El Seidi v R [2021] NSWCCA 303

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: El Seidi v R [2021] NSWCCA 303 Hearing dates: 26 November 2021 Date of orders: 26 November 2021 Decision date: 17 December 2021 Before: Brereton JA at [1]; Wilson J at [22]; Ierace J at [23] Decision: (1) Grant leave to appeal insofar as it be required; (2) Allow the appeal; (3) Quash the conviction and sentence imposed in the District Court; (4) Order that there be a retrial; (5) List the matter for arraignment in the District Court on Friday 10 December 2021; and (6) Grant bail to the appellant pending his retrial upon the conditions listed in the document annexed to the Crown submissions initialled by me, dated this day and placed with the papers, being that: (a) he report daily to Bass Hill Police Station between 6:00am and 8:00pm; (b) he reside at X/XX Batt Street, Sefton NSW 2162 and not leave that address unless in the company of his father Hussein El Seidi, and not leave that address at all between the hours of 8:00pm and 6:00am; (c) he be of good behaviour; (d) he not go near or contact, or try to go near or contact (except through a legal representative), Tahlia Mardini or any member of her family, or any member of the family of Tegan Galea-Elson; (e) he not consume any drug not prescribed to him by a medical practitioner; (f) he not drive any vehicle or operate any machinery either on a road or off road or be seated in the front seats of any vehicle; and (g) the applicant's father provide a $4,000.00 surety. Catchwords: CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Driving offences – Dangerous driving occasioning death – Dangerous driving occasioning grievous bodily harm – Where Crown concedes that trial judge misdirected jury as to onus and standard of proof in respect of voluntariness – Where real prospect that jury did not properly consider whether Crown proved beyond reasonable doubt that applicant not driving involuntarily due to epileptic seizure – Appeal allowed – Convictions quashed – Retrial ordered CRIME – Bail – Appeal bail – Where appeal against conviction successful – Bail not opposed – Bail granted subject to conditions Legislation Cited: Bail Act 2013 (NSW), ss 18, 22 Crimes Act 1900 (NSW), s 52A Criminal Appeal Act 1912 (NSW), ss 5, 6 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Hadchiti v The Queen (2016) 93 NSWLR 671; [2016] NSWCCA 63 Lin v Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13 R v Gillett [2005] NSWDC 20 R v Holman [1997] 1 Qd R 373; [1996] QCA 262 Category: Principal judgment Parties: Yassin Hussein El Seidi (Appellant/Applicant) Crown (Respondent) Representation: Counsel: D Carroll (Appellant/Applicant) E Balodis (Respondent)