R v Elfatah Yucub El-Haj
[2012] NSWDC 296
•26 November 2012
District Court
New South Wales
Medium Neutral Citation: R v Elfatah Yucub EL-HAJ [2012] NSWDC 296 Decision date: 26 November 2012 Before: Cogswell SC DCJ Decision: Not guilty of grievous bodily harm with intent (s 33(1)(b) Crimes Act 1900). Guilty of statutory alternative of reckless grievous bodily harm (s 35(2) Crimes Act 1900). Guilty of offence of failing to stop and assist after vehicle impact causing grievous bodily harm (s 52AB(2) Crimes Act 1900).
Catchwords: CRIMINAL LAW - Procedure - trial before judge without jury - Particular offences - offences against the person - victim run over when accused reversed his car out of vicitm's driveway at speed - not guilty of causing grievous bodily harm to a person with intent - intent not proven beyond reasonable doubt - unclear where victim standing before accused reversed - evidence of witness with bird's eye view preferred to evidence of emotional/panicked relatives - guilty of causing grievous bodily harm being reckless as to causing grievous bodily harm - statutory alternative - accused turned his mind to possibility of causing harm if he hit someone reversing out of the driveway at speed - people in the driveway - accused checked his rear view mirror - state of intoxication did not affect capacity to form intent - accused formed intent to deliberately damage another person's car with a hammer and by driving it into a tree and deliberately left lights off so as not to illuminate his numberplate - speed indicative of an intention to get away - guilty of failing to stop and assist after vehicle impact causing grievous bodily harm - reversed at speed out of driveway - back wheel of car went almost completely over victim's body - several people screaming at accused to stop - did not stop but sped away. Legislation Cited: Crimes Act 1900, s 33(1)(b), 35(2), s 52AB(2) Category: Principal judgment Parties: Regina (Crown)
Elfatah Yucub El-Haj (Accused)Representation: Counsel:
J H Gibson (Crown)
K Buckman (Accused)
File Number(s): DC 2011/34753
Judgment
Elfatah El-Haj was drinking late into the night on 28 October 2010. By the early hours of the next morning, he was very drunk. He was with three others, including his friend, Beanika Goak. They were at her unit in Blacktown - sorry - they were at her unit in Doonside. Where was it - it was Doonside Crescent, was it not?
CROWN PROSECUTOR: Blacktown I think.
HIS HONOUR: Yes, it says here in the indictment, it says "at Doonside" but that should read "at Blacktown", should it not? Am I right?
CROWN PROSECUTOR: Doonside Crescent, Blacktown. It might be that it should read "Blacktown", although Doonside and Blacktown obviously in terms of the street address--
HIS HONOUR: Yes, but I think it should read "at Blacktown".
CROWN PROSECUTOR: I think it probably should. I might have to seek your Honour's leave to amend that.
HIS HONOUR: Fine.
They were at her unit in Blacktown. His car was parked outside in the driveway to the unit.
At about 1.30am they were interrupted when a young man called by to see his girlfriend, who was one of Beanika Goak's daughters. He did not come in but stayed outside in his car. Beanika Goak and her daughter, Jessica Bar, went out to see this young man, whose name was Jook Jook.
Elfatah El-Haj joined them outside a short time later. Beanika Goak made an uncomplimentary remark about Mr El-Haj, who got upset over it. For some reason he attributed the remark to Jook Jook. From that moment the whole situation got completely out of hand. Mr El-Haj attacked Jook Jook, who had to run away. Mr El-Haj then took to Jook Jook's car with a hammer. Not satisfied with the damage he had caused with the hammer, he drove the car into a tree several times.
By this time another of Beanika Goak's daughters had come out. She was Elizabeth Bar. There might have been a fourth woman and there was another man. These were the other two drinkers. Beanika Goak and the girls were screaming at Mr El-Haj to stop but he kept going in his drunken, destructive and misdirected rage.
By then Mr El-Haj began to realise how much trouble he was in. He had to get away before the police came. He got into his car and reversed at speed out of the driveway on to the road. In the course of his reverse he hit Beanika Goak and she was very badly injured. He did not stop but sped away.
