Mehajer v R

Catchwords

[2013] HCA 37 Dansie v The Queen [2022] HCA 25(2022) 403 ALR 221 Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54 Douar v R [2005] NSWCCA 455(2005) 159 A Crim R 154 Ellis v R [2015] NSWCCA 262 FB v RR v FB [2011] NSWCCA 217 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 Galea v Galea (1990) 19 NSWLR 263 Gallagher v The Queen (1986) 160 CLR 392[1986] HCA 26 JJ v R [2020] NSWCCA 165 Lowndes v The Queen (1999) 195 CLR 665[1994] HCA 63 Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221 PO v R [2020] NSWCCA 129 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88(2016) 332 ALR 128 R v Abou-Chabake [2004] NSWCCA 356(2004) 149 A Crim R 417 R v Esposito (1998) 45 NSWLR 442 R v Finnie and Finnie [2007] NSWCCA 38 R v FishR v Swan [2002] NSWCCA 196(2002) 131 A Crim R 172 R v Linehan [1921] VLR 582(1921) 27 ALR 348 R v Thompson [2002] NSWCCA 149(2002) 130 A Crim R 24 R v T, WA [2014] SASCFC 3

Judgment (67 paragraphs)

[1]

The applicant's 11 December 2017 affidavit

The applicant deposed in his 11 December affidavit: … 4. On or around 15 September 2017, I was awarded the contract work for Building Management, Security and Concierge for a high-rise development known as Skypoint Towers. i. ATTACHED AND MARKED ANNEXURE "A" IS A LETTER FROM "ON CALL STRATA SERVICES" 5. My roles and responsibilities as a Building Manager include (but are not limited to): a. Attending to occupants needs around the clock without notice (on call) b. Listing and rectifying defective building works c. Supervising the cleanliness of the building and the appointed cleaner d. Building monitoring e. Retail premises business monitoring f. Reporting to the Strata Body on a day to day basis 6. The building in question is under 3 months old. The first 10 months will be the busiest time for me as occupants begin moving into their new apartments. There are 141 apartments to this building and 16 retail shops. 7. There are approximately 43 units and 11 retail spaces which are yet to settle and are expected to take place over the next couple of months. This included resales and new rental applications. 8. In my capacity and role as a Building Manager, I am frequently called in to the building at random hours, including late at night to attend to occupant's queries and concerns. This is often inside my curfew hours. This can include the following: a. Attending to locked out occupants b. Attending to fire drills (whether it will be a false alarm or a real emergency, I am still required to attend). The system automatically calls 000 as well as the Building Managers mobile phone. c. Attend and assist police, ambulance and Fire brigades in an event of an emergency (for access) For example - break and enters, medical treatment, and or fire/storm/flood call outs. d. Attend to emergencies relating to water loss. This happens frequently - a water pump fails and as a result, does not pump up water to all residents in the building. e. Attend to black outs, which are often caused by residents themselves, where they place a faulty good into their power point, it turns off the entire unit as the safety switch is triggered. Last week we were called out to the building because a van hit a plumbing pipe in the basement which lead to a small flood and no power to half the building. f. Attend to lift breakdowns, including residents stuck in the lift, lift out of services and the lift not stopping at selected floors. At times, I will have to open the fire stairs in such event and place all signage and alert all residents of the hazard. g. Disable the lifts - in an event of an emergency I am required to disable the lifts and provide alternative access to residents. 9. The Building Management was rewarded to myself mainly due to the fact that I was Project Manager who worked on the erection of this building from day one, and I understand the building inside out. This allows me to deal with any issues with a lower working hour allowance. This has allowed me to attend to the concerns swiftly and within the strata budget, to keep the strata levies as low as possible. 10. I have some employees that work with me in the Building Management Sector, and if I lose my position, I will have to automatically terminate their employment. Three of the five employees are university students all working on a part time basis, as assistance to myself. They are unable to replace my role as they have studies to attend to from time to time, and do not have the capacity to work without my supervision. There is also a cleaner who works full time and another assistant that works after hours. 11. I have made enquiries as to whether I can appoint someone else whilst I am on bail. However, the conditions of my contractual agreement strictly state that 'sub- contracting' is not permitted. Even if I were able to subcontract, it would effectively mean that I would become unemployed. Even though I work as a property developer, this is not a source of income of cash flow. Property Development relates to unpaid work for the duration of the project (12 - 24 months) until occupation Certificate. 12. Whilst working at these hours and times may seem odd, I have previously been in a similar role from 2014-2016 for another strata company. It involved similar requirements, including late night attendances and inspections. 13. On top of my duties in paragraph 9, the building has someone at the concierge desk 24/7. From time to time I am there as I have to work during the night to make up for losses whereby I am unable to work in the day time. Concierge attendance is always required and mainly receives calls to complaints, booking of tradesman to rectify building defects, change of appointment times, laundry, food and inhouse services which we organise through our subcontracting body. 14. Prior to my bail conditions, I was doing some of the hours of concierge, as a lot of the time I am there anyway dealing with other issues. From time to time, I sit in the concierge area and work a few hours as I may be occupied in the day time and unable to work for various reasons. 15. The building effectively runs like a serviced apartment in that it has an eatery, as well as laundry and cleaning services that work around the clock. As the building manager I am also responsible for managing these services and dealing with any issues that arise at any time. 16. Since my bail was granted, I have been unable to work closely with the Strata Body and we have received several complaints. 17. I have been informed that my position will be immediately terminated should I not be able to attend to all my duties, including within the hours of my curfew. 18. As this is my main source of financial income at this present moment, I am heavily dependent on this role to support myself and my family. Mobile Telephones 19. One of my bail conditions is to only use one mobile phone and notify the officer in charge of my number. I understand the officer was notified before my released from custody. 20. As part of my duties, I usually carry a second mobile phone. This is effectively a 24-hour hotline for the building management. I am happy to provide the officer in charge the mobile phone number of this service if my bail is varied. Reporting Obligations 21. I also have other contracts where I do similar work with other buildings. From time to time I will have to travel interstate to attend our other contracts, mainly in Melbourne and Queensland. I do not get much notice when I have to travel interstate, as it is normally something urgent where I have to leave as soon as possible. 22. On average, I will be required to go interstate at a minimum once a month. This involves going for a period of 3-5 days. My next interstate visit is scheduled for Friday 15 December 2017 where I have been appointed to supervise a team of contractors for the installation of balcony upgrades, window lock and flyscreen systems. This is following a recent accident whereby a toddler fell from an apartment window. I will then be required to return for waterproofing services of a rooftop terrace on 2-5 January 2018. 23. I am at times required to supervise anywhere between 4-9 staff. Sometimes it is also onsite accommodation and we cannot leave the site for the duration of the job. 24. About half of the staff I supervise whilst working interstate are either still studying at university or TAFE and/or are completing their apprenticeship course. I am the most senior out of the group and no one in my group has the experience I have to carry out my duties. If I am unable to attend to these jobs, my staff will also be affected.
The letter to the applicant from Mr Ramadan as General Manager of On Call Strata Services, referred to in par 4 of the applicant's affidavit, was in the following terms: 7 December 2017 Salim Mehajer … Re: Letter of Engagement As requested, this letter is to confirm your engagement with us as Building and Concierge Manager. We confirm the following: Building and Concierge Management as of 15 September 2017, for a period of three years. Position may be overturned if you breach any of our terms and conditions noted in our product disclosure. Please do not hesitate to contact me on [mobile number] should you have any queries. Kind Regards Alidine (Ali) Ramadan General Manager (Emphasis in original.)

