Mehajer v Director of Public Prosecutions

Mehajer v Director of Public Prosecutions - [2024] NSWCCA 172 - NSWCCA 2024 case summary — Zoe

[4]

Domestic violence offences

On 10 May 2023 the applicant was convicted for seven domestic violence offences arising from his prior marriage. It is not necessary to set out the details of the offending conduct other than the following high level summary.
In April 2018 the applicant repeatedly punched his former wife, MB, when they were driving in a car. It followed an argument about an item of jewellery that MB had intended to wear. On another day in April 2018 the applicant grabbed and squeezed MB's hand so hard that the screen of the phone she was holding cracked. In June or July 2019 the applicant and MB had an argument, during which he dragged her to the laundry and threatened to kill his mother-in-law if MB ever reported him to the police. On 4 October 2020 the applicant and MB had an argument, during which the applicant grabbed her and put his hand over her nose and mouth so that she was unable to breathe and passed out.
In December and January 2021 the applicant was charged with domestic violence offences arising from the above conduct. He was already in custody for unrelated offences.
The case was eventually listed for trial on 27 March 2023.
The applicant represented himself at the trial. At the commencement of the trial, the applicant applied for a stay on the ground that he was unrepresented and he wished to arrange legal representation. On 5 April 2023 Bennett SC DCJ dismissed the stay application finding that the applicant had not proved that he was indigent. Bennett SC DCJ further found that the applicant was capable of representing himself.
On 12 April 2023 the applicant filed an application for leave to appeal against the refusal of the stay under s 5F(3) of the Criminal Appeal Act 1912 (NSW). On 17 April 2023 the Court (Davies, Ierace and Cavanagh JJ) dismissed the application for leave under s 5F(3): Mehajer v R [2023] NSWCCA 101.
The trial before Bennett SC DCJ proceeded from 19 April until 10 May 2023, upon which date verdicts of guilty were entered by the jury for all counts.

[8]

Further convictions

In addition to the domestic violence offences and the false documents offences, in August 2024 the applicant pleaded guilty to two further groups of offences. They are: 1. the offence of doing an act to pervert the course of justice, namely staging a motor vehicle collision to avoid a court hearing on 16 October 2017 (with a further offence of dishonesty to proceed on a Form 1); and 2. six offences arising from falsely nominating other people as the driver of vehicles in which traffic offences were committed (with a further 10 offences to proceed on a Form 1).
The evidence before the Court on the bail application includes the Indictments which set out the offences to which the applicant pleaded guilty in each of these further cases, together with Statements of Agreed Facts signed by the applicant. The offences are serious offences contrary to provisions of the Crimes Act 1900 (NSW) and the Oaths Act 1900 (NSW) which were enacted to protect the public interest in the proper administration of justice.
These further convictions are listed for sentence on 20 September 2024. Whether a further custodial sentence will be imposed on the applicant and, if so, the length of that sentence is not currently known. On the bail application, the Crown adduced evidence that: 1. the Crown has informed the applicant that it is prepared to submit that the applicant has served sufficient time for the car crash offence as part of the non-parole period imposed by Bennett SC DCJ on 9 May 2024 (which will expire on 18 July 2025); and 2. the Crown does not have a position on the sufficiency of time already served by the applicant for the offences arising from the false nomination of drivers.
It will be a matter for the sentencing judge, but the evidence before the Court on the bail application does not permit a finding that a further custodial sentence will not be imposed on the applicant on 20 September 2024, or even that it is likely that a further custodial sentence will not be imposed. On the contrary, the evidence on the bail application indicates that it is likely that a further custodial sentence will be imposed on 20 September 2024. If so, the applicant will be in custody after 20 September 2024 whether or not the Court should accede to the bail application that was heard on 28 August 2024.

