R v Elassaad (No. 1)

[2024] NSWDC 181

District Court

New South Wales

Medium Neutral Citation:

R v Elassaad (No. 1) [2024] NSWDC 181

Hearing dates:

12-13 March 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

I allow the appeal in part. Convictions and sentences for H88163384 sequences 4, 5 and 6 set aside.

Conviction and sentence imposed for H88163384 sequence 7 confirmed.

Catchwords:

Whether evidence tendered in Local Court proved each assault – Magistrate relied on “acoustic evidence” but no expert evidence and acoustic evidence inconsistent with allegations made by complainants.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Appellant – Mohamad Elassaad
Crown – R (NSW)

Representation:

Counsel:
Appellant – Mr Galluzzo, G.
Crown – Ms Ervine, C.

Solicitors:
Appellant – Elias Gates
Crown – Office of the Department of Public Prosecutions (NSW)

File Number(s):

2022/00006307

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

08 May 2023

Before:

Magistrate Prowse

File Number(s):

2022/00006307

Judgment

1. HIS HONOUR: This is an appeal against four convictions recorded and sentences passed by Magistrate Prowse.

2. The crimes alleged were said to have occurred on 8 January 2022. The appellant was eventually arrested on that day and appeared before the Parramatta Bail Court on 9 January 2022. The proceedings were initially listed for hearing before the Local Court at Bankstown on 26 April 2022 when they were adjourned on the application of the Crown because the witnesses were not available to be called. The matters eventually commenced to be heard by Magistrate Prowse sitting in the Local Court at Bankstown on 3 March 2023. On that occasion the police presented the police case, and his Honour determined the guilt of the accused/appellant. The matter was then adjourned to the Local Court at Sutherland where certain things happened before Magistrate Prowse on 1 May 2023 and 4 May 2023. On 8 May 2023 his Honour gave his ruling on penalty when he was sitting in the Local Court at Armidale.

3. Magistrate Prowse, as I understand it, resides in Armidale and has for many years been a relieving magistrate. Hence he moves around the State. Hence he had been sitting at Bankstown in March 2023 and at Sutherland in May 2023. He was back sitting in Armidale on 8 May 2023 and at that time the resident magistrate, Magistrate Holmes, had either recently retired or was about to retire after suffering from a medical illness. As I understand it when Magistrate Holmes became ill, Magistrate Prowse was doing most of the work at Armidale. That explains the nature of how the physical hearing occurred.

4. There were four alleged crimes that were dealt with by his Honour. The first, known as sequence 4, was an allegation of assault occasioning actual bodily harm to Constable Nathan Donkin, a police officer, whilst he was executing his duty. Sequence 5 was a further allegation of assault occasioning actual bodily harm. On this occasion the victim was Constable Kristie Partridge who was also alleged to be executing her duty at the time of that assault. Sequence 6 was a further allegation of assaulting Constable Donkin occasioning actual bodily harm to him while he was executing his duty. The final allegation was known as sequence 7 and was an allegation that the appellant resisted Constable Nathan Donkin, a member of the Police Force, in the execution of his duty. The resistance was to an attempt by Constable Donkin to arrest the appellant.

5. The three allegations of assault occasioning actual bodily harm also arose from the circumstances in which Constable Donkin, assisted by Constable Partridge, sought to arrest the appellant.

6. Constable Donkin and Constable Partridge were stationed at Bankstown. They commenced duty on Saturday, 8 January 2022 at 6.30pm. They were rostered to a 12-hour shift to conclude at 6.30am on Sunday, 9 January 2022. Around 10.45pm the Constables responded to a job which was broadcast on police radio. The informant was Fayza Elassaad, the mother of the appellant. She alleged that there had been damage caused deliberately by the appellant to Mrs Elassaad’s house.

7. According to the statement of Constable Donkin, he and his partner, as he described Constable Partridge, acknowledged the job at 11.15pm and arrived at the address in question shortly thereafter. The statement of Constable Donkin, which was Exhibit 1, continued in this fashion:

“6. Upon arrival I was greeted by a male I now know as the other victim in the matter, Mahmoud Elassaad. Mahmoud escorted me to the rear area of the house where I observed numerous items to be destroyed.

7. I obtained an initial version of events off [sic, scil. from] the victims on body worn camera.

8. After this version was obtained, I switched my body worn [camera] to standby mode. I was having a further conversation with the victims on the process when I heard a male voice I now know as belonging to the accused. He said words to the effect of ‘it was me, let’s get this fucking over with’. The accused appeared hostile, angry and agitated.

10. I activated my body worn camera once again as I feared a physical confrontation was imminent.

11. The accused tensed up and became irate and aggressive. I said, ‘that’s enough’ and approached the accused. I attempted to grab the accused to prevent further physical violence and confrontations, the accused pulled back sharply to which I approached him again. I grabbed the accused and he pulled back violently and the accused, myself and Constable Partridge all collided with the Colorbond fence behind the accused and fell through it into the adjoining neighbour’s yard”.