Out of those circumstances the police charged Mr El-Haj with several offences and the DPP presented an indictment against Mr El-Haj the week before last before me. It contained three counts. The first count was that he inflicted grievous bodily harm on Beanika Goak with intent to cause grievous bodily harm. That is an offence against s 33(1)(b) of the Crimes Act 1900. The second offence is that he drove his car in a manner dangerous to another person whereby the car was involved in an impact, as a result of which grievous bodily harm was occasioned to Beanika Goak. That was an offence against s 52A(3)(c) of the Crimes Act. The second offence was stated on the indictment to be an alternative to the first count. The count numbered 2 but the third count on the indictment was an offence of driving a car while it was involved in an impact occasioning grievous bodily harm and - knowing that impact had occurred - that Mr El-Haj failed to stop and assist.
There is a statutory alternative to the first count. The first count, as I said, was laid under s 33 of the Crimes Act and s 33(3) relevantly provides that, if I am not satisfied that count 1 is proven but I am satisfied that he had committed an offence against s 35 of the Crimes Act, I may acquit him of the charge in the indictment and find him guilty of the offence against s 35. The relevant offence under s 35 is s 35(2), which provides that a person who causes grievous bodily harm to anyone and is reckless as to the causing actual bodily harm to that or any other person is guilty of an offence.
Both parties elected to conduct the trial before me without a jury and that has occurred over the last couple of weeks, interspersed with other matters that I am conducting here at Penrith.
I have heard all of the witnesses and re-read my notes of their evidence and I have considered the relevant parts of the various exhibits which were tendered and admitted into evidence before me. The question, of course, for me is whether I am satisfied beyond reasonable doubt by the prosecution that Mr El-Haj is guilty of any of the charges to which I have referred.
First I will consider the first count in the indictment which, to remind myself, is the count alleging that Mr El-Haj inflicted the grievous bodily harm which occurred to Beanika Goak on her with intent to bring about that grievous bodily harm.
I have found it convenient when considering that offence, and the other offences charged, to resolve certain questions which I have posed for myself, which are very relevant to the determination of each of the charges. The first question is whether or not I am satisfied beyond reasonable doubt by the prosecution that Beanika Goak was directly behind the car when it reversed. A second question is whether I am satisfied beyond reasonable doubt by the prosecution that Mr El-Haj in fact had a hammer which he used to damage Jook Jook's car. The third question is whether I am satisfied beyond reasonable doubt by the prosecution that Mr El-Haj had the required intent to commit the crime, despite his alcohol intake. Involved in resolving these matters is also the question of what parts of Mr El-Haj's evidence I accept or reject.
Dealing with the first issue, there is a live question as to where Beanika Goak was standing when she was hit. She and her daughters, Jessica and Elizabeth Bar, were all outside and in a position to give evidence about where she was standing. Essentially, without going into exact detail, they each had Ms Goak in a position which was directly behind the car, so that when it reversed it hit her very quickly. The issue is controversial because one of the witnesses who was called by the prosecution was a neighbour named Catalina Briceno. Catalina Briceno gave evidence that Ms Goak was in fact standing on the road, not on the driveway directly behind Mr El-Haj's car. She was in a position on the road which she, Ms Briceno, marked on photograph 3 in exhibit A.
It is important to resolve the question of where Ms Goak was standing because if I accept the evidence of Ms Goak and her daughters then it counts very much against Mr El-Haj so far as his intent was concerned. They gave evidence to the effect that he either looked at Ms Goak or looked in his rear view mirror and, I would infer, could hardly help but see her before he reversed. It was therefore inevitable that he would hit her and I would readily infer that he intended to hit her when he reversed. On the other hand, if I accept Ms Briceno's evidence or if Ms Briceno's evidence provides me with a doubt about the other evidence then there is a question about where Ms Goak was standing. If she was standing off the driveway and on the road then it is more difficult to conclude that Mr El-Haj intentionally drove into her. She was further away from his car and less likely to be able to be seen, being away from the source of light which was coming from the units that he was getting away from.
Mr J H Gibson, who appeared as Crown Prosecutor, argued that I should accept the evidence of Ms Goak and her daughters. They were the closest to the scene. They were all outside. Jessica and Elizabeth Bar were both sober. The lighting, he argued, was good or good enough. He argued that Beanika Goak was found by the police and the ambulance officers near the gutter between the driveway and the road. He argued that it was unlikely that she was moved there. This supported the argument that she was indeed behind the car and when she was, she was knocked back in the same direction that the car was travelling rather than being out on the road and away from the course that the car at first took when it reversed directly backwards.