[10]

Domestic violence offences

The applicant's proposed grounds for his intended appeal against his conviction for the domestic violence offences are as follows: "APPLICANT'S GROUND OF APPEAL (CONVICTION) GROUND No.1: The appellant's trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for Counsel to appear for the appellant at the trial with the consequences that, in all circumstances of the case, the appellant was deprived of his right to a fair trial and of a real chance of acquittal; GROUND No.2: The appellant's trial miscarried by virtue of the trial judge's failure to adjourn the trial until the appellant's mobile phones were forensically downloaded; GROUND No.3: The appellant has available to him fresh and new evidence relevant to the complainant's credit; and Ground No.4: The appellant's verdicts were unreasonable and incapable of being support by the evidence[.]"
Should leave be granted, the applicant's proposed grounds for his intended appeal against his sentence for the domestic violence offences are as follows: "APPLICANT'S GROUND OF APPEAL (SENTENCE) GROUND No.1: The total sentence and the non-parole period imposed upon the appellant are manifestly excessive; GROUND No.2: The learned sentencing judge erred in properly applying the appropriate aggregate sentence, and as to considering whether the aggregate was just and appropriate; GROUND No.3: The learned sentencing judge failed to give adequate weight to the onerous condition and the extra-curial punishment to which the applicant has been subjected to; GROUND No.4: The learned sentencing judge failed to give adequate weight to the onerous bail conditions to which the applicant has been subjected to prior to being convicted; GROUND No.5: The learned sentencing judge erred by increasing the balance of term of the sentence imposed on count seven to reflect the finding of special circumstances; and GROUND No.5: The learned sentencing judge failed to give adequate weight to the appellant's 'back-date' period on sentence and therefore failed to consider whether the aggregate was just and appropriate."

[12]

Principles for grant of bail pending appeal

The prior refusal of the bail application by Sweeney J made this an application which the Court could hear, but it is not an appeal from Sweeney J's decision. The Court must consider the application de novo: El-Hilli and Melville v R [2015] NSWCCA 146 at [14] (Hamill J, with whom Simpson and Davies JJ agreed).
Upon the applicant's notices of intention to appeal being filed on 5 August 2024 (with the extension of time granted by the Registrar), appeals against each of the applicant's convictions and the sentence are taken to be pending in the Court: s 10(2)(b) of the Criminal Appeal Act 1912.
Section 22 of the Bail Act provides: 22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision - (a) an offence for which an appeal is pending in the Court of Criminal Appeal against - (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment, (b) an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a). (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified. (3) Subject to subsection (1), Division 2 (Unacceptable risk test - all offences) applies to a bail decision made by a court under this section.
The applicant's application for bail falls within s 22(1)(a). The Court must dismiss the application unless special or exceptional circumstances are established.
Special or exceptional circumstances are to be determined on a case-by-case basis. In R v Khayat (No 11) [2019] NSWSC 1320 at [14], Adamson J said: "The authorities also show that the concept of exceptional circumstances is a flexible one which requires a case-by-case examination. Such circumstances may be constituted by a combination of matters together, features that are subjective to an applicant, features which bear upon the nature of the alleged offence and features which emphasise that the applicant is otherwise a person who will answer bail."
The requirement to establish special or exceptional circumstances is at least as onerous as the requirement to show cause under s 16A(1) of the Bail Act: El-Hilli at [11] (Hamill J, with whom Simpson & Davies JJ agreed). It has been described as a significant hurdle. In HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 at [24], Hamill J (with whom Bathurst CJ and Bell P agreed) said: "However, four things may be observed. First, s 22 creates a significant hurdle to an applicant for bail who is pursuing an appeal against a conviction or sentence in proceedings prosecuted on indictment. Secondly, unlike the "show cause" requirement in ss 16A and 16B of the Bail Act 2013, s 22 incorporates the exhaustive list of factors in s 18 that guide a consideration of whether there is an unacceptable risk in releasing an offender to bail. Third, "special or exceptional circumstances" may exist as a result of a combination of circumstances or features of a case. It is not necessary to establish that the appeal is almost certain to succeed. Fourth, two commonly arising considerations are whether the appeal is arguable or enjoys reasonable prospects of success and whether the sentence the subject of the appeal is likely to expire before the appeal is determined."
In relation to the two common considerations referred to by Hamill J, if the merit of the appeal is the only or principal consideration relied upon to establish special or exceptional circumstances, it is not sufficient for the applicant to show that the grounds are arguable. In such a case, it is necessary for the applicant to show that the appeal is "most likely to succeed", although the applicant does not have to show that success is virtually inevitable: El-Hilli at [23]-[26].
Without more, the fact that the sentence which is the subject of the appeal is likely to expire before the appeal is determined is unlikely to constitute special or exceptional circumstances: Robinson v R (1991) 65 ALJR 519 (Gaudron J); El-Hilli at [19].
Consideration of the expiry of the sentence may need to take into account not just the non-parole period, but also the additional period after the applicant will become eligible to apply for parole: Robinson v R at 520. In considering whether there are special or exceptional circumstances the Court ought not simply assume that the applicant will be released from custody immediately upon expiration of the non-parole period. The importance of the prospect of parole depends on the facts of the case, including the particular grounds of appeal.
Whether there are special or exceptional circumstances needs to be assessed in light of all the circumstances of the case and not just one circumstance viewed in isolation: Lelikan v Director of Public Prosecutions (Cth) [2016] NSWSC 1467 at [72] (N Adams J). The two most common considerations referred to above ought not be considered in isolation from each other. In a case where the prospects of the appeal are favourable to the applicant, a likelihood that the sentence will expire before the appeal is heard may feature more prominently in the Court's assessment of whether the circumstances are special or exceptional.
The applicant for parole contends that special or exceptional circumstances exist, and he or she bears the onus of "establishing" them. They must be established on the balance of probabilities: s 32(1) of the Bail Act.