[2]

Events on and following the 19 December 2017 AGM

As indicated, at the first AGM of the residential strata plan on 19 December 2017, Prestige Strata was appointed as strata manager and the Lefand Group was appointed the building manager of the residential properties.
On 20 December 2017 at 11:30 pm, Mr Nathan Champley, managing director of the Eminent Group, a cleaning company, emailed the applicant stating that he had been indirectly told that the residential cleaning "is going to Lefand as they have undercut me" and this was a little disappointing to hear.
Following this email from Mr Champley, the applicant and Mr Yassine exchanged text messages on 20 December 2017. At 11:49 pm, the applicant texted, "I need to ensure we now get cleaning BM concierge". Mr Yassine replied at 11:52 pm that he would call "marie". The applicant responded at 11:54 pm, "That means we need to put a quote together overnight".
At 8:36 am on 21 December 2017, Mr Yassine texted the applicant: You must talk to todd ben and rouad about new company for security bm and concierge.
At 11:10 am on 21 December 2017, Mr Yassine sent an email to Ms Lane stating: I have not been able to get you on the phone this morning. At the meeting, please be nominated as the new strata manager. For concierge, security and building management can you kindly hold off in nominating any party as Salim wants to make a submission for these services by a new party.
Ms Lane gave evidence that she did not recall receiving this email and noted that her office was closed from 20 December 2017, as was recorded on her email of 11 December 2017.
At 9:01 am on 22 December 2017, an email from Maree@timberlandre.com.au was sent by iPhone to Mr Yassine and the applicant: Hi Bill and Salim, May I confirm the cleaners that are there are currently your cleaners or the receivers appointed them? Lefand group, not sure if you have hear (sic) of them? However receivers appointed them as onsite manager We can sort this out in the new year Cheers, Maree Lane
Ms Lane gave evidence that the "timberlandre" email address was hers, but she could not recall writing this email. She said that no one would have access to her emails and was unsure how anyone else could have written the message and that she would never email anyone regarding the strata using the Timberland Real Estate email. She also said that the wording and vocabulary of the email was not hers and she did not have any association with the applicant after her first initial meeting when he came to her office with Mr Abbas before 11 December 2017.

[3]

Documents tendered on the release application on 7 March 2018

As indicated, the applicant tendered a bundle of documents on the release application on 7 March 2018, which included the three documents referred to below.
The first was a letter to the applicant dated 14 February 2018 on the letterhead of Skypoint Strata Services and On Call Strata Services, and signed by Mr Ramadan, Acting General Manager, which stated: Re: Termination of Employment We write to you in regards to your employment with Oncall Strata at project known as Skypoint Towers at 36-44 John Street Lidcombe NSW 2141. Regretfully we have unanimously voted to terminate your position with us as Building/Strata Manager as of 28th February 2018. This is due to the fact you remain in custody and are unable to fulfil your position with us. It is understood that you have made an application to seek bail, however if bail is granted in your favour, your position will be reinstated and will not be revoked. In the interim, our position remains and your position will be terminated as of 28th February 2018. Should your application for bail be unsuccessful. In the event is not granted, we will seek that the Executive Committee to hold an extraordinary meeting with strata board to re-elect a new Building and Strata Manager. No employee from your team can be rolled over to the new Management Board. …
The second was a letter dated 24 February 2018, again on the letterhead of Skypoint Strata Services and On Call Strata Services, and signed by Mr Ali Ramadan, Acting General Manager, which stated: Re: Termination of employment Please accept our apology for this inconvenience at an already stressful time. We write to you in regards to your employment with Oncall Strata at project known as Skypoint Towers at 36-44 John Street Lidcombe NSW 2141. In regards to the previous letter dated on the 14th February 2018, we have been informed that you have a bail application on the 7th of March 2018. As a result, we would like to extend our employment termination letter to reflect the 15th March. We are giving you the benefit of the doubt and no further extension will be applied. If bail were not granted on the aforementioned date, we would not be in a position to offer you any further leniency. We will seek the Executive Committee to hold an extraordinary meeting with the strata board to re-elect a new Building and Strata Manager. No employee from your team can be rolled over to the new Management Board. However if bail is granted in your favour, your position will be reinstated and will not be revoked. …

[4]

The applicant's evidence

The trial judge referred in detail to the applicant's evidence (at [280]-[349]) and summarised the defence case (at [350]-[363]). What follows is an outline of the main aspects of the applicant's evidence.
In his evidence in chief, the applicant said that as of 11 December 2017 his understanding that he was the building manager was mainly through face-to-face conversations with Mr Madsen. He did not recall Mr Gammel being present for these conversations but said Mr Madsen told him he had informed Mr Gammel. He said it was "days to weeks" before 11 December 2017 that he had the last discussion with Mr Madsen confirming this; then he said it was "days, to be more precise, days".
When shown Ex 33, the text messages between himself and Mr Yassine on 11 December 2017, the applicant said that he recalled his lawyer, Mr Matthew Ward, being on a conference or speaker phone to Mr Gammel, he did not hear Mr Gammel's voice and he was told by Mr Ward that Mr Gammel said, "No". The applicant said that his "Fuck him" text message to Mr Yassine was sent in disbelief, because he had approached Mr Gammel with the expectation that he would say what they had agreed upon. The applicant said that his message referring to his need for a letter from the receiver confirming that they had appointed Sarraf Strata and Sarraf Strata had appointed us, was a reference to his understanding of the agreement "with the receiver via Mr Madsen".
In cross-examination, when taken to his "I am a fighter" 22 August 2017 email to his accountant, the applicant said that he knew there was an obstacle of the receiver's approval, but ultimately Mr Madsen could retire the receiver at any time because it was a voluntary administration and he had control. The applicant said the approval was given over several phone calls, but then said it was mainly emails. He said that Mr Madsen was not telling the truth when he gave evidence that he was not in a position to do anything like that.
The applicant agreed that he knew that the receiver was the only person who had the authority to appoint an interim manager. He said that he knew the receiver was going to retire and he never thought of a time "on contract between the receiver, On Call or myself". When asked "where's the contract?" the applicant responded: … It's not the most, anywhere near solid, a solid contract, but that's what I was referred to, and I was referring to Ben's word on what, what we discussed".