Mr Gibson argued that Ms Briceno's evidence does not fit in with the other evidence and therefore need not be a source of doubt for me. He pointed out that she was woken from her sleep and that her account was inconsistent with the accounts given by Ms Goak and her daughters. He argued that Ms Briceno's narrative was in complete contrast to the other witnesses. Despite looking out her own window onto the scene below there were certain parts of the sequence of events which she gave no account of. They included seeing Mr El-Haj get out of Jook Jook's car and go to his own car. There was, according to the other witnesses, an exchange which occurred at the boot of Mr El-Haj's car between him and Ms Goak before he got into the car. That exchange and its location was very important for the prosecution, Mr Gibson argued, because it placed Ms Goak directly behind and in line with the direction of the car.
Mr Gibson argued that Ms Briceno's evidence does not fit in with the other evidence and it need not cause me to have a doubt about where Ms Goak was standing. On the other hand, however, Ms Briceno had what I would regard as a bird's eye view of what happened. The place from which she was looking is marked on exhibit L. She looked from her bedroom window directly looking down over the driveway from which Mr El-Haj drove his car. There was no evidence that she was suffering from any incapacity which might have been brought about by alcohol as was affecting Ms Goak. She was not in a state of panic or near hysteria which affected Elizabeth and Jessica Bar, quite understandably because of the events which they witnessed involving their mother. I thought Ms Briceno gave her evidence thoughtfully and carefully. She said that Beanika Goak was standing at the entrance on the road but near the entrance to her (Ms Briceno's) driveway so in effect Ms Briceno was looking straight down at Ms Goak. In addition, so far as Mr Gibson's argument about Ms Goak being found at the entrance to the driveway, part of his argument was that it was unlikely that she was moved there but Ms Briceno's evidence included an account that a man and a woman tried to move Ms Goak.
It is true that her narrative is, as Mr Gibson says, incomplete but on the other hand she may simply not have seen some of the events which others saw. She said that when she first saw Mr El-Haj he was getting into his car. She had been, before then, watching Jook Jook's car. That was the centre of her attention. She may not have been necessarily closely following Mr El-Haj's movements because no-one was to know at that stage what was about to happen. Ms Briceno had placed Beanika Goak about eight metres from the back of Mr El Haj's car. She, Ms Briceno, thought that the people outside included Beanika Goak's two daughters and Beanika Goak together with, she said, two ladies. She said they were all screaming at the car leaving.
Ms Briceno's evidence leaves me with reservations about the intention necessary to satisfy me beyond reasonable doubt of Mr El-Haj's guilt of count 1 in the indictment. Had Ms Goak been standing directly behind his car then I would have no doubt that he knew that she was there and intended to hit her when he reversed but as a result of Ms Briceno's evidence I have reservations about where she was standing and I find him not guilty of count 1 on the indictment.
Before moving to the statutory alternative I will consider some of the other questions which I have posed for myself. One of the questions is whether I am satisfied beyond reasonable doubt that Mr El-Haj had a hammer. I appreciate that I may have imposed too high a standard on myself but nevertheless I propose to approach the question in that way. I am satisfied beyond reasonable doubt that Mr El-Haj had a hammer that he used to damage Jook Jook's car. I am so satisfied mainly because of two contemporaneous accounts of those events. Both Jessica Bar and Elizabeth Bar phoned the emergency services on triple 0. I listened to recordings of their phone calls. Both young women were understandably in considerable distress. Both of them referred to Mr El-Haj using a hammer to inflict the damage on Jook Jook's car. Another reason that I accept that he had a hammer is that the witness Jook Jook was certain that he saw Mr El-Haj with a hammer. I was impressed also by this witness. His evidence was given in a calm and deliberative manner as well as thoughtfully. He was clear about what he knew and what he did not know. Additionally another witness, Mary Pul, one of the drinkers in the unit, confirmed Beanika Goak's evidence that Mr El-Haj had brought the hammer out during the evening to fix a curtain which was inside the unit. Finally, I accept Mr Gibson's submission that a photograph (number 18) in exhibit N shows cracks in Jook Jook's car which are consistent with a hammer being used to inflict the damage to the car.