[13]

Submissions of the applicant

The applicant was unrepresented for the bail application. Prior to the hearing he filed documents which included "Skeleton Submissions" and an "Addendum Document" which contained submissions. He also filed a number of Affidavits which were not always sworn and in one case was changed after the date it bears. The Affidavits contained assertions and argumentative material more in the nature of submissions than evidence. In total the applicant relied upon more than 200 pages of documentation. The applicant also made oral submissions at the hearing.
The applicant accepted that he must establish special or exceptional circumstances, and that it is a significant hurdle. Beyond that, it was difficult to distil from his written and oral arguments the basis upon which he contended that he had established special or exceptional circumstances. A further fundamental problem was that the applicant's documents, including his "affidavits", were generally a series of assertions which were not self-evidently correct. The documents did not generally set out reasoned arguments capable of satisfying the Court of any particular matter.
Doing the best we can, the following is a list of circumstances referred to by the applicant in support of his application, together with a summary of the applicant's submissions in relation to each circumstance: 1. The sentence which is the subject of the appeal will expire on 25 July 2025. The applicant said his proposed appeals are unlikely to be determined by then, which will deprive him of the benefit of the appeals. 2. The applicant said that his appeals are "meritorious and enjoy reasonable prospects". The applicant has prepared draft submissions in support of some of the Grounds for his appeals against conviction (but not sentence) and provided the draft to the Court. These are addressed in more detail below. Apart from what is contained in the draft submissions, no reasons were articulated to demonstrate the asserted merit of the appeals. 3. The applicant said that he needs to be at liberty in order to prepare his appeals. This circumstance appeared to be made up of a number of elements, namely: 1. The applicant may have to represent himself at the appeals. In recent years the applicant has qualified for legal aid but he does not currently have a grant for the appeals. 2. The applicant is unable to access critical evidence whilst in custody. Before Sweeney J this argument was made in relation to emails which the applicant said he needed to defend the further offences arising from the car crash and the false declaration. The applicant has now pleaded guilty to those offences. To that extent, this argument falls away as far as the proposed appeals are concerned. 3. The applicant also said that he needs to be at liberty so he can personally recover his SIM-card. 4. Related to the SIM-card, the applicant said that he needs to get access to his phones. 1. The conditions of the applicant's custody are onerous. The applicant was previously "segregated" because of his high profile. The applicant suffers from mental health conditions, including bi-polar disorder. 2. The applicant's house is about to be sold by the mortgagee in possession. The house is the applicant's family home. If bail is granted, the applicant believes he will be able to prevent the sale by refinancing the current bank debt. Saving the family home will place his family in less financial hardship. As a further matter, the house contains the applicant's possessions which are valued at $180,000 and which he wants to sell in order to raise money for legal representation.
The applicant emphasised the decision of the Court in Samandi v DPP [2020] NSWCCA 102 where, for the purposes of s 22, the Court was satisfied that there were special or exceptional circumstances having regard to two matters, namely: 1. the appeal against conviction and sentence would not be heard until shortly before the non-parole period expired; and 2. the appeal against the severity of the sentence was shown to be reasonably arguable because there was evidence about the offender's mental health which was available at the time of sentencing but not brought to the attention of the court, possibly due to the incompetence of legal representation.
The applicant submitted that his case is materially the same as Samandi v DPP.
For the reasons which follow, we are not satisfied that the circumstances relied upon by the applicant, whether taken individually or as a group, are special or exceptional so as to enliven the power to grant bail under s 22. The circumstances relied upon by the applicant are addressed in turn.