[5]

The trial judge's findings - verdict judgment

The trial judge's detailed findings in Part E of the verdict judgment can be conveniently grouped as follows.
Identity of building manager: On Call Strata Services was not, nor was the applicant personally, awarded a contract to provide interim building management services at Skypoint Towers (at [373], [375]). At no stage was the applicant engaged by the receivers in any role related to the building management of Skypoint Towers, and the applicant was aware he had no authority to act as the interim building manager (at [375]).
Rejecting the applicant's evidence, the trial judge found that: 1. the Lefand Group was not simply the "face" of building management of Skypoint Towers: at [376]; 2. the applicant did not continue to provide building management services with the authority of the financiers and receivers: at [376]; 3. there was no basis for the belief asserted by the applicant that he had authority to provide building management services and was doing so pursuant to an agreement between himself and Mr Madsen, the representative of one of the financiers, SC Lowy: at [378]; 4. the fact that Mr Madsen on behalf of the financier and Mr Gammel acting as the receiver did not provide the confirmation sought by the applicant in his 11 December 2017 email under the subject heading "Maniac Urgent Matters" that "On Call Strata has the building management and concierge services (24/7) for Skypoint Towers", is consistent with their evidence that at no time was the applicant engaged or authorised to carry out building management services at Skypoint Towers: at [392]; 5. the evidence of Mr Madsen that he did not authorise or approve the applicant, or any person or entity associated with him, to engage in building management, concierge services or security services in the interim period, was accepted: at [396]; 6. there was no basis for the applicant believing that he personally, or On Call Strata Services, had the authority to continue to provide building services to Skypoint Towers, as he had maintained in his evidence: at [380]; 7. the applicant's evidence that until the time of his arrest (on 23 January 2018) he was still acting as the building manager at Skypoint Towers, could not be accepted: at [386]; and 8. the Crown had excluded beyond reasonable doubt the possibility that the applicant believed an agreement was in place from August 2017 for On Call Strata Services to provide building management services and concierge services: at [395].

[6]

The trial judge's conclusions

The trial judge's principal conclusions, leading to the findings that the applicant was guilty on each count, are encapsulated in the summary findings in Part E of the verdict judgment (at [451]-[456]) which are reproduced in full below: Count 1 [451] Based on my findings set out in this part, Part E: Determination, I find that the Crown has proved beyond reasonable doubt: (1) The accused did an act; that he did swear a false affidavit; that the content of the affidavit was false in so far as it asserted that the accused had been awarded a contract for building management, security and concierge services at Skypoint Towers and that he was unable to perform his obligations under that contract unless the bail conditions previously set were varied. (2) That the accused knew the assertion that he was awarded a contract for building management, security and concierge services at Skypoint Towers was false. (3) That the act in making the false statement was done with the intent to pervert the course of justice; that when the accused swore the affidavit that the purpose of swearing the affidavit was because he intended that the affidavit be presented to the court in proceedings to determine his application to vary his conditional bail; that at time he made the false statement he intended that the statement mislead the court and intended that the content of the statement obstruct the proper assessment by the court of the matters the court was required to consider in making a determination under the Bail Act. Count 2 [452] Based on my findings set out in this part, Part E: Determination, I find that the Crown has proved beyond reasonable doubt: (1) The accused in or in connection with judicial proceedings made a false statement in an affidavit of the 11 December 2017 that he had been awarded a contract for building management, security and concierge services at Skypoint Towers. The accused relied on this false statement in his affidavit by presenting the affidavit to the court and using the content of the affidavit in support of his application to vary bail and falsely stating on oath that statement in the affidavit he was awarded the contract was true. (2) That the false statement was made on oath before the Burwood Local Court on the 14 December 2017. (3) The false statement made by the accused on oath concerned a matter which was material to the proceeding before the Burwood Local Court. In making a bail decision the court is to consider matters set out in the Bail Act, which includes the need for an accused person to be free for any lawful reason. In the decision to vary the curfew it is material to such a decision whether the accused had a lawful reason to be at liberty which warranted a departure from the terms of the curfew. The content of the affidavit contains a number of matters relating to his performance of the agreement which were impacted by the curfew which the court was required to assess in determining whether there were lawful reasons for the accused to be at liberty during the curfew period. The matters asserted in the affidavit were material to the application to remove the curfew condition. (4) That the accused knew the statement he had been awarded a contract for building management, security and concierge services at Skypoint Towers was false. [453] As I have noted, the requirement that the falsity of the statement be corroborated can be satisfied firstly, by evidence of two witnesses attesting to the falsity of the accused's statement; secondly, by one witness with corroboration; thirdly by the "…production of a record which proves itself shown to have known to the accused" (R v Linehan [1921] VLR 582 at 588) and, fourthly by "documentary evidence springing from [the accused] himself". [454] I have referred to the evidence of two witnesses in particular, being Mr Madsen and Mr Gammel and the evidence in the Crown case that corroborates their evidence relating to the question whether the accused had been "…awarded the contract work" for building management, security and concierge services at Skypoint Towers, as the accused stated in his affidavit. I have made findings concerning the reliability of the evidence of these two witnesses and made findings consistent with their evidence that there was no agreement in place where On Call Strata Services was to provide building management services at Skypoint Towers. I have made findings accepting their evidence that there was no such agreement. In my view, the falsity of the accused's statement that he was "awarded the contract" is proved by the evidence of these two witnesses. I find further that other evidence in the trial provides substantial corroboration to the evidence these two witnesses gave. I have extracted and referred to documents and email correspondence particularly in August and September 2017, which supports the evidence of these two witnesses. There is also a body of other evidence which supports the evidence of these two witnesses, including that from early September the Lefand Group had been appointed the building manager and had carried out those services on site at Skypoint Towers and that the provision of those services by them continued beyond the date the accused made the application for bail on the 7 March 2018. There is no significant evidence the accused was engaged in the provision of building management services from early October 2017. I find the falsity of the accused's statement is corroborated by two witnesses and that their evidence is corroborated by other evidence. Count 3 [455] Based on my findings set out in this part, Part E: Determination, I find that the Crown has proved beyond reasonable doubt: (1) The accused did an act in connection with judicial proceedings by providing documents, being two letters authored by Mr Ramadan and a proposal document, to the Burwood Local Court the content of which was false and known to be false. The accused relied on the content of these false documents in support of his application for bail and falsely represented the content of the documents to be true; that by doing so the accused did provide false information to the court as to the circumstances of his employment which included the circumstances of the termination of his employment knowing that information was false. (2) That the accused knew the content of the letters was false and falsely represented that the proposal document was an employment agreement and that at the time of making the representation he knew the representations were false. (3) That the act in providing the documents to the Burwood Local Court in support of his application for bail was done with the intent to pervert the course of justice. I find that when the accused provided the documents to the court he intended the content of the documents mislead the court and intended that the content of the documents to obstruct the proper assessment by the court of the matters the court was required to consider in making a determination under the Bail Act. [456] I find the Crown has proved beyond reasonable doubt each of the counts on the indictment. (Emphasis in original)