8. According to the statement of Constable Donkin, when he was attempting to restrain the accused, he was punched in the face by the appellant using the appellant’s left hand no less than twice. According to the constable’s statement, the punches struck him in the left eye and in the mouth.

9. Exhibit 3 shows pictures of the injuries sustained by Constable Donkin taken later. There is a hemiorbital haematoma affecting the right eye. Only the lower half of the orbit has been bruised. There are also injuries to the left and right sides of the inner upper lip consistent with force being applied to the exterior of the lip forcing it onto the teeth of the constable.

10. Somehow in the scuffle which ensued between the three persons involved, the appellant, Constable Donkin and Constable Partridge went through the Colorbond fence into the neighbouring yard. Constable Partridge found that she had been injured. In paragraph 12 of her statement, which was Exhibit 4, Constable Partridge said this:

“I was attempting to control the accused enough so that I could place handcuffs on him to prevent further harm to us and himself, the accused was swinging his arms wildly and kept trying to pull his arms away. I received several scrapes and bruises to my hands and arms which caused me to feel immediate pain”.

11. Photographs of the injuries sustained by Constable Partridge were Exhibit 5. The first of those appears to show some bruising on the lateral aspect of the left upper arm. Another is alleged to show some bruising on the left leg below the knee but above the ankle, where exactly the bruising is I find it very difficult to discern from the photograph in question.

12. Of significance is the body worn camera film taken by the body worn cameras of both Constable Donkin and Constable Partridge. It has been played numerous times to me both yesterday and today, and today I have had it played to me in very slow motion. It is almost impossible to describe exactly what it shows and it is impossible to ascertain from it how the injuries sustained by Constables Donkin and Partridge occurred.

13. In his reasons the magistrate said this:

“...when Senior Constable Donkin went to place hands on Mr Elassaad so as to place him under arrest, Mr Elassaad commenced his resistance by then moving backwards into the fence and given the fact that Senior Constable Donkin had hands upon Mr Elassaad at that point in time, Constable Donkin went with him through the fence. I am not quite sure how Constable Partridge was attached, whether she was trapped between the two or also had her hand on, she cannot quite remember either, but through the fence they went. And as they were falling through the fence, you could hear ..(not transcribable).. thumps occurring. The ..(not transcribable).. thumps were consistent with the evidence given by Senior Constable Donkin in relation to being struck on the way to the ground in the body areas spoken of, being his face.

He said that his microphone, I suspect, or the body worn video unit, my words not his, were strapped to his upper right clavicle area of his vest [?chest] and the ..(not transcribable).. separated by an appreciable gap, sounds consistent with what he said occurred, ie, being struck to the face, the evidence of which is undeniably the case, because there is injury to his left eye - we will have to check which is left or right, his left eye and injury to the inner side of his right upper lip. There was a distinct gap between the two ..(not transcribable).. sounds of thumping, collision.

Whilst I am not a sound expert, there is sufficient nexus between the sounds occurring whilst on the way to the ground as Senior Constable Donkin said, and the complaint in relation to those things which are undeniably the case, ie, Senior Constable Donkin being struck by something, causing those injuries. The only ‘something’ of which there is evidence that he was struck with was the [fist] of Mr Elassaad. Thereafter, they landed on the ground, thereafter I do not know what happened with Senior Constable Partridge because it is difficult to say precisely and indeed Senior Constable Partridge says the same thing, that she was involved in the unfolding physical struggle on the ground and during that she sustained the injuries she complained of.”

14. Like the magistrate, I am not an expert in acoustic evidence. No expert in acoustics was called. I could hear two thumps when the video cameras were played at normal speed, albeit that I could not hear them when the body worn camera images were being played at a slow pace. However, it is accepted by the Crown that those two “thumps” were heard whilst the appellant was on the ground, not whilst he was in the process of falling through the fence, falling between the erect position to the supine position in which he found himself prior to being turned prone in order for the handcuffs to be attached to his hands, his hands being then behind his back.

15. Whatever the thumps are, it is impossible to determine. The thumps, as I said, were when the appellant was on the ground. It could have been whilst the appellant was struggling to free himself from the grasps of the two officers, it could have been his raising his feet above the ground and bringing them hard down on the ground, it could have been anything at all in the process of three people struggling on the ground.

16. I should indicate that Constable Partridge was on the right-hand side of the appellant, that is on the left-hand side of her partner, and appears to have gone with them through the fence at the time that the two men did so and she can be seen on the left-hand side of Constable Donkin when the two of them were trying to subdue the appellant. I should indicate that that was a process that took longer than it normally would because Constable Partridge tried to use her handcuffs but one of the cuffs was locked and there then had to be a removal of her handcuffs and replacing them with the handcuffs of Constable Donkin.