[14]

Expiry of the sentence and deprivation of the benefit of the appeals

Other than in broad terms, the Court was not able to determine when the applicant's appeals are likely to be heard. The Crown appears to be ready to proceed immediately to a hearing but the applicant says he needs significantly more time to prepare. On the applicant's arguments, his appeals may not be determined before 18 July 2025 when he will first become eligible to apply for parole under the existing sentence. It is not necessary to determine the likelihood that that is correct. This issue may be assumed in the applicant's favour.
Nor is it necessary for the Court to decide whether past delays in instituting the appeals against the convictions and prosecuting them is the fault of the applicant. It is not necessary to decide whether the appeals, against either the convictions or the sentence, will be prosecuted to final hearing. The applicant asserts that it is his current intention to proceed with his appeals, although given the lack of merit (see below) they may instead be abandoned. It is not necessary to decide whether the applicant is likely to be granted parole when he first applies, or whether his custody is likely to continue beyond 18 July 2025. On the current application all these matters may be assumed in the applicant's favour.
The benefit of the appeals which the Court might otherwise have sought to preserve by an immediate grant of bail is the applicant's entitlement to be at liberty if the appeals are successful, resulting in convictions being set aside or the sentence being reduced. However, in this case any such benefit is currently illusory. The applicant is facing a further sentencing hearing on 20 September 2024. As set out above, the further sentence(s) to be considered on that date will be for the unrelated public justice offences to which the applicant has more recently pleaded guilty. Unless the outcome of the sentencing hearing on 20 September 2024 is that no further custodial term is imposed, or a custodial term is imposed which will expire before 18 July 2025, the applicant will not be entitled to liberty prior to that date regardless of the outcome of his appeals against his convictions for the domestic violence offences and the false documents offences.
The applicant asserts that he will not receive any additional time in custody as a result of the sentencing on 20 September 2024. There is no basis for that assertion. It flows from the applicant's evident misunderstanding of the Crown's attitude to the sentencing as recorded at [28] above. In any event, the sentence or sentences to be imposed on the applicant (if any) will be a matter for the sentencing judge.
As matters currently stand, this particular circumstance does not establish that there are special or exceptional circumstances for the purposes of s 22.

