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) Solicitors: CBD Criminal Defence Lawyers (Appellant/Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2018/504 (Appeal) 2021/238113 (Bail Application) Decision under appeal Court or tribunal: District Court – Sydney Registry Jurisdiction: Criminal Citation: [2020] NSWDC 375 Date of Decision: 17 July 2020 Before: M L Williams SC DCJ File Number(s): 2018/504 Judgment 1. BRERETON JA: Upon the hearing of this appeal on 26 November 2021, the Court made orders, which were not opposed by the Crown, granting leave to appeal, allowing the appeal, quashing the conviction and sentence imposed on the appellant in the District Court and ordering a retrial, and granting bail upon certain conditions pending the retrial. The Court indicated that it would in due course deliver short reasons for those orders. These are those reasons. 2. On 12 March 2020, following a trial by jury which commenced on 3 March 2020, the appellant was convicted in the District Court of dangerous driving occasioning death (Crimes Act 1900 (NSW) ["Crimes Act"], s 52A(1)), and dangerous driving occasioning grievous bodily harm (Crimes Act, s 52A(3)), and later sentenced to an aggregate term of imprisonment of five years with a non-parole period of three years and three months. He seeks leave to appeal to this Court, pursuant to Criminal Appeal Act 1912 (NSW) ("Criminal Appeal Act"), s 5, against his conviction, his sole ground of appeal being that the trial judge erred in failing adequately to direct the jury as to the onus and standard of proof, occasioning a miscarriage of justice. The respondent Crown concedes that there was such error, and that a miscarriage of justice ensued. 3. On 1 January 2018, at about 12:10 am, the applicant, who then was eighteen years old and held a provisional driver's licence, was driving a red Toyota Starlet in a westerly direction in the kerbside lane of Brunker Road, Yagoona, which had two lanes in each direction. The deceased and the surviving victim were his passengers. He began to merge into lane two, but struck the rear of a parked utility truck. One passenger lost her life, and another suffered a traumatic brain injury. 4. There was evidence that the applicant was speeding, and tendency evidence that he had a tendency to speed and overtake dangerously. There was also evidence that Tramadol and Diazepam, which was detected in his blood, would be expected to occasion significant impairment. However, his case was that he suffered from an epileptic seizure immediately prior to the accident. 5. There was undisputed evidence that, after the accident, he suffered from epilepsy. Whether he had an epileptic seizure immediately prior to the collision was the subject of contested expert evidence at the trial. The Crown's expert witness Professor Cook opined that it was possible but unlikely that the accident was explained by a seizure, whereas the defence's expert Professor Somerville opined that observations of the appellant after the accident were consistent with an epileptic seizure. 6. The Crown put its case primarily on the basis that the applicant drove dangerously through a combination of speed, failing to keep a proper lookout, and ingesting of a combination of drugs. The applicant's case that he suffered an epileptic seizure at the time of the impact raised the issue of whether he was driving voluntarily, in response to which the Crown advanced alternative cases that: 1. even with the possibility of an epileptic seizure, the applicant was nonetheless driving voluntarily; or 2. if the applicant was not driving voluntarily at the time of the collision, "his driving immediately before that was dangerous because in those circumstances there was a risk that he was suffering a seizure or a medical event and not … able to control his car". This appears to be a contention that, immediately before the epileptic seizure, the applicant was driving voluntarily and dangerously because of the risk that he might suffer a seizure, and that he did not have an honest and reasonable albeit mistaken belief that his driving was not dangerous. 1. In summing up, the trial judge appropriately referred to the need for the Crown to prove the elements of the offence, and correctly directed the jury that the applicant bore no onus, notwithstanding that he had called evidence from Professor Somerville, but that it was for the Crown to satisfy them that Professor Sommerville's evidence "should not be accepted as a version which could be true". In connection with the elements of the offence, the jury were provided with a document, relevantly as follows: "Count 1 1) On 1 January 2018 at Yagoona, NSW 2) Yassin El Seidi did drive a vehicle, namely a Toyota Starlet, registration BM-03-AA 3) That vehicle was involved in an impact, namely an impact with a parked Mazda utility; 4) That impact caused the death of Tegan Galea Elson, and If the Accused was driving voluntarily at the time of impact (you must be unanimous): 5) At the time of the impact, Yassin El Seidi was driving the vehicle in a manner dangerous to other persons. OR If the Accused was driving involuntarily at the time of impact: 6) At the time of the impact, Yassin El Seidi was driving the vehicle in a manner dangerous to other persons. 