For those reasons I reject Mr El-Haj's account given in evidence when he was called by Mr K Buckman of counsel to give evidence, that he had no hammer with him. In addition, Mr El-Haj claimed that Beanika Goak was in front of him when he got into the car. I reject that evidence as well. It is inconsistent with all of the other eye witnesses. All of them have Beanika Goak behind the car, albeit in different places. The most reliable witness, Catalina Briceno, has her well behind the car and on the road.
Mr Gibson argued that a rejection of Mr El-Haj's account of not having a hammer would have two consequences. One is that it would affect any finding I make about Mr El-Haj's credibility. The second is that it goes to Mr El-Haj's guilt in that it demonstrated a consciousness by him; it was behaviour demonstrating a consciousness of guilt. He deliberately wished to distance himself from having the hammer because, according to Beanika Goak and her daughters, the last thing he did before getting into the car was to put the hammer back in the boot and engage in an exchange with Beanika Goak. It follows that he must have known that she was still behind the car. I find it unnecessary to decide whether or not my finding that he did have a hammer goes to his consciousness of guilt. However it does affect his credibility. In my opinion he was not telling the truth when he said that he did not have a hammer and when he said that Beanika Goak was standing in front of him when he reversed his car.
I will now consider the question of the extent to which his alcohol intake affected Mr El-Haj's capacity to form an intention. Although I have found him not guilty of count 1, it remains, Mr Gibson fairly acknowledged, a factor relevant to my determination of the statutory alternative to count 1. I accept Mr Gibson's submission that Mr El-Haj's state of intoxication was not such that it prevented him from forming, sorry, from making decisions and observations and assessments. He had, in his exchange with and assault of Jook Jook, managed to disarm Jook Jook who had picked up something to fight against Mr El-Haj with. Mr El-Haj acknowledged that when he left the driveway he deliberately chose to leave the lights of his car off so that Jook Jook would not see his numberplate. I accept that he deliberately got the hammer which he had earlier used in order to deliberately make as much damage as he could to Jook Jook's car. In addition he formed the intention to drive the car into a tree, to make the damage more complete. Mr El-Haj himself acknowledged in evidence that he has been more intoxicated on other occasions than that occasion. He was able to drive away from the scene and make whatever decisions were needed in managing the vehicle to get back to his girlfriend's place. Of course I have no evidence of how he was driving but he had the capacity to get from the scene to another suburb where he said that he had gone to after leaving Blacktown.
Before returning to consider the statutory alternative to count 1, I should acknowledge that I also accepted Mr Buckman's submission, I should record, that I also accepted Mr Buckman's submission about Ms Briceno. I agree with his submission that she was an impressive and reliable witness and that she had, as he described it, a grandstand view. It means her evidence, as Mr Buckman argues, makes it unlikely that his client saw Ms Goak when he reversed.
I agree with him about Elizabeth Bar and Jessica Bar being in a highly emotional and hysterical state on the phone, I repeat, for very understandable reasons and I accept that that must have affected the reliability of their recollection. They would have been, as he said, traumatised. I accept that Beanika Goak's recollection would have been affected by the amount of alcohol she had consumed. She herself acknowledged that she had consumed a certain amount. Others referred to her, and there was other evidence, as being significantly intoxicated.
I also have taken into account that Mr El-Haj's rage seemed mainly to be directed against Jook Jook. His main preoccupation seemed to be wanting to get away from the scene and from the police who would certainly be coming. As Mr Buckman pointed out, there did not appear to be any significant evidence of hatred or ill will directed specifically at Beanika Goak. His main damage seemed to be inflicted on Jook Jook's car.