[16]

Domestic violence conviction - failure to stay the trial for want of legal aid

Ground 1 is set out at [31] above. In his oral submissions in support of the bail application, the applicant said that Ground 1 is his "strongest ground".
Draft written submissions have been prepared by the applicant, although pages were missing from the draft adduced into evidence on the bail application. The burden of the applicant's argument is that, when the trial judge dismissed the application for a stay on 5 April 2023, the applicant had been denied legal aid because he had not "verified" certain information given to the Legal Aid Commission, which the trial judge viewed as "exhausting all avenues" with legal aid. The applicant asserts that his legal aid problem was in fact capable of cure, as demonstrated retrospectively by the applicant successfully obtaining legal aid on 31 May 2023. More specifically, the applicant submits that the trial judge's exercise of the discretion not to stay was vitiated by an error of fact. The applicant does not identify the error with specificity although it relates to his dealings with the Legal Aid Commission.
As is apparent from Dietrich v R (1992) 177 CLR 292 at 315 (Mason CJ & McHugh J), the principle which lies at the heart of Ground 1 only applies where an application for a stay is made by an accused who is indigent. Unless that threshold requirement is satisfied, no question arises as to whether a stay ought to be granted in order to ensure that the accused has legal representation. No question arises as to whether the accused can obtain legal aid. The accused must prove that he or she is indigent. If the accused is not forthcoming about his or her financial circumstances, the Court may not be satisfied about this threshold requirement: R v Cranston [2020] NSWSC 469 at [11] (Beech-Jones J).
On 5 April 2023 Bennet SC DCJ dismissed the application for the stay because the applicant did not prove that he was indigent. Thereafter the trial judge did not need to consider the applicant's dealings with the Legal Aid Commission and his Honour did not do so.
On 17 April 2023 the applicant applied to the Court of Criminal Appeal for leave to appeal under s 5F of the Criminal Appeal Act 1912. The proposed grounds of that appeal are set out in paragraph [9] of that judgment: Mehajer v R [2023] NSWCCA 101. The applicant sought to challenge the finding of fact that he was not indigent. There were other grounds, but none of them challenged the way the trial judge dealt with the applicant's dealings with the Legal Aid Commission. The Court of Criminal Appeal held that, on the evidence, it was open to the trial judge to find that the applicant was not indigent. The s 5F appeal was dismissed.
This proposed Ground of appeal cannot be characterised as most likely to succeed.

[17]

Domestic violence conviction - failure to adjourn to examine the applicant's phones

The submissions and supporting material put forward by the applicant do not identify or explain the Ground in a way which permits the Court to make an assessment of the merits. They do not demonstrate that this Ground has any merit.
On his appeal, the applicant proposes to argue that his domestic violence trial miscarried because the trial judge failed to adjourn "until the appellant's mobile phones were forensically examined". The procedural premise for the argument is unexplained. Nothing is said about when the application for the adjournment was made to the trial judge, the evidence which supported it, the submissions made to the trial judge and the reasons why the application was dismissed. Nothing is said about what the trial judge was told about how long it would take to get access, or whether it was even possible. The duration of the necessary adjournment is not revealed, nor is it known whether the applicant sought an indefinite adjournment. The merit in this Ground cannot be assessed without knowing the procedural context.
The applicant's submissions on this Ground are confined to assertions about previous difficulties in accessing the phones. It may be accepted that access is impossible. The applicant has provided a report dated 16 June 2024 from a forensic examiner of phones which says that it is not possible to access the phones.
However, nothing is said which explains why access to the phones was necessary in 2023 to ensure that the domestic violence trial did not miscarry. Specifically, the evidence sought to be obtained from the phones and the probative value of that evidence has not been explained in any meaningful way. That critical part of argument is left to inference. Within the applicant's materials, the only references to evidence sought to be obtained from the phones are: 1. "the complainant had previously employed the practice of sending messages to herself between 2 of her own devices, in circumstances where she would save the sender's name as someone else and then taking screenshots"; and 2. "exculpatory evidence contained on my mobile phone, namely text messages (between my ex-partner and I), miscellaneous emails and images".
The domestic violence was constituted by four physical incidents in April 2018, June (or July) 2019 and October 2020. The applicant has not referred to any screenshot, text, email or image associated with the applicant's phones (cf the photographs of bruises on MB's phone) which might be the subject of investigation by him. The applicant has not referred to any evidence adduced at the trial which might have been challenged by material on his phone, much less demonstrated the materiality of any such evidence to the jury's verdicts. The applicant has not referred to any cross examination of MB which touched upon any relevant issue.
In the absence of a coherent explanation of this Ground, it cannot be regarded as having merit.

