Omar Elbaba v Regina - [2017] NSWDC 196

District Court

New South Wales

Medium Neutral Citation: Omar Elbaba v Regina [2017] NSWDC 196
Hearing dates: 29, 30 May, 1 June 2017
Date of orders: 22 June 2017
Decision date: 22 June 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
(1) Appeal against conviction dismissed

Catchwords: CRIMINAL LAW – conviction appeal – assault police in execution of duty causing actual bodily harm – resist officer in execution of duty – custody of knife in public place – police pursuit – failure to stop – drive recklessly – drive dangerously
APPEAL – conviction – not guilty – interpretation – legislative provisions – finding of the magistrate
EVIDENCE - credit findings of witnesses
PROCEDURAL – de novo hearing - evidence – procedural fairness – conduct of hearing in the local court – refusal of magistrate to admit evidence – cross-examination
Legislation Cited: Crimes Act 1900 s.51B(1), 58, 60(1), 60(2)
Crimes (Appeal and Review) Act 2001 s.18(1)
Law Enforcement (Powers and Responsibilities) Act 2002 ss.3, 12, 17(1), 19, 99(1)(b), 202
Road Transport Act 2013 s.117(2)
Summary Offences Act 1988 s.11C
Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137
Charara v R [2006] NSWCCA 244
Fox v Percy (2003) 214 CLR 118
Dyason v Butterworth [2015] NSWCA 52
AG v Director of Public Prosecutions [2015] NSWCA 218
Bandana v Director of Public Prosecutions [2016] NSWCA 140
Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
Perish v R (2016) 92 NSWLR 161
R v Hart (1932) 23 Cr App R 202
R v Nicholas (2000) 1 VR 356
R v Foley [2000] 1 Qd R 290
R v McDowell [1997] 1 VR 473
Coleman v Power (2004) 220 CLR 1
Category: Principal judgment
Parties: Omar Elbaba (Appellant)
Regina (Respondent)
Representation:
Counsel:

Mr W Tuckey (Appellant)

Solicitors:
El-Masri & Associates Lawyers (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00161724; 2015/00189686; 2015/00182788
Publication restriction: None

judgment

Omar Elbaba (the appellant) appeals against the convictions entered by her Honour Magistrate Stapleton on 26 August 2016 at the Waverley Local Court.
The appellant pleaded not guilty to the following offences:

Police pursuit section 51B(1) Crimes Act 1900;

Drive in a manner dangerous section 117(2) Road Transport Act 2013;

Fail to disclose the identity of a driver section 17(1) Law Enforcement (powers and Responsibilities) Act 2002 (LEPRA);

Assault police officer in the execution of his duty section 60(1) Crimes Act 1900;

Assault police officer in the execution of his duty causing actual bodily harm duty section 60(2) Crimes Act 1900;

Resist police officer in the execution of his duty section 58 Crimes Act 1900;

Possession of a knife in a public place section 11C Summary Offences Act 1988.

The hearing took place over 8 non-consecutive days in the Local Court.

Facts

The driving offences

On 28 May 2015 at about 10.42pm a silver Nissan Sylvia registration number BS47WD, owned by and registered to the appellant (the Nissan) was observed by Senior Constable Matthews and Constable Kerrigan driving in a…

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.

Continue reading Omar Elbaba v Regina

Details

AGLC: Omar Elbaba v Regina [2017] NSWDC 196
Case: [2017] NSWDC 196
Decision Date: 22 June 2017

CaseChat Overview and Summary

Omar Elbaba appeals against his conviction for various charges including assault of police officers in the execution of their duty causing actual bodily harm, resisting an officer in the execution of duty, carrying a knife in a public place, failing to stop when directed by police, and driving recklessly and dangerously. The case was heard de novo in the Local Court, where the magistrate had previously found Elbaba guilty. The appeal centres on the interpretation of legislative provisions, the credit findings of witnesses, and procedural fairness in the conduct of the hearing. Elbaba's primary contention is that the magistrate erred in admitting evidence and conducting the cross-examination of witnesses in a manner that was not procedurally fair.

The court considered the arguments around legislative interpretation, the weight and credit given to witness testimony, and the procedural fairness of the original hearing. The court held that the magistrate's interpretation of the legislative provisions was correct and that the credit findings of the witnesses were appropriately assessed. Regarding procedural fairness, the court found that the magistrate's conduct did not breach any principles of natural justice and that the evidence was properly admitted and cross-examined. The appeal was thus dismissed, affirming Elbaba's conviction on all counts.

Orders

Orders of the court

(1) Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Omar Elbaba v Regina [2017] NSWDC 196
Hearing dates:	29, 30 May, 1 June 2017
Date of orders:	22 June 2017
Decision date:	22 June 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	(1) Appeal against conviction dismissed
Catchwords:	CRIMINAL LAW – conviction appeal – assault police in execution of duty causing actual bodily harm – resist officer in execution of duty – custody of knife in public place – police pursuit – failure to stop – drive recklessly – drive dangerously APPEAL – conviction – not guilty – interpretation – legislative provisions – finding of the magistrate EVIDENCE - credit findings of witnesses PROCEDURAL – de novo hearing - evidence – procedural fairness – conduct of hearing in the local court – refusal of magistrate to admit evidence – cross-examination
Legislation Cited:	Crimes Act 1900 s.51B(1), 58, 60(1), 60(2) Crimes (Appeal and Review) Act 2001 s.18(1) Law Enforcement (Powers and Responsibilities) Act 2002 ss.3, 12, 17(1), 19, 99(1)(b), 202 Road Transport Act 2013 s.117(2) Summary Offences Act 1988 s.11C
Cases Cited:	Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Dyason v Butterworth [2015] NSWCA 52 AG v Director of Public Prosecutions [2015] NSWCA 218 Bandana v Director of Public Prosecutions [2016] NSWCA 140 Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 Perish v R (2016) 92 NSWLR 161 R v Hart (1932) 23 Cr App R 202 R v Nicholas (2000) 1 VR 356 R v Foley [2000] 1 Qd R 290 R v McDowell [1997] 1 VR 473 Coleman v Power (2004) 220 CLR 1
Category:	Principal judgment
Parties:	Omar Elbaba (Appellant) Regina (Respondent)
Representation:	Counsel: Mr W Tuckey (Appellant) Solicitors: El-Masri & Associates Lawyers (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/00161724; 2015/00189686; 2015/00182788
Publication restriction:	None