Police v El-Ghazzawy [2016] NZDC 18718 (3 June 2016)

Last Updated: 25 January 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-007889 [2016] NZDC 18718

NEW ZEALAND POLICE

Prosecutor

v

TAYYIB EL-GHAZZAWY

_Defendant

Hearing:	3 June 2016
Appearances:	L Mafi for the Prosecutor R Smith for the Defendant
Judgment:	3 June 2016

_{ORAL JUDGMENT OF JUDGE S A THORBURN}

[1] There are two matters here. They arise out of the evening of 16 going into

17 September about midnight, the charging documents say 17 September, the police evidence refers to 16 September about midnight. That matters not. 16 September midnight, 17 September early hours of the morning is a matter of no consequence, the charging document says 17 September. That the defendant Tayyib El-Ghazzawy, assaulted his partner, the mother of his child, Ruqayyah Bousaid, and he assaulted their child, Hanaa Bousaid. Hanaa being about three weeks old. Ruqayyah has not given evidence.

[2] The case is built around two dimensions of evidence for the prosecution:

(1) The viva voce evidence of Anabella (inaudible 16:57:25) Ashley, a person who lived a house or two away from the house in which the

NEW ZEALAND POLICE v TAYYIB EL-GHAZZAWY [2016] NZDC 18718 [3 June 2016]

incident took place, the house where the defendant, Ruqayyah and tiny Hanaa were.

[3] Ms Ashley’s evidence is put forward as direct eye witness evidence from a person who was present at the alleged actus reus and present to be within inches or perhaps feet of distance from the actions alleged. The actions alleged are these. That Ms Ashley, at the invitation of Ruqayyah, came to the house to observe and provide help, Ruqayyah being anxious and upset because the little one, Hanaa, appeared to be unwell, perhaps even not breathing. Ruqayyah, a first time mum I think Ms Ashley said she would be, had come next door for help and advice and Ms Ashley came. Accordingly, Ms Ashley’s evidence was that when she came to the front door of the house the defendant was there blocking her way in. He was questioning why Ms Ashley was there she says, and saying things like “the baby is fine.”

[4] Ruqayyah, she says, pushed him out of the way and Ms Ashley went in to have a look at the baby and there took over some attention to the baby, who she found in the one bedroom flat or house, her eyes rolling back and she checked for a heartbeat and breathing. She did pick up the baby, she says and noticed that she was breathing slowly, that she says was her main concern. She says she started talking to the baby and rubbing her back, putting her on her side at whereupon the defendant, her evidence is, yanked the baby from her and he and Ruqayyah started an argument. They were arguing and Ms Ashley says the defendant was saying things like “he’s a better doctor than any ambulance, Hanaa has got me,” he, she says gave the baby to Ruqayyah who in turn gave the baby to Ms Ashley.

[5] Whilst Ms Ashley is holding the baby this is her evidence, he, the defendant, smacked the baby in the face, she says pretty hard. It was side on with an open hand, pretty hard on a three week old baby. She thinks it was just the once and she demonstrated. The baby was in her hands or arms and so on her testimony the point I made early about distance is to be made again. There could not really be any closer capacity to observe what was going on than Ms Ashley. Ms Ashley gave the baby back to Ruqayyah. She and the defendant were still disagreeing and arguing. Ruqayyah said something and he grabbed the baby from her hands. She then says,

and this constitutes the second charging document, which is that he assaulted Ruqayyah. “He leaned back, she described a cabinet on the wall, the description being suggested that he was leaning back against the cabinet so that his body would be supported and in full force kicked the back of her, Ruqayyah’s body, her bum projecting her so she came flying into me, I caught her.” At that she said, “I’ve had enough” and she went next door to call the cops.

[6] The case then is added to in terms of evidence by the evidence of Constable Boyd. Constable Boyd was on duty that night with his buddy Constable Wick and as a result of information from Comms they went around to the [location deleted] address which was where the defendant and these others were. There was a large group of people in the street and he said he observed a lady holding a very young child. Constable Wick went and made the first observations there. It was agreed that an ambulance should be called as soon as possible.

[7] A couple of men came into the scene from down the road out of the [location deleted]. One of them was the defendant. Ms Ashley had described the defendant as “stoned, weird, she could smell alcohol.” Constable Boyd spoke to the defendant and gave a bit of a description of his demeanour, including he too could smell alcohol. Constable Boyd’s evidence went on to note the conversation that took place then between he and the defendant about what was happening, or what had happened and said he had been trying to help his baby. He did say, according to Constable Boyd, that the neighbours and the family and friends did not like him and had attacked him.

[8] Constable Boyd pointed out that he was trying to clarify to the defendant why the police were there and meaning of course, in particular with regard to any actions of domestic concern, but he said and I think his words were, “Well actually he didn’t manage to get into his speech was jittery and he was fixated on what had been done to him.” However, he, Boyd, persisted and gave evidence of what then is now a notebook entry of interview. Amongst other things there is reference to the neighbours not liking him, but, “Did you slap the baby?” and I am just going to narrate what I have got here from his evidence, “No, boss I picked the baby up off my misses, boss, she was screaming, I take the baby slap her face two times, her

eyes rolled back.” Question, “Did you kick your partner?” And he said, “No, I take baby from her because she’s screaming she won’t stop, I take baby from her in my hands and I boot her out boss.” “Did you kick your partner?” Answer, “I push her out.” “Did you slap your daughter?” “No, I slap her, my fingers two of them, her eyes roll into her head.”