[7]

Grounds of appeal against conviction

The following amended grounds were relied upon (adopting the numbering in the applicant's written submissions): 1. Intervention by learned trial judge had caused a miscarriage of justice. 2. The learned trial judge erred in following his general directions of law in convicting the applicant on counts 1, 2 and 3. 3. The applicant submits that a miscarriage of justice has resulted from the absence of fresh and new evidence at the trial. 4. Disclosure concerns - the applicant was denied access to his mobile phones containing evidential material. 5. The verdicts were unreasonable or otherwise unsupported by the evidence.
It is appropriate first to deal with the application to rely upon fresh and new evidence on appeal, as ground 3 contends that the absence of this evidence has caused a miscarriage of justice.

[8]

Ground 3 - rulings on fresh and new evidence on appeal

There is a distinction to be made between "fresh" evidence and "new" evidence. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence: R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] (Kirby J).
The documentary material sought to be relied upon by the applicant fell into six categories: 1. documents relating to the financing of the Skypoint Tower project, being Loan Term Sheet from Acuity Funding dated 23 March 2015 (Ex SM-1); loan structure model (Ex SM 2); SC Lowy HK Loan Term Sheet dated 18 April 2016 (Ex SM 3); occupation certificates dated 3 April 2017 and 23 May 2017, and letter to Credit Connect Capital dated 7 April 2017 confirming pre-sales in respect of residential and commercial units (Ex SM 4); and, loan performance letter dated 23 April 2017 and email dated 5 January 2017 regarding financing from Mr Ben Madsen of SC Lowy (Ex SM 5). 2. documents relating to the voluntary administration of SET Services and Sydney Project Group, being an Introducer Agreement between Balari Pty Ltd as introducer and the applicant, Sydney Project Group and SET Services as borrowers, and statutory demands dated 29 May 2017 issued by Balari Pty Ltd to SET Services and Sydney Project Group (Ex SM 6); letter of offer from Henry Davis York dated 29 July 2017 and a deed of company arrangement undated (Ex SM 7); a letter of offer from Portcullis Capital for mortgage funding dated September 2017 (Ex SM 8); and, a Form 5011 - Minutes of Meeting for SET Services and Sydney Project Group, dated 22 December 2017 (Ex SM 14); 3. deeds of release dated 2 November 2017 and 15 February 2018 (Ex SM 9); 4. documents relating to mobile phone messages between Mr Madsen and Mr Mehajer, including a WhatsApp message from Mr Madsen (Ex SM 10) and screenshots of Cellebrite digital forensics reports (Ex SM 11); 5. documents relating to Mr Ahmad Gharib, including a photo of a meeting between Mr Gharib and Mr Madsen (Ex SM 12) and an affidavit of Mr Gharib sworn on 24 May 2021 in support of a bail application by the applicant in the District Court of New South Wales (Ex SM 13); and 6. submissions of Mr Michael Finnane QC dated 4 October 2019 in relation to the applicant's bankruptcy annulment application in the Federal Circuit Court of Australia (Ex SM 15).

[9]

Legal principles

In MRW v R [2011] NSWCCA 260 at [46], Bathurst CJ identified 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: 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.
The third proposition in MRW v R expressed in terms of a "significant possibility" is derived from the formulation of Mason and Deane JJ in Gallagher v The Queen (1986) 160 CLR 392 at 402; [1986] HCA 26, with which Gibbs CJ at 399 and Dawson J at 421 substantially agreed. The ultimate question for an appellate court is whether there has been a miscarriage of justice at the trial: at 402.
As to new evidence, it was stated in Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [434] (Bathurst CJ, R A Hulme and Beech-Jones JJ): [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).

[10]

Application of principles

Applying these principles, all of the material in items (1) to (6) is inadmissible on appeal.

[11]

New evidence

The documents in item (1) Ex SM 1-5, item (2) Ex SM 7-8, item (3) Ex SM 9, item (4) Ex SM 11, and item (6) Ex SM 15 all constitute new evidence, not fresh evidence. The applicant accepted in his written submissions (par 3.6) that these documents were "available at the trial" and said that "counsel or the [applicant] decided to not tender this material". The unchallenged evidence of defence counsel is that during the course of the trial the applicant provided a number of documents to his instructing solicitors, that he reviewed each document that was provided to him, and made a forensic judgment as to whether to use that document in the trial, and if he decided to use it, he also made a forensic judgment as to how he would use the document (Metcalfe affidavit, par [10]).
As to item 5, Ex SM 12, the applicant accepted at [79] of his 21 June 2022 affidavit that the photo of a meeting between Mr Gharib and Mr Madsen was available during the trial. Defence counsel confirmed at [15]-[16] of his affidavit that he was provided this photograph by the applicant on 29 June 2020 and determined there was no forensic utility in adducing it at trial. This document is new evidence, not fresh evidence.
As to item (5) Ex SM 13, as appears from the cover page of the affidavit of Mr Gharib dated 24 May 2021, this affidavit was sworn in connection with a bail application made by the applicant in the District Court. The applicant sought to rely upon the two annexures to this affidavit. These documents are not new or fresh evidence; these annexures relate to insurance cover for the Skypoint Towers development and were in evidence at trial as part of Ex 1 tendered by the Crown, and Ex L tendered by the defence respectively.
None of the material sought to be relied upon by the applicant as new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that the applicant was innocent or that his guilt was not established beyond reasonable doubt: Xie v R at [434].

