116 NSWLR 442Elali v R[2025] NSWCCA 9Court of Criminal AppealPrice AJA, Ierace and McNAUGHTON JJ15November 2024, 19 February 2025
CRIME — Public justice offences — Escape — Whether a continuing offence.
A man was being escorted by police to a police vehicle when he broke free and ran across a road, down an alleyway and through a house. The man then ran into a second house and hid in a bedroom. Having lost sight of the man, police secured a perimeter around the man’s general location. They ultimately found the man in the bedroom, where he was arrested and returned to custody.
The man pleaded guilty to, and was sentenced for, an offence of entering a building with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW). It was common ground that the indictable offence was the common law offence of escaping from lawful custody. The man sought leave to appeal against his conviction on the ground that he could not in law have been convicted of the offence on the agreed facts because, by the time he entered the second house, he was no longer in the direct vicinity of police and police had lost sight of him, such that he had already committed the offence of escaping from lawful custody. The man submitted that, as a result, a miscarriage of justice had been occasioned and his plea of guilty should be set aside.
Held (granting leave to appeal and dismissing the appeal against conviction): The common law offence of escaping from lawful custody is a continuing offence. It is not constrained by the imposition of boundaries such as the lack of immediate pursuit, loss of control or being out of sight. ([61], [65]; [166]; [167])
(Obiter) It would be sensible to say that there is a temporal limitation to the offence, escape does not continue indefinitely, there will come a time when the escape has been completed such that the escapee becomes a fugitive from justice and whether the escape has been completed is a question of fact. It may be doubted that the offence continues so long as the person escaping is kept out of imprisonment, as stated in R v Ryan (1890) 11 LR (NSW) 171. ([61], [65]; [166]; [167])
R v Ryan(1890) 11 LR (NSW) 171; R v Ryan[1966] VR 553; R v Scott[1967] VR 276; R v Dhillon[2006] 1 WLR 1535; [2005] EWCA Crim 2996 considered.R v Reid[2015] EWCA Crim 597 applied.R v Keane[1921] NZLR 581; R v Kafka[1962] NZLR 351; R v Kura[2008] NZCA 337 not followed.
[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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AGLC
Elali v R [2025] NSWCCA 9
Case
[2025] NSWCCA 9
Decision Date
CaseChat Overview and Summary
The applicant, Abdul Elali, appealed against his conviction and sentence for the offence of entering a building with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW). He pleaded guilty to this offence in the Local Court and was sentenced in the District Court to an aggregate sentence of 8 years’ imprisonment, with a non-parole period of 4 years. The Court of Criminal Appeal granted leave to appeal against both the conviction and sentence. The key issue in the appeal was whether the common law offence of escaping from lawful custody is a continuing offence, which the Court found it to be. The applicant argued that the offence was complete once he was no longer in the direct vicinity of the police, who had lost sight of him. However, the Court held that the offence continues as long as the person is evading lawful imprisonment. The Court also addressed the applicant's grounds of appeal concerning his sentence, and ultimately reduced the aggregate sentence to 7 years and 6 months’ imprisonment, with a non-parole period of 3 years and 9 months.