July 2021 after which the Applicant was self-represented)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2016/00178780, 2016/00205238 & 2016/00323816

REVISED EX TEMPORE JudgEment

Introduction

These are proceedings concerning Mr Fawzi El-Saeidy. The proceedings have been in the District Court for a number of years.

The History of the Proceedings

According to my file notes the matter was first before me on 23 November 2018 from which day the proceedings were adjourned to 7 December 2018 for mention to allow the Crown appearing at the time to view material produced on subpoena issued at the instance of Mr El-Saeidy. Access was granted to material that was produced and the appellant, as he was then known, was to appear in person on the next occasion. Thereafter there have been multiple occasions when these appeals and applications in respect of the appeals have been before me at the District Court sitting at Parramatta and in Sydney.
Regardless of efforts to have the matter brought to finality with representatives from the office of the Director of Public Prosecutions having to change throughout the history of the matter, the appellant was at no time according to what was put to the court, in a position to proceed and have the matters determined. On each occasion when the matter was set down for hearing there was a reason offered why the matter could not continue and the matter was adjourned to ensure that Mr El Saeidy was not denied procedural fairness and would have opportunity to present his arguments and the material upon which he wanted to rely in the conduct of the appeals.
In the course of the appearances there were applications for the appellant, as he was then known, to adduce fresh evidence. These included the opportunity to have…

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: [2021] NSWDC 548
Decision Date: 10 September 2021

CaseChat Overview and Summary

The case before the court involved El-Saeidy, the appellant, who was appealing a decision made by the Local Court to the District Court. The nature of the dispute centred on the dismissal of his appeals on the grounds of want of prosecution. El-Saeidy sought to have his appeals reinstated, arguing that the dismissal was unjust. The court was tasked with determining whether the appellant's applications to reinstate his appeals should be granted.

The legal issues before the court were whether the appellant's applications to reinstate his appeals were valid and whether the dismissal of his appeals was justified. The court had to consider the procedural history of the case, including the reasons for the initial dismissal and whether there were any valid grounds for reinstating the appeals. It was essential for the court to assess whether the appellant had demonstrated sufficient cause for the delay and whether there were any prospects of success if the appeals were reinstated.

The court meticulously reviewed the procedural history and the arguments presented by the appellant. It found that there were no exceptional circumstances that warranted the reinstatement of the appeals. The court held that the appellant had not provided a satisfactory explanation for the delay and that the dismissal was in accordance with the principles of justice and fairness. Consequently, the court refused the application to reinstate the appeals, affirming the earlier decision to dismiss them for want of prosecution.

Orders

Orders of the court

The application to reinstate the appeals 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 2) [2021] NSWDC 548
Hearing dates:	02 June 2021, 26 July 2021 & 09 August 2021
Date of orders:	10 September 2021
Decision date:	10 September 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	The application to reinstate the appeals is refused
Catchwords:	CRIME — Appeal and review — Appeal from Local Court to District Court — Reinstatement of appeal after dismissal for want of prosecution
Legislation Cited:	Crimes (Appeal and Review) Act 2001
Cases Cited:	Barrett v Director of Public Prosecutions (NSW) [2020] NSWCA 270 El Saeidy v Director of Public Prosecutions (NSW) [2017] NSWCCA 211 El-Saeidy v Director of Public Prosecutions [2018] NSWCA 127 El-Saeidy v Director of Public Prosecutions No 2 [2019] NSWCA 297 El-Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289 Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79
Category:	Principal judgment
Parties:	Fawzi El-Saeidy (Applicant) Regina (Respondent)
Representation:	Peter Livers (solicitor for the Applicant on 02 June & 26 July 2021, Applicant was self-represented after this occasion and there was no appearance on 09 August 2021) Felicity Evans (solicitor for the respondent) Slattery Thompson (solicitors for the Applicant on 02 June & 26 July 2021 after which the Applicant was self-represented) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2016/00178780, 2016/00205238 & 2016/00323816