17. Therefore, the two sounds heard by the magistrate could not corroborate the evidence of Constable Donkin that the accused threw two blows with his fist into the senior constable’s face as they were falling to the ground. Indeed, that appears to be a problematical action because Constable Donkin had sought to restrain the appellant’s arm initially and the two appeared to be locked together as they fell to the ground through the fence. The idea that a punch could be thrown when that was occurring lends, in my view, some doubt as to the reliability of the recollection of Constable Donkin that two punches were actually thrown during that process.

18. The normal human reactions when falling backwards is to try to brace oneself from being hurt by placing one’s hands behind one in order to prevent a major injury. However, injuries can occur in a fall. All that need happen, for example, is that the face of Constable Donkin hit part of the body of the accused as he was falling, perhaps when he fell onto the appellant when the appellant reached the ground immediately prior to his doing so.

19. Indeed, it is impossible to know from her evidence how Constable Partridge sustained her injuries. She does not suggest that punches were thrown in her direction by the appellant, nor is there any evidence of, for example, scratching or clawing at her body.

20. Many things can happen when people fall through a fence unexpectedly and land on the ground perhaps in what might best be described as a collapsed maul. An assault occasioning actual bodily harm is a deliberate assault designed to cause harm, a deliberate touching of the body with intent to cause harm. In the circumstances, I accept that the Crown has failed to prove that there is sufficient evidence to prove that this was done deliberately, that the injuries received by Constable Donkin and Constable Partridge were done deliberately by the appellant.

21. The remaining issue, therefore, there being no application that I consider in the alternative, an allegation of common assault is whether the conviction of the appellant for resisting Constable Donkin in the execution of his duty should be upheld. Clearly, the accused admitted prior to any attempt by Constable Donkin to arrest the appellant that he had caused the damage of which his parents had complained earlier on the evening of 8 January 2022 to their home at Greenacre. Indeed, the appellant was living in premises next door to his parents’ house and he had walked down the driveway after Constable Donkin and Constable Partridge had had the earlier interaction with his parents.

22. I should indicate that there was greater detail in the statement of Constable Partridge, Exhibit 4, than there was in the statement of Constable Donkin about the extent of the damage to the premises of Mr and Mrs Elassaad. In paragraph 7 of Constable Partridge’s report this is stated:

“I could see broken plant pots, soil and broken chairs on the driveway. When I entered the back, I saw the other victim waiting for us. I observed broken windows on the back building and food scraps on the roof of the kitchenette”.

There was description of a granny flat at the back of the house occupied by Mr and Mrs Elassaad.

23. I have closely watched the body worn camera at all times, including up until the time when Constable Donkin moved to arrest the accused. Clearly, he had admitted his responsibility for what might be called malicious damage to his parents’ property. Constable Donkin was, therefore, entitled to arrest him.

24. There was a confrontation in which the accused said a number of things which indicated to me that he felt that he had a sense of entitlement, an egocentric view of what had been going on and a sense that he was in some way a victim even though it is clear that he may have committed malicious damage to his parents’ property. He was gesticulating much more greatly than would a person of Anglo Saxon background, albeit the French do gesticulate frequently as do Italians, but at one stage the gesticulation appears to be quite aggressive, and it is only then that Constable Donkin moved to arrest the appellant, which arrest he clearly resisted.

25. I must say that the accused’s ability in English language was replete with foul and insulting language. Indeed, one might describe the language used by the appellant towards both Constable Donkin and Constable Partridge both collectively and individually as vile, foul, loathsome, filthy and disgusting. However, the use of such language to insult persons is not a crime unless it be in hearing of a public place or school. There was no suggestion that that occurred.

26. I, therefore, allow the appeal in part. I set aside the convictions recorded and sentences passed in respect of the offences known as H88163384 - sequences 4, 5, and 6.

27. The remaining issue is whether I should interfere with the sentence passed by Magistrate Prowse in respect of sequence 7, resisting Constable Donkin in the execution of his duty. The sentence imposed was merely a conviction pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. In my view, there was nothing that would cause me to interfere with that sentence.

28. There has been submitted by learned counsel for the appellant, Mr Galluzzo, that I should interfere with that because the appellant was bail refused by Magistrate Prowse between 3 March 2023 when he recorded the conviction and 8 May 2023 when he passed sentence, a period of some two months and two days. However, the appellant was bail refused for other matters commencing on 29 January 2023 until being granted bail by the Supreme Court on 10 May 2023, so that refusing bail by Magistrate Prowse caused the appellant no actual detriment. In the circumstances, a conviction being recorded without any other penalty seems to me to be an appropriate penalty in the circumstances of the current case.

29. The formal orders are these:

Convictions and sentences for H88163384 sequences 4, 5 and 6 set aside.

Conviction and sentence imposed for H88163384 sequence 7 confirmed.

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Decision last updated: 06 June 2024