7) At the time of the driving dangerously the accused had no honest and reasonable belief that it was safe to drive." 1. A relevantly identical document was provided in connection with Count 2, save that paragraph 4 referred to grievous bodily harm to the other victim. 2. The extended unanimity direction which preceded paragraph 5 was inapt: it was open to leave the Crown's alternatives to the jury as alternative bases for conviction without the need for unanimity as to which basis, so long as there was unanimity as to the verdict. However, so far as it went, this was if anything favourable to the applicant. As set out above, the written direction which preceded paragraph 6 did not include a requirement for unanimity as to whether driving was involuntary. 3. Orally, after discussing the first four elements, his Honour said (emphasis added): [1] "You then have to consider whether the accused was driving voluntarily at the time of the impact, that is a unanimous decision that you must reach, if you reach that decision, then you must consider element number 5, that is, that at the time of the impact he was driving the vehicle in a manner dangerous to other people. If you do not conclude that he was driving voluntarily, but that he was driving involuntarily at the time of the impact, that is that he was under the influence of a seizure, then you go on to consider elements five and six. Five is the same as the previous five, that he was driving in a manner dangerous to other people; and six, that at the time of driving dangerously he did not have an honest and reasonable belief that it was safe to drive. I hope that makes the decision process more readily understandable for you, and the same process must be undertaken in relation to the second count on the indictment." 1. In respect of the Crown's alternative case (on the theory that at the time of the impact the applicant was driving involuntarily), his Honour directed the jury that they must consider the position just before the accused had a seizure, "if you do find that he had a seizure". [2] His Honour then proceeded to direct the jury (emphasis added): [3] "If you are satisfied beyond reasonable doubt that he lost control of the car because he lost consciousness by suffering a seizure, you may find that it was dangerous to drive in a condition where he was liable at any time to be overcome by a seizure, however momentarily, while at the wheel of a car. If you find beyond reasonable doubt that he did suffer from a seizure just before the impact, and that this caused him to lose control of the car, then you may have no difficulty in finding her was driving in a manner dangerous shortly before the impact, but that does not determine the issue of the guilt of the accused, because the case for the accused is that he had no reason to believe that he might have a seizure at that point, before losing control of the car. … The position then is that the accused having raised what is in effect an answer to the charges, it is for the Crown to prove to you beyond a reasonable doubt that he did not hold such a belief; or, that if he did hold that belief that it was not reasonable for him to hold that belief in … all the circumstances known to him." 1. Those directions were, with respect, incorrect and confusing. The emphasised passages suggest that to find that the applicant was driving involuntarily, he had to prove beyond reasonable doubt that he suffered from a seizure and lost control as a result. However, it was for the Crown to prove that the driving was voluntary at the time of the impact, and if not, to prove that the driving was voluntary and dangerous immediately before it became involuntary. The jury should not have been directed in terms that suggested that, before proceeding to consider the question of driving involuntarily, they had to be satisfied beyond reasonable doubt that he suffered a seizure. 2. After retiring, the jury sent a note asking, "DO WE NEED TO BE UNANIMOUS THAT THE ACCUSED WAS DRIVING VOLUNTARILY OR INVOLUNTARILY?". An exchange between the jury and his Honour ensued, the effect of which was that the jury were directed that they were required "to reach a unanimous verdict that he is driving voluntarily or involuntarily", and to indicate the answer to that question in their verdict. [4] The jury did so, advising in delivering their verdict that the applicant's driving at the time of the impact was voluntary. 3. That direction presented the jury with a false dichotomy which required them to be satisfied, beyond reasonable doubt, either that he was driving voluntarily or that he was driving involuntarily, whereas, it was for the Crown to exclude, on its primary case, that he was driving involuntarily at the time of the impact. If they were not satisfied beyond reasonable doubt that he was driving voluntarily, the default position was that he must be taken to have been driving involuntarily. Appropriate directions would have been to the effect of the questions posed by Berman SC DCJ sitting as a judge alone in R v Gillett: [5] "● Am I satisfied beyond reasonable doubt that the accused had no form of fit or seizure which would affect his level of consciousness? If I make that finding beyond reasonable doubt I need not go further. However if I am not satisfied beyond reasonable doubt of that matter I will therefore consider the second issue at the heart of this case. ● Even if the accused may have suffered a fit or seizure, am I satisfied beyond reasonable doubt that he was nevertheless driving voluntarily? If I am satisfied beyond reasonable doubt that the accused was driving voluntarily immediately before colliding with the [victim's] car then I need not go further. If however if I am not so satisfied I will consider the third issue at the heart of this case. ● Has the Crown proved beyond reasonable doubt that at a time the accused was acting voluntarily he drove dangerously to other persons and he did not believe on reasonable grounds that it was safe for him to drive or to continue driving?" 1. His Honour posed the crucial question: [6] "Of course there are two competing submissions put to me. The Crown says that the accused's conduct immediately before the fatal collision was voluntary and the accused says his conduct was not. It is not a matter of which submission I prefer, the Crown bearing the onus of proving the guilt of the accused beyond reasonable doubt." 1. The effect of the directions given by the trial judge to the jury, reinforced by the further directions given following the question from the jury, in the instant case, was that the jury were required to choose between the competing submissions, whether the applicant was driving voluntarily or involuntarily. The question should have been whether the jury was satisfied beyond reasonable doubt that he was driving voluntarily. An appropriate direction would have been: [7] "Has the Crown to your satisfaction beyond reasonable doubt excluded the possibility that the accused suffered from an epileptic seizure just prior to the accident". 1. In my opinion, there was a real prospect that the jury, being required to choose between competing contentions each beyond reasonable doubt, did not properly consider whether the Crown had proved beyond reasonable doubt that the applicant had not suffered from an epileptic seizure immediately prior to the accident such that he was driving involuntarily. 2. The Crown properly conceded that Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15, should not be applied, as the error was one in respect of the onus and standard of proof and was thus apt to go to the root of the proceedings, so that leave should be granted despite no exception having been taken at trial. [8] 3. The appellant did not contend that the verdict was unreasonable, and accepted that it would have been open to the jury to accept the evidence of Professor Cook to the effect that an epileptic seizure was not a reasonable possibility. However, as the Crown accepted, such a conclusion was not inevitable, and the trial judge's directions to the jury did not direct them in those terms. This is not an occasion for application of the proviso in Criminal Appeal Act, s 6. 4. The appeal having succeeded and the conviction having been quashed, Bail Act 2013 (NSW), s 22, is no longer applicable, and it is s 18 that is relevant. The applicant does not have to show cause to obtain bail on the charges he faces. Although he was on probation at the time of the offences, he was not on bail or parole. The Crown did not oppose bail subject to certain conditions, to which the appellant agreed. 5. It was for the foregoing reasons that on 26 November 2021 I proposed the following orders: 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: 1. he report daily to Bass Hill Police Station between 6:00am and 8:00pm; 2. 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; 3. he be of good behaviour; 4. 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; 5. he not consume any drug not prescribed to him by a medical practitioner; 6. 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 7. the applicant's father provide a $4,000.00 surety. 1. WILSON J: For the reasons given by Brereton JA I joined in the orders of the Court announced on 26 November 2021. 2. IERACE J: I also agree with Brereton JA. ********** Endnotes 1. Tcpt, 12 March 2020, pp 11[40]-12[42]. 2. Tcpt, 12 March 2020, p 15[52]. 3. Tcpt, 12 March 2020, pp 16[53]-17[56]. 4. Tcpt, 12 March 2020, pp 24[94]-27[129]. 5. [2005] NSWDC 20 at [15] (Berman SC DCJ) ("Gillett"). 6. Gillett at [75] (Berman SC DCJ). 7. Cf R v Holman [1997] 1 Qd R 373 at 378 (Macrossan CJ); [1996] QCA 262, cited in Hadchiti v The Queen (2016) 93 NSWLR 671 at 686-687 [83]-[86] (Leeming JA, Hall and Bellew JJ); [2016] NSWCCA 63 ("Hadchiti"). 8. Cf Hadchiti at 691 [114]-[115], 695-700 [142]-[173] (Leeming JA, Hall and Bellew JJ); Lin v Tasmania (2015) 252 A Crim R 64 at 98 [136] (Porter J; Wood J and Pearce J agreeing); [2015] TASCCA 13. Amendments 23 April 2024 - Publication restriction lifted. 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