[12]

Fresh evidence

As to item (2) Ex SM 6, accepting that the content of the statutory demands issued to the applicant's companies in late May 2017 (but not the fact of service) is fresh evidence, there is no evidentiary foundation in the material before this Court for the applicant's submission that Mr Gammel and Mr Madsen were aware that the statutory demands were not bona fide, such that an attack on their credit as Crown witnesses could have been made on that basis at trial.
As to item (2) Ex SM 14, accepting that the Form 5011 minutes of meeting of creditors of Sydney Project Group and SET Services is fresh evidence, as stated in the applicant's affidavit (at par [81]) (although this is inconsistent with his written submissions at par [3.6(i)], p.20), again, there is no evidentiary foundation in the material before this Court for the applicant's submission that these minutes show that two Crown witnesses, Mr Madsen and Mr Gammel, "had a motive to go against me" because there was "a significant amount of money that was on the line" as at 17 December 2017. Nor is there evidence that the applicant was unaware at trial of the approximate value of the unsold apartments and units when the receivers retired on 22 December 2017.
The applicant has not established that any of these documents in Ex SM 6 and Ex SM 14 gives rise to a significant possibility that the tribunal of fact acting reasonably would have acquitted the applicant: MRW v R at [46].
In these circumstances, the contention in ground 3 that the absence of the new and fresh evidence has caused a miscarriage of justice must be rejected.

[13]

Application to reopen submissions on ground 3

After the Court reserved judgment, the applicant sought leave by letter dated 25 October 2022 to rely upon his unsworn affidavit dated 24 October 2022 insofar as the applicant sought to tender Ex SM 6 concerning the statutory demands issued by Balari Pty Ltd. The Crown objected to leave being given.
No sufficient reason has been advanced by the applicant to permit reopening of his appeal to rely upon Ex SM 6 as fresh evidence on appeal, more than three months after the conclusion of the oral hearing. In any event, treating the applicant's unsworn affidavit as a submission, nothing in pars [4]-[7] of the unsworn affidavit advances the applicant's argument in relation to Ex SM 6. The applicant says that he has made "some very serious allegations" about Mr Madsen and Balari Pty Ltd, that his trustee in bankruptcy advised him on or about 12 October 2022 that he is not in a position to comment on the "Balari matter", and had these serious allegations been untrue, the "Crown, trustee, Balari and Mr Madsen would no doubt have reported me to the authorities and /or the Court". This submission goes nowhere; whether or not the Crown, Mr Madsen or Balari Pty Ltd have made complaint "to the authorities and /or the Court" about the truthfulness of the applicant's allegations, does not establish the factual assertions contained in the applicant's allegations about the statutory demands issued by Balari Pty Ltd.

[14]

Ground 1 - Excessive intervention by trial judge caused a miscarriage of justice

The applicant gave evidence over five days: 11, 12, 13, 14 and 17 August 2020. The applicant submits that the judicial questioning during his evidence-in-chief and cross-examination resulted in a miscarriage of justice because the intervention by the trial judge was excessive and prevented him from properly presenting his case. The applicant says that the line of questions was not to elucidate any particular topic or issue, and the excessive intervention by the judge laid a platform for the Crown to question the applicant. The applicant complained that other witnesses were not exposed to any intervention and/or line of questioning to the extent experienced by the applicant, with specific reference to Ms Lane, a witness called by the Crown. The applicant also submits that the trial judge was not impartial in his delivery of the judgment because extracts of the trial transcript referred to in the verdict judgment were questions that his Honour had asked the applicant.

[15]

Legal principles

In Ellis v R [2015] NSWCCA 262 at [65], Bathurst CJ, R A Hulme and Garling JJ referred to R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 at [38], where Kourakis CJ stated three ways in which a judge's intervention may be excessive and lead to a miscarriage of justice: (i) the questioning unfairly undermines the proper presentation of a party's case (the disruption ground); (ii) the questioning gives an appearance of bias (the bias ground); and (iii) the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
In this case, the applicant relies upon each of these grounds.
The authorities recognise that greater latitude should be afforded to a judge sitting alone in terms of the limits of questioning of a witness: R v Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24 at [35]. The rationale for such latitude was confirmed in R v Esposito (1998) 45 NSWLR 442 at 470 (a criminal trial involving a jury), quoting Kirby ACJ in Galea v Galea (1990) 19 NSWLR 263 at 281, when contrasting the position of a judge in a civil trial, to a criminal trial involving a jury: This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached.
The principles stated by Kirby ACJ in Galea v Galea at 281-282 are conveniently summarised in FB v R; R v FB [2011] NSWCCA 217 at [91] (Whealy JA, Buddin and Harrison JJ agreeing): (1) The test to be applied is whether the excessive judicial questioning ... [has] created a real danger that the trial was unfair. If so, the judgment must be set aside ... (2) [G]reater latitude in questioning and comment will be accepted where a judge is sitting alone ... (3) ... the appellate court must consider whether ... the judge has ... moved into counsel's shoes and 'into the perils of self-persuasion' ... (4) The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions ... (5) It is also relevant to consider the point at which the judicial interventions complained of occur. ... (6) The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change ... The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements ... See also Masters v R [2022] NSWCCA 228, a case involving a judge alone trial, where Lonergan J (Brereton JA and N Adams J agreeing) at [62] distilled the summary of principles by Ward JA in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [162]-[172].

[16]

The trial judge's questions

It is of assistance to place the judge's questioning of the applicant in context. The trial involved some factual complexity as to the applicant's corporate structures and dealings. Having read the transcript of the applicant's evidence, it is apparent that the judge fairly endeavoured by his questions to understand the defence case.
On day 16 of the trial, being the first day the applicant was giving evidence in chief, the judge asked questions concerning the basis for the applicant's belief that he was the building manager in the period after receivers were appointed. Defence counsel indicated that he was "just stepping through all these questions that your Honour has [asked] in a very measured way". This response recognised that no complaint was made by defence counsel in relation to these questions by the judge.
Also on day 16, the trial judge asked the applicant whether there was any correspondence or any other material that related to the applicant's evidence that it was agreed amongst all parties that he was going to be the building manager, and then enquired of defence counsel "or is that going to be led?". Defence counsel responded that it would be led, and the judge stated that he would leave it to defence counsel. The applicant submits that the trial judge's questioning should have stopped at this point, and that the degree of intervention intensified thereafter. That "line in the sand" submission cannot be accepted. Whether the point of unfairness has been reached must be determined in the context of the whole trial and the number, length, terms and circumstances of the interventions of the trial judge: Galea at 281-282.
The judge also asked questions on day 16 of the trial regarding the applicant's relationship with the On Call entities, there being some inconsistency in the defence case as to who had appointed On Call Strata Services as the interim building manager. Those questions included: Q: Correct me if I'm wrong but isn't the structure that you've established ultimately in relation to On Call Strata Services that you were in effect On Call Strata Services so is what you're saying that you, in a sense, approved On Call being yourself as appointed as the building manager? A: Sorry, are you referring to On Call Strata Services Australia? … Q: So in effect who do you say made the decision that On Call be appointed as the building manager? A: Ben Madsen and myself. But in myself as a developer for Sydney Project Group and S.E.T. Services.