[9] So, the case for the police is to summarise then based upon the direct evidence of the two alleged incidences of offending. By Ms Ashley first, at very close quarter’s allegation should Ms Ashley be believed of him slapping the child’s face the side of her cheek with an open hand whilst she, the child, was in the arms of Ms Ashley. And then a little after that having grabbed or snatched the child into his own arms leaning back and with a kick to the backside of Ms Bousaid plummeting her or projecting her, Ms Ashley saying “made her go flying,” into her, she caught her. Ms Ashley was asked, “Well is it possible that she tripped over and fell into you?” “No, he booted her into me I saw it, it was a full boot.” And then the notebook entries which are proffered of course as being tantamount to admissions.

[10] Mr El-Ghazzawy has given evidence. He has had the assistance of an interpreter so we have heard his evidence primarily by him having the support of an interpreter so that he can answer in his first language. I this it was Farsi. And so he has said, “Yes, I and Ruqayyah are first time parents, our baby was unwell. Her face changed she wasn’t breathing, we lost our mind. Again repeating this is the first time for both of us, we got worried.” When it was put to him about Ruqayyah going to the neighbours house, you remember, he did say I gather from his answer that “he could not remember exactly, again resorting to the child we were concerned and we wanted to call the police.”

[11] Of course he acknowledged that Anabella, that is Ms Ashley, came over but he denied that he blocked her in, blocked her from entry, so he let her in like he always does and was talking to her “please help us.” When it was put to him about Anabella holding the baby he said he could not remember exactly. And that as Anabella had said, he had wacked the baby’s face, he at that point then responded with answers and demonstrations which were to the effect that “I saw the baby wasn’t breathing and with two fingers I touched the baby’s face say, Hanaa, Hanaa

please wake up.” The baby breathed, he felt relaxed and comfortable then. An act he describes, if he is to be believed, perhaps even of gentleness touched with tenderness.

[12] He denied anything more about the incident as alleged by Ms Ashley. He did not kick her. He then said he wanted to help her because she became unconscious and at that point then an interesting development emerged from his narrative that he did seem to know what Ms Ashley was talking about, but described it as Ruqayyah in the stress of everything fainting, my words, interpreting what I think he was saying, that is losing consciousness and just sliding down onto the floor in a collapse. In fact he said I think “I’ve noted she couldn’t hold herself she collapsed.” So, that is his scenario that he had not been drinking. That he did not smack the baby. Under cross-examination when being asked “well why did he tell the police that he had slapped the baby” he said, “Yes, to wake her up. The main reason was to wake her up.” He denied saying such presumptuous things as, “That he was a better doctor than the ambulance” and so on.

[13] So, we have got a scenario here on the one hand that looks like the conduct of a man in all probability effected by alcohol, alcohol having been smelt by the two witnesses who the police have relied upon, with Ms Ashley if she is a truthful witness, describing an arrogant and belligerent and controlling person and attributing ridiculous comments to him, such as “he’s a better doctor and the ambulance people” et cetera that his arrogance and belligerence was first demonstrated by preventing her or trying to prevent her coming into the house and asserting that the baby is fine which of course is completely against his own responses to the police about the concern about the baby.

[14] He then would have the Court believe that Ms Ashley has got it so seriously wrong that she cannot be believed because he, with concern and as I have said, trying to interpret him fairly in the way in which he wanted to explain what he did around the slapping, that it was not anything like that, it was just two fingers gently touching the baby’s face and saying, “Hanaa, Hanaa please wake up.” Added to by the pathos of a little story about his stressed and troubled partner so worried about the baby that she fainted really or collapsed and fell onto the floor.

[15] So that narrative simply is against Ms Ashley’s on the basis that Ms Ashley is just an absolute liar who has come to exaggerate the truth for some reason and distort the narrative in a Court under oath for whatever reason.

[16] Of course Ms Ashley’s confidence in her evidence was utterly unshaken and the way in which it works is of course the police or prosecuting authority have a duty and obligation to prove beyond reasonable doubt through the primary evidence of their own witnesses and if, under cross-examination of a police witness and/or under the Court factoring in specific defence evidence if evidence is given, such as has it has been in this case, the combined effect of that raises a reasonable doubt about Ms Ashley, then the defendant would have the benefit of it, but this case just falls so majestically short of that. Ms Ashley has told the truth, of course she has and with the greatest of respect to Mr El-Ghazzawy, I just think he is an absolute liar. I do not think he would know the truth if he fell over it.

[17] So, the evidence is clear, for some reason, mysterious as it may be, inexplicable, probably in drunkenness but arrogance in the extreme, belligerence and as I have said controlling, he has just reacted and acted in a way which is utterly unacceptable in the stress of a crisis of a domestic nature of a tiny little baby three weeks old struggling to breathe, eyes rolling and, he kicks the mother out of the way because he wants to be in control of everything; and furthermore for some reason that is beyond understanding, he slaps the little one’s face, perhaps in some misguided way thinking that it will make her better, I do not know where on earth that could come from, but he is shockingly caught with the combination I expect of alcohol, bad temper, ill discipline and just uncontrolled behaviour.

[18] I accept utterly what Ms Ashley has said and the matters are proven.

S A Thorburn

District Court Judge