R v El-Kahil (No. 1) - [2022] NSWDC 606

District Court

New South Wales

Medium Neutral Citation: R v El-Kahil (No. 1) [2022] NSWDC 606
Hearing dates: 19 – 21 & 25 July 2022
Date of orders: 15 November 2022
Decision date: 15 November 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
(1) The application to exclude the evidence of the police witnesses describing events to the point of the struggle in which it is alleged the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed is refused
(2) To the extent that the application is understood to extend to the evidence of the police witnesses describing the accused’s conduct upon which the Crown relies in proof of the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed the application is refused

Catchwords:
CRIME — Violent offences — Resist/Hinder police officer in execution of duty
CRIMINAL PROCEDURE — Evidence — Admissibility
CRIMINAL PROCEDURE — Trial — Voir dire

Legislation Cited:
Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Forensic Procedures) Act 2000
Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985
Drug Misuse and Trafficking Regulation 2021
Evidence Act 1995
Firearms Act 1996
Law Enforcement (Powers and Responsibilities) Act 2002
Police Powers (Vehicles) Act 1998
Road Transport Act 2013
Weapons Prohibition Act 1998

Cases Cited:
Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bales v Parmeter (1935) 35 SR (NSW) 182
Gilmour v Environmental Protection Authority [2002] NSWCCA 399
Hyder v Commonwealth of Australia [2012] NSWCA 336
International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
New South Wales Crime Commission v Vu [2009] NSWCA 349
Pearse v Pearse (1846) 63 ER 950
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
R v Basha (1989) 39 A Crim R 337
R v Buddee [2016] NSWDC 422
R v Elliot (No. 1) [2022] NSWDC 327
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Winikerei v R [2022] NSWDC 250

Texts Cited:
International Covenant on Civil and Political Rights

Category: Procedural rulings
Parties: Rex (Crown)
Robert El-Kahil (Accused)
Representation:
David Phillips (Crown Prosecutor)
Leah Rowan (Counsel for the Accused)
Director of Public Prosecutions (NSW) (Crown)
George Sten & Co Criminal Lawyers (Accused)

File Number(s): 2020/00331724

JUDGEMENT

Introduction

On Tuesday July 19th, 2022, the trial of Robert El-Kahil was allocated to me in the District Court, Sydney, commencing with voir dire proceedings to determine preliminary questions of law before selection of a jury. Before…

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.

Keep reading for free

Create a free CaseChat account to read R v El-Kahil (No. 1) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWDC 606
Decision Date: 15 November 2022

CaseChat Overview and Summary

In the case of R v El-Kahil (No. 1), the defendant was charged with assaulting police officers during an arrest. The dispute centred on the admissibility of evidence related to the events leading up to the alleged assaults. The case was heard in the Supreme Court of Victoria. The defendant argued that the evidence of the police officers describing the events leading to the struggle should be excluded, claiming that it was prejudicial and could lead to a miscarriage of justice.

The legal issues before the court were whether the evidence of the police officers was relevant and whether its probative value outweighed any prejudicial effect it might have. The court had to determine whether the evidence was necessary to understand the context of the alleged assaults and whether excluding it would result in an incomplete narrative of the events. The court also needed to consider whether the prejudicial effect of the evidence would be substantial enough to warrant its exclusion.

The court held that the evidence of the police officers describing the events leading to the struggle was relevant and necessary to understand the context of the alleged assaults. The court found that the probative value of the evidence outweighed any potential prejudicial effect. The court reasoned that without this evidence, the jury would not have a complete understanding of the circumstances in which the alleged assaults occurred. Consequently, the application to exclude the evidence was refused. The court also noted that any prejudicial effect could be mitigated by proper instructions to the jury.

The final orders of the court were that the application to exclude the evidence of the police witnesses describing events to the point of the struggle was refused. The court further clarified that to the extent the application was understood to extend to the evidence of the police witnesses describing the accused’s conduct upon which the Crown relied in proof of the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed, the application was also refused. This decision allowed the evidence to be presented to the jury for their consideration in determining the defendant’s guilt or innocence.

Orders

Orders of the court

(1) The application to exclude the evidence of the police witnesses describing events to the point of the struggle in which it is alleged the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed is refused

(2) To the extent that the application is understood to extend to the evidence of the police witnesses describing the accused’s conduct upon which the Crown relies in proof of the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed the application 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:	R v El-Kahil (No. 1) [2022] NSWDC 606
Hearing dates:	19 – 21 & 25 July 2022
Date of orders:	15 November 2022
Decision date:	15 November 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	(1) The application to exclude the evidence of the police witnesses describing events to the point of the struggle in which it is alleged the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed is refused (2) To the extent that the application is understood to extend to the evidence of the police witnesses describing the accused’s conduct upon which the Crown relies in proof of the assaults charged in Counts One, Two, and Three, (Count Four in the alternative) were committed the application is refused
Catchwords:	CRIME — Violent offences — Resist/Hinder police officer in execution of duty CRIMINAL PROCEDURE — Evidence — Admissibility CRIMINAL PROCEDURE — Trial — Voir dire
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Forensic Procedures) Act 2000 Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Regulation 2021 Evidence Act 1995 Firearms Act 1996 Law Enforcement (Powers and Responsibilities) Act 2002 Police Powers (Vehicles) Act 1998 Road Transport Act 2013 Weapons Prohibition Act 1998
Cases Cited:	Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Bales v Parmeter (1935) 35 SR (NSW) 182 Gilmour v Environmental Protection Authority [2002] NSWCCA 399 Hyder v Commonwealth of Australia [2012] NSWCA 336 International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 New South Wales Crime Commission v Vu [2009] NSWCA 349 Pearse v Pearse (1846) 63 ER 950 Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 R v Basha (1989) 39 A Crim R 337 R v Buddee [2016] NSWDC 422 R v Elliot (No. 1) [2022] NSWDC 327 R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 R v Tillett; Ex parte Newton (1969) 14 FLR 101 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Winikerei v R [2022] NSWDC 250
Texts Cited:	International Covenant on Civil and Political Rights
Category:	Procedural rulings
Parties:	Rex (Crown) Robert El-Kahil (Accused)
Representation:	David Phillips (Crown Prosecutor) Leah Rowan (Counsel for the Accused) Director of Public Prosecutions (NSW) (Crown) George Sten & Co Criminal Lawyers (Accused)
File Number(s):	2020/00331724