[17]

First complaint

The applicant's first complaint relates to a subsequent lengthy sequence of questions during the applicant's evidence-in-chief on day 16 of the trial. The questions were directed to the issue of whether the applicant had asked Mr Ramadan to write the 7 December letter attached to the applicant's 11 December 2017 affidavit. The applicant responded that he did ask for an "employment" letter. The judge asked whether the applicant told Mr Ramadan what to put in the letter and why Mr Ramadan would have made certain statements in the letter. The applicant responded that he did not, that he assumed "it's a standard letter … to myself", and that he could not comment on why Mr Ramadan had included his mobile phone number in the letter.
There was no objection by the defence counsel to this sequence of questions. Rather, a discussion ensued between defence counsel and the trial judge concerning the matters raised by the judge with the applicant and what inference might be drawn from the 7 December letter. Defence counsel foreshadowed the submission that would be made: the letter was a fairly standard form of business letter, whilst also acknowledging the "oddity" in the letter, being the reference to the applicant's position being "overturned" if he breached any of the terms and conditions in the "product disclosure".
Prior to the hearing adjourning on day 16, the judge returned to Mr Ramadan's 7 December letter and the reference to the applicant's position being "overturned" if he breached any of the terms and conditions in the "product disclosure", asking the following questions: Q: Just one last thing about this letter from Mr Ramadan. That line that I asked you about, "Position may be overturned if you breach any of our terms and conditions noted in our product disclosure"-- A: Yes. Q: -- what is being referred to there? A: I, I don't know what the - as I said, I don't know what the product disclosure refers to. It could possibly mean the contract that's dated August 2017, but I don't know. I don't understand the product disclosure. Q: When you say the contract August 17, was there any agreement or any contract between On Call, that is, with Mr Ramadan as the general manager and your services to provide building management service for Skypoint Tower? A: There was. It was more also On Call Strata rather than Ali Ramadan. Q: Was there any contract or any written agreement from the provision of services by you or Oncall Strata Services? A: The only agreement that I can refer to is the - similar to Exhibit 24, there may be an OnCall version, and a signed version. There no other agreement. … Q: Again, you don't know what that line was if - A: No I don't.

[18]

Second complaint

The second complaint relates to questions asked by the trial judge on day 17 of the trial, again during the applicant's evidence in chief, concerning the "I am a fighter" email sent by the applicant to his accountant, Mr Boutros. The judge asked the following questions: Q: Can I just ask you this, in those series of emails, I don't have them in front of me, but I think there was a comment by you that you're a fighter. In other words, once you were rewarded with the contract that you make the comment that in what context do you say that, you were fighting with Mr Ramadan for this agreement? A: No, no, not with Mr Ramadan. Mr Ramadan was only in place because of Ben's organised the structure in this way. When I said that, it was because the receiver was appointed and I'm trying to get this asset back. I'm trying to retire the receiver and stay on, stay on, on the building management team on this project. Because the company went into receivership, I was arguing and I remained arguing that it shouldn't be in receivership. Q: It wasn't a difficulty that you had to fight for to get this agreement, because after all you had an interest in both of these entities? A: Yes your Honour, you are right but I still had to form this structure and I still had to get consent, despite these persons injected by Ben and I, so to speak, I still needed to so - seek consent from Ramadan, seek consent from Bass, as a director. Q: But Ramadan was the manager that was appointed here? A: Correct. Q: And that was your friend? A: Yes, your Honour. But then I say friend, its still, its still a professional relationship.
The applicant's email was relevant to whether On Call Strata Services was controlled by the applicant or an arm's length entity controlled by Mr Ramadan. The judge appropriately raised with the applicant the nature of his email to Mr Boutros and gave him the opportunity to clarify the language used, which asserted that the applicant had been "rewarded" (sic) the contract. Contrary to the applicant's submissions, his Honour's questions did not reflect any prejudgment, nor did they interfere with the presentation of the defence case.

[19]

Third complaint

The third complaint relates to a lengthy sequence of questions by the trial judge on day 20 of the trial, towards the end of cross-examination of the applicant. As the trial judge noted (at [320]), it was the defence case that: … the agreement between On Call Strata Services and [the applicant] was an "arms-length" agreement and that Mr Ramadan and Mr Abbas could terminate the agreement between On Call Strata Services and the Owners Corporation of Skypoint Towers by calling an extraordinary meeting of the Owners Corporation of Skypoint Towers.
The judge's questions in this sequence were directed to the issue of the agreement appointing the applicant as an employee of On Call Strata Services, and Mr Ramadan's letter of 14 February 2018. On two occasions, defence counsel objected to the form of the judge's questions; one objection related to a matter of timing; the other objection related to an incorrect reference by the judge to the "executive committee" in Mr Ramadan's 14 February letter. On each occasion the judge reframed the question in a manner not objected to by defence counsel.
In response to the judge's questioning, the applicant gave evidence that Mr Abbas and Mr Ramadan were the persons who would make the decision on behalf of On Call Strata Services to seek out the executive committee of the residential strata plan to hold an extraordinary meeting to appoint a new building manager, if the applicant could not undertake the work. The applicant said that "they [being Mr Abbas and Mr Ramadan] were only doing this for myself", that "[i]t wasn't … a normal company that I was an employee for, they wouldn't cancel the contract", and "[t]hey didn't want to run a bar of it".
None of these questions asked by the trial judge up to this point in this sequence were inappropriate.
The applicant's complaint focuses on the judge's final three questions in this sequence which are reproduced below: Q: So, that doesn't make sense that you were, obviously, keen for On Call to have this future role in, obviously, SkyPoint Tower. It was, clearly, from some of these text interchanges that you were very pleased to secure a $300,000 contract. You were keen to set up a structure with On Call so that they could undertake, not only work at SkyPoint Towers, but go on to be involved in further work as strata managers. Yet this is simply conveying that if you couldn't, simply, turn up to sit at the On Call's desk that they were going to appoint the executive committee, and pull out of the contract. That's silly, isn't it? A: Your Honour, it sounds silly on the face of it, but that's what was the case. That's what the agreement was. That's what-- Q: It's more than sounds silly, it's silly that because you couldn't turn up because you were in custody that they were going to hand back the $300,000 contract. Because after all, there was Ms Siaflina and other people who could have sat at the desk and made the enquiries. Why did this all arise and fall on you being able to sit at the concierge desk, or handle a lift jam or a plumbing problem or someone being locked out? A: Because, it was, it was my, it was my plan with the whole, to get them on board as a director and general manager. I-- Q: You see, that letter was a fiction because of that, and you knew it. You knew that that was a fiction. A: No, I didn't, your Honour.