[18]

Domestic violence conviction - fresh evidence relevant to the MB's credit

The applicant's conviction for the domestic violence offences followed the trial at which MB gave evidence. The jury's verdicts show that her evidence was accepted.
This Ground is described by the applicant as fresh and new evidence relevant to MB's "credit".
As applicable to the current case, the principles to be applied to the advent of fresh and new evidence are set out in Xie v R [2021] NSWCCA 1 at [433]-[434] (Bathurst CJ, R A Hulme & Beech-Jones JJ) as follows: "[433] The Crown contended that none of that evidence answered the description of "fresh" or "new" evidence and it was all therefore inadmissible. In MRW v R [2011] NSWCCA 260 at [46] ("MRW"), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely: 'First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant.' [434] With the first question, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material "could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case" (Ratten at 516 per Barwick CJ). If the material does not meet the first of the above tests, that is, if it is not fresh evidence but only new evidence, then there would only be a miscarriage of justice if the appellant satisfies this Court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520)."
The applicant's draft submissions in support of this Ground which identify five items of evidence which are said to be relevant to MB's credit and which are "fresh". Without descending to detail, which should be reserved to the final hearing of the intended appeals, it is sufficient for present purposes to say that, with respect to some of the putative additional evidence, the applicant has not demonstrated that with reasonable diligence he was nevertheless unable to adduce it at trial. With respect to the remaining items of additional items, it appears that the proposed evidence would have been irrelevant to any issue in the trial and/or would have been otherwise inadmissible.
This Ground cannot be said to be at all likely to succeed.

[32]

Sale of the family home

Apart from an asserted belief, the applicant did not given any coherent reason as to how being at liberty would give him an ability to prevent the mortgagee's sale of his house which he does not otherwise have in custody. The applicant stated that "reputation risk" is the most important consideration for lenders and that they will not do business with someone who is in prison. The unspoken premise for that argument is that lenders will regard more favourably the reputation risk of someone who is on bail and is to be sentenced on 20 September 2024 for offences to which the applicant pleaded guilty, all of which offences have as an essential element the applicant's dishonesty. The premise may be doubted.
The applicant asserted that saving the family home will relieve the financial hardship of his family. There is no explanation of his family's financial hardship nor any explanation of how that hardship will be relieved if the applicant's house is saved from a mortgagee's sale. There is no evidence of any family hardship. Indeed, there is no evidence that the applicant has any family in the sense of dependents. There is no dispute that the applicant's marriage has ended and there are no children. The applicant is a 38 year old man with seven siblings, five of whom have studied in the area of law. The applicant also referred to his mother, but there is no suggestion that she is dependent on the applicant. There is no evidence that anyone lives at the house or has done so in recent years.
The evidence showed that a notice was issued under ss 20 and 21 of the Uncollected Goods Act 1995 by which two principals at FTI Consultants (unexplained, but presumably connected with the applicant's bankruptcy or other debt obligations) were authorised to dispose of the contents of the applicant's house if certain steps were not taken by 15 May 2024. That deadline having expired over three months ago, nothing suggests that the contents of the applicant's house have any further bearing on the current bail application.

At a glance

Court

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Judgment (35 paragraphs)

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Legislation Cited (4)

Cases Cited (12)

Cited By (2)