Before considering the statutory alternative, I will consider count 2 which essentially charges Mr El-Haj with leave the scene but knowing that he had caused someone grievous bodily harm. Once again, Ms Briceno's evidence I accept. She did see the car go up when it hit Ms Goak. As is obvious and as Ms Briceno said, "Ms Goak is a lady, is a woman of a large stature." I am satisfied from the evidence that one of the back wheels of Mr El-Haj's car went over her body; almost completely. It was clear also from her evidence that there were a number of people who were screaming at Mr El-Haj to stop. Mr El-Haj himself acknowledged that he knows when he goes over a speed hump. Mr Buckman argued that there is a natural bump where the gutter meets the driveway and that perhaps in his intoxicated state his client thought that he had gone over that natural bump. I do not find that argument convincing. The evidence in the photographs does not demonstrate or satisfy me that the bump was of any significance at all and no greater than the normal process of reversing from a driveway down a slight slope onto the road. The bump which he would have experienced in going over Ms Goak would have been far more significant. When this is considered together with the people who were yelling at him to "stop" and his own acknowledgement that he knows when he goes over a speed hump, I am satisfied beyond reasonable doubt that he is guilty of count 3, sorry, count 2 in the indictment.
I now turn to consider the statutory alternative to count 1, which arises under s 35 of the Crimes Act. An injury is caused recklessly or the injury in this case was caused recklessly if I am satisfied beyond reasonable doubt by the prosecution that Mr El-Haj realised that grievous bodily harm may possibly be inflicted upon someone by his actions if he went ahead and acted as he did in any event. The prosecution has to satisfy me beyond reasonable doubt that he actually thought about the consequences of his act and at least realised the possibility that grievous bodily harm might occur if he proceeded as he did.
I do not accept Mr El-Haj's evidence that he was reversing out of the driveway at normal speed. That is inconsistent with the evidence of Beanika Goak, Elizabeth Bar and Jessica Bar. In addition, he himself was furious and angry and desperate to get away before the police came. He acknowledged as much himself. A witness who was viewing from some nearby units, a Ms Huia, actually heard the thud - or I accept actually heard the thud of the car hitting Ms Goak, but before the thud she heard a screech and then she said she saw what I accept to be Mr El-Haj's car as it sped by. Hearing the screech before the thud - and in this regard I accept Mr Gibson's submission - is consistent with a speedy reverse before the impact and speeding away also suggests the intention to get away and is consistent with a more speedy reverse beforehand.
Mr El-Haj reversed in circumstances I am satisfied where there were at least three people outside and in the vicinity, although Jook Jook had left. I reject his account that Ms Goak was standing in front of him. If, as he said, he looked into the rear view mirror and saw nothing he knew then that he could not see where people were. Even if he did not look in the rear view mirror he still did not know where they were. In cross-examination he himself said, against his own interests, that he did not know where Jessica Bar was standing.
I am satisfied beyond reasonable doubt that he knew that driving as he did at the speed that he did out of the driveway would cause someone grievous bodily harm if he hit them. The fact that he claims that he looked in his rear view mirror indicates that he turned his mind to the possibility of causing some damage. He was thinking clearly enough to open the car with his keys on remote and he himself acknowledged that there were maybe two or three people in the vicinity of the driveway.
I am satisfied beyond reasonable doubt that he turned his mind to the possibility that there was somebody there but was in such a state and desperate to get away that he proceeded anyway. He reversed at speed, admittedly without knowing where one of the persons at the scene was, and also knowing that there was more than one person. He reversed out onto the road at speed and then forward again reckless in my opinion as to whether or not that action would cause grievous bodily harm which he knew would happen if he has hit someone in that process.
I am satisfied beyond reasonable doubt that Mr El-Haj is guilty of the alternative to count 1, which is the count under s 35 of the Crimes Act.
HIS HONOUR: Would you stand up, Mr El-Haj.
Mr El-Haj, I convict you of causing grievous bodily harm to Beanika Goak, being reckless as to causing her grievous bodily harm, and I convict you of the offence of driving a car when that car was involved in an impact with Beanika Goak, which caused her grievous bodily harm, and knowing that that impact had occurred failing to stop and assist.
HIS HONOUR: Have a seat, Mr El-Haj.
I add, for completeness, although it was not necessary to decide the alternative count pleaded on the indictment, that I would have been satisfied beyond reasonable doubt of his guilt of driving in a manner dangerous to another person whereby his car was involved in an impact bringing about grievous bodily harm to Beanika Goak. The circumstances in which he drove the car leave me in no doubt that his control and management of the car and in the circumstances in which he drove it with the people around and in the drunken condition that he drove it amounted to driving in a manner dangerous.
FOR PROCEEDINGS AFTER CONVICTION SEE SEPARATE TRANSCRIPT
**********
Decision last updated: 02 September 2013
0
0
1