Elskaf v The The King

[2022] NSWDC 525

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Elskaf v R [2022] NSWDC 525

Hearing dates:

07 September 2022

Date of orders:

02 November 2022

Decision date:

02 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1.    Appeal dismissed.

Catchwords:

EVIDENCE – identification evidence – warnings – inferences – circumstantial evidence – whether evidence sufficiently identified driver vehicle and date of the offence

TRAFFIC LAW AND TRANSPORT – traffic law – offences – dangerous driving – driving at excessive speed

Legislation Cited:

Crimes (Appeal and Review) Act2001

Evidence Act 1995

Road Transport Act 2013

Cases Cited:

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

R v Hillier (2007) 228 CLR 619

The Queen v Baden-Clay (2016) 258 CLR 308

Weissensteiner v The Queen (1993) 178 CLR 217

Category:

Principal judgment

Parties:

Ali Elskaf (Appellant)
Regina (Crown)

Representation:

Counsel:
D Shridhar (Appellant)

Solicitors:
Abbas & Co (Appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2020/87365
2020/119813

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Liverpool

Jurisdiction:

Local Court

Date of Decision:

4 April 2022

Before:

Magistrate Mijovich

Judgment

Introduction

1. On 26 November 2021 Ali Elskaf (the appellant) was found guilty of four counts of drive recklessly, furiously, at a speed or in a manner dangerous to the public, contrary to s 117(2) Road Transport Act 2013. The dates of the alleged offences were 4 January 2020, 5 January 2020, 11 March 2020 and 18 March 2020.

2. The appellant’s Notice of Appeal challenged the finding of guilt for each offence. At the hearing before me the conviction appeal in relation to the offence of 4 January 2020 was abandoned. I will deal with the severity appeal as to the 4 January 2020 offence on the next occasion.

3. For each offence, the prosecution relied on videos taken by a passenger in a vehicle that depicted the vehicle being driven in a reckless manner and/or at a dangerous speed. It was common ground that the video evidence depicted the commission of the offence by the driver of the vehicle on each occasion and that each offence occurred on the M5 motorway in Sydney. The issue was identification of the following:

1. the driver;

2. the vehicle; and

3. the date of the alleged offence.

4. The prosecution relied on the videos of the offences and other videos to establish the appellant’s appearance, the appearance of a distinctive wristwatch and sunglasses worn by the driver in some of the offences, the sound of the appellant’s voice, the use of certain catch phrases by the appellant and the appearance of certain emojis in the appellant’s social media accounts.

5. The evidence in the Local Court consisted of the testimony of Senior Constable Smith and the tender of a number of video and documentary exhibits. For ease of reference, I will refer to the exhibit numbers as they were marked in the Local Court.

6. The magistrate was satisfied…