[20]

Other matters

The applicant's complaint contrasting the trial judge's questioning of the applicant with that by the judge during evidence given by Ms Lane goes nowhere. As the Crown correctly submits, the extracts of questions selected by the applicant in his submissions do not relevantly bear upon whether there was excessive intervention by the trial judge in the evidence of the applicant.
Nor is there any merit in the applicant's submission that the verdict judgment was not impartial because it contained extracts of the transcript containing questions asked by the judge of the applicant. Insofar as the verdict judgment included references to the judge's own questioning, such as (at [420]), the applicant's answers to the first and second final questions in the sequence set out at [167] above, no criticism can be made of his Honour referring to relevant parts of the applicant's evidence concerning the 14 February letter.
One further matter should be mentioned. The finding by his Honour (at [422]-[423]) that the February 2018 letters authored by Mr Ramadan did not reflect the relationship between the applicant and On Call Strata Services and that the structure put in place was that Mr Ramadan and Mr Abbas had the power to terminate the alleged agreement between the applicant and On Call Strata Services, was based on the judge's rejection of the applicant's evidence in chief that the letters were not a "contrivance", to which his Honour expressly referred at [417]. Insofar as the judge described the applicant's evidence on this issue as having been given in cross-examination, that was an immaterial mistake in a lengthy judgment.

[21]

Application to reopen submissions on ground 1

The applicant also sought leave by letter dated 25 October 2022 to rely upon pars [8]-[13] of his unsworn affidavit dated 24 October 2022 by way of reopening his submissions in support of ground 1. Again, the Crown objected to leave being given.
No sufficient reason has been advanced by the applicant to permit reopening of his appeal on ground 1, more than three months after the conclusion of the oral hearing. In any event, the applicant's further submissions in support of ground 1 do not establish excessive judicial questioning by the trial judge.
First, the applicant complained about a sequence of questions during his evidence in chief on day 17 of the trial just prior to the luncheon adjournment. After defence counsel had led evidence concerning the applicant's 11 December 2017 affidavit, the trial judge asked questions of the applicant directed to clarifying matters stated in the applicant's affidavit. There was no objection by defence counsel. Indeed, defence counsel took the opportunity, during the judge's questions, to ask further questions of the applicant on the topic of who held the wages books for the persons employed by On Call Strata Services, and after the luncheon adjournment asked further questions of the applicant relating to the December affidavit. The judge's questions were not excessive and did not prevent defence counsel from properly presenting the applicant's case.
Second, the applicant complained about one question by the trial judge during Mr Madsen's cross-examination on day 18 of the trial. Mr Madsen had earlier said on day 18, concerning a discussion with the applicant in relation to proposing a company to perform services: We were happy for somebody that was legitimate company that had been in the business of providing these services to perform them
After Mr Madsen later answered a question about whether he had proposed to the applicant that Mr Abbas be director of On Call Strata Services, the trial judge asked Mr Madsen if he had said "earlier that there was another matter and that was that the company had to be one that was already in business?". Mr Madsen answered "Correct." The applicant complained that his Honour "returns Mr Madsen to the correct path" and that Mr Madsen corrected himself despite the emails in Ex K not saying that the new entity had to be "already in business". This complaint is without merit. There was nothing inappropriate in the trial judge seeking clarification as to whether the witness had earlier given evidence on a particular topic.

[22]

Ground 2 - The trial judge failed to follow his general directions of law

No complaint is made in relation to the general directions of law recorded by the trial judge in the verdict judgment. This ground is directed to questions asked by the trial judge of the applicant concerning the appointment of Mr Ahmed Jaghbir as a director of On Call Strata Services and Skypoint Strata Services on 1 October 2017, not, as suggested by the Crown, questions concerning Mr Ramadan. The questions in respect of which complaint is made do not constitute directions or rulings on a question of law.
The applicant's complaint is that the questions reveal that the trial judge was "suspicious" of the applicant for supporting the appointment of a person, who was an electrician as company director. The submission continued that the judge erred in taking that suspicion into account by forming the view that Mr Jaghbir would have been incapable of operating a company because of the absence of any formal qualifications.
This submission mischaracterises the trial judge's reasons. The judge referred to the applicant's evidence concerning the appointment of Mr Jaghbir as a director of Skypoint Strata Services and On Call Strata Services in October 2017: at [408]-[409]. Mr Jaghbir was an electrician. The applicant had not seen him for about ten years prior to his appointment as a director. The judge found that ultimately it was Mr Abbas, not Mr Jaghbir, who made the decision about the applicant's employment with On Call Strata Services: at [412].
The trial judge did not say or imply that Mr Jaghbir was incapable of acting as a director of On Call Strata Services and Skypoint Strata Services because of the absence of any formal qualifications. His Honour's point was a different one. It concerned the applicant's suggestion that On Call Strata Services was at arm's length from the applicant, in circumstances where Mr Jaghbir was the sole director of On Call Strata Services from 1 October 2017, Mr Abbas having resigned as a director on that date. The judge said of the applicant's evidence at [423]: The accused presents an extraordinary picture where a person who he had little contact with in the past, who was an electrician with little experience in strata management, could make a decision, independent of the accused, to approach the Owners Corporation and withdraw On Call Strata Services from an agreement that the accused expended considerable energy in securing and establishing the corporate structure of On Call Strata that could permit that entity to enter a building management agreement with the Owners Corporation of Skypoint Towers.

[23]

Ground 4 - The applicant was denied access to his mobile phones

This ground concerns the disclosure by the prosecution of the contents of the applicant's mobile phones. That the prosecution has a duty of disclosure is recognised both at common law and by the Criminal Procedure Act 1986 (NSW), ss 61, 62 and 63 and the Director of Public Prosecutions Act 1986 (NSW), s 15A.
The applicant submits that he was denied "due process and procedural fairness" because he was denied access to his mobile phones being "material evidence, which inevitably impacted upon the outcome of the case". He says that his mobile phones "may" contain strong and compelling evidence, which would have returned a "not guilty verdict". He acknowledged that in the "early stages of the trial", the officer in charge of the investigation provided him with a USB containing what the applicant characterised as "an inadequate and insufficient downloaded version of the phone's data via the software 'Cellebrite'". He asserted that the officer in charge was well-aware that the downloads were not "full and correct", that not all files would open, and were difficult to navigate.
The Crown cross-examined the applicant on this issue and relied upon affidavit evidence from Det Sgt Taylor, the officer in charge of the investigation, and Ms Viney, a solicitor from the Office of the Director of Public Prosecutions (NSW). The unchallenged evidence of Det Sgt Taylor established that downloads of the applicant's mobile phones were provided to the applicant's legal representatives and to the applicant multiple times, with the last date of service on the applicant personally being 4 June 2020, some 18 days before the first day of the trial (Taylor, par [12]).
Ms Viney also gave unchallenged evidence of her communications with the applicant personally and later with his legal representatives, which corroborated Det Sgt Taylor's evidence that the mobile phone information was communicated to the applicant personally and through his legal representatives prior to the trial (Viney, par [9], [21]). Her evidence also confirmed that all reasonable efforts were made by the officer in charge and the Crown to assist the applicant in accessing any possible evidence on mobile phones.
In cross-examination, the applicant agreed that he was given a USB with downloads of the content of his mobile phones and a copy of the prosecution brief on 4 June 2020. He said that he did not open this material "until during the trial". He acknowledged this was "[m]y mistake, I accept that". The applicant's complaint that the downloads were not provided until the early stages of the trial cannot be accepted. As the applicant acknowledged, he deferred examining the material provided to him "until during the trial".

[24]

Ground 5 - unreasonable verdict

Ground 5 contends that the verdicts were unreasonable or otherwise unsupported by the evidence. This is a reference to the first limb of s 6(1) of the Criminal Appeal Act.
In determining an appeal on an unreasonable verdict ground the approach required to be taken by the Court is exactly the same where the trial has been before a judge alone as where the trial has been by jury: Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 at [15] (Gageler, Keane, Gordon, Steward and Gleeson JJ). The approach to be taken is in accordance with M v The Queen (1994) 181 CLR 487; [1994] HCA 63, as applied in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ) and [82]-[83] (Gageler J).
In Dansie at [8]-[9], the joint judgment said that the reasoning in the joint judgment in M requires: [8] … that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence". [9] The joint judgment in M made clear that "in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses". The joint judgment equally made clear how those considerations are to impact on the court's independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated: It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (Citations omitted)

[25]

Consideration

In accordance with the principles stated above, we have undertaken an independent assessment of the evidence to the extent necessary to engage with the applicant's argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal: Dansie at [15]. We have kept in mind that in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced: Filippou at [12].
We note that there is no dispute that the evidence established beyond reasonable doubt the relevant act or conduct of the applicant for the purposes of each offence:

for count 1: the act done by the applicant was the swearing of an affidavit dated 11 December 2017;
for count 2: the conduct of the applicant was the making of a statement on oath that the content of his 11 December 2017 affidavit was true, and reliance in proceedings before the Local Court on 14 December 2017 on the assertions in the affidavit on oath namely that the applicant was employed in the provision of building management services and that such employment was impacted by bail conditions; and
for count 3: the act done by the applicant was to provide information in the course of an application for bail on 7 March 2018 as to the circumstances of the applicant's employment in the provision of building management services at Skypoint Towers.

The applicant's argument that the verdicts were unreasonable was advanced on two levels. First, the applicant submits that the findings that his affidavit sworn 11 December 2017, statements made on oath on 14 December 2017, and information provided to the Local Court on 7 March 2018 were false, was not supported by the evidence. Second, the applicant submits that there was an insufficient basis for the trial judge to find that he acted with the intent necessary for counts 1, 2 and 3.

[26]

Whether the applicant's December affidavit, statements on oath on 14 December 2017 and the information provided to the Court on 7 March 2018 were false?

The applicant submits that there is evidence that (a) he provided building management services prior to August 2017, (b) building services were undertaken by Ms Siaflina in August 2017, and (c) he or his entity, On Call Strata Services, continued to provide building management services from August 2017 until his arrest in January 2018.
Whether the applicant (or Ms Siaflina at his direction) provided any building management services or a free concierge service at Skypoint Towers prior to August 2017 is not the point. To the extent any such services were provided by the applicant or Ms Siaflina, the evidence established that this was without the authority of the receivers and, importantly, the applicant knew that the receivers had not authorised the applicant to provide any such services: see [101]-[102] above.

[27]

The applicant was not appointed as interim building manager

The applicant's contention that On Call Strata Services was the interim building manager was based on his evidence that he had been "awarded" this contract by Mr Madsen and the receiver. As his Honour recorded at [372]: The accused said the decision to appoint On Call Strata Services as the interim building manager was ultimately the decision of Mr Madsen and the receiver; that On Call Strata Services had been awarded the interim contract and was given permission by Mr Madsen to proceed on an interim basis. The accused said in evidence it was his understanding that the continuation of On Call Strata Services as building manager was a decision of the Owners Corporation at the first annual general meeting (T519.25).
The applicant's evidence was inconsistent with the evidence of Mr Gammel and Mr Madsen. In rejecting the applicant's evidence his Honour found at [373]: The accused's evidence that On Call Strata Services had been appointed the interim building manager is inconsistent with the evidence of Mr Madsen and Mr Gammel to which I have earlier referred at some length. I do not accept the evidence of the accused in so far as it conflicts with the evidence of Mr Madsen and Mr Gammel about the appointment of a building manager in the interim period. I find that On Call Strata Services was not, nor was the accused personally, awarded a contract to provide interim building management services at Skypoint Towers. There is no independent evidence the accused was awarded a $300,000 contract as he asserted to his accountant Mr Boutros. In my view, the evidence establishes that it was made clear to the accused that he could not play any role in the provision of building services at Skypoint Towers.
His Honour addressed the applicant's case that building services were undertaken by Ms Siaflina at the applicant's direction in August 2017 (at [374]-[376]), and relevantly found that that the undertaking of building management services by Ms Siaflina was not authorised by the receivers, and that in cross-examination the applicant said he was aware of the email exchanges involving Ms Siaflina (at [374]). These findings are not in dispute.
The applicant's evidence that he believed he "rectified it", that is, the receivers concern about Ms Siaflina's unauthorised conduct, was rejected by his Honour at [375]-[376]. It is appropriate to set out these findings in full: [375] In evidence, the accused said that he did not dispute, from the content of the email exchanges at this time, there was a concern raised by the receivers about Ms Siaflina's unauthorised engaging in building management, however he said he believed he "rectified it" and was "led to believe it was rectified" (T733.40 and following). I do not accept this evidence of the accused. There is no support for this evidence of the accused in any communication or document. The accused's evidence is inconsistent with the evidence of