El Seidi v R [2021] NSWCCA 303

El Seidi v R [2021] NSWCCA 303

The trial judge's directions incorrectly and confusingly suggested that the appellant had to prove beyond reasonable doubt that he suffered a seizure and lost control, and then required the jury to choose unanimously between voluntary and involuntary driving. The correct question was whether the Crown had proved beyond reasonable doubt that the appellant was driving voluntarily, or otherwise proved dangerous voluntary driving immediately before any involuntary driving. There was a real prospect the jury did not properly consider whether the Crown had excluded beyond reasonable doubt that the appellant suffered an epileptic seizure immediately prior to the accident such that he was driving...

Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Criminal Appeal Against Conviction and Bail Application / Application for Leave to Appeal and Appeal in the NSW Court of Criminal Appeal From District Court Convictions; Short Reasons for Orders Made on 26 November 2021
Outcome
Leave to appeal granted insofar as required; appeal allowed; convictions and sentence quashed; retrial ordered; bail granted pending retrial subject to conditions.
Legal Topics
['appeal Against Conviction' 'miscarriage of Justice' 'jury Directions' 'onus and Standard of Proof' 'voluntariness' 'dangerous Driving Occasioning Death' 'dangerous Driving Occasioning Grievous Bodily Harm' 'epileptic Seizure' 'appeal Bail']
['criminal Law' 'criminal Procedure' 'bail'] ['appeal Against Conviction' 'miscarriage of Justice' 'jury Directions' 'onus and Standard of Proof' 'voluntariness' 'dangerous Driving Occasioning Death' 'dangerous Driving Occasioning Grievous Bodily Harm' 'epileptic Seizure' 'appeal Bail']

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Procedural Posture

Criminal Appeal Against Conviction and Bail Application / Application for Leave to Appeal and Appeal in the NSW Court of Criminal Appeal From District Court Convictions; Short Reasons for Orders Made on 26 November 2021

Legal Issues

  1. 1 ['Whether the trial judge misdirected the jury as to the onus and standard of proof concerning whether the appellant was driving voluntarily or involuntarily due to an epileptic seizure.' 'Whether the misdirection occasioned a miscarriage of justice requiring the convictions and sentence to be quashed and a retrial ordered.' 'Whether Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 or the proviso in Criminal Appeal Act 1912 (NSW), s 6 should be applied.' 'Whether bail should be granted pending retrial after the appeal succeeded.']

Ratio Decidendi

The trial judge's directions incorrectly and confusingly suggested that the appellant had to prove beyond reasonable doubt that he suffered a seizure and lost control, and then required the jury to choose unanimously between voluntary and involuntary driving. The correct question was whether the Crown had proved beyond reasonable doubt that the appellant was driving voluntarily, or otherwise proved dangerous voluntary driving immediately before any involuntary driving. There was a real prospect the jury did not properly consider whether the Crown had excluded beyond reasonable doubt that the appellant suffered an epileptic seizure immediately prior to the accident such that he was driving...

Court Disposition

Leave to appeal granted insofar as required; appeal allowed; convictions and sentence quashed; retrial ordered; bail granted pending retrial subject to conditions.

Orders

  • ['Grant leave to appeal insofar as it be required.' 'Allow the appeal.' 'Quash the conviction and sentence imposed in the District Court.' 'Order that there be a retrial.' 'List the matter for arraignment in the District Court on Friday 10 December 2021.' 'Grant bail to the appellant pending his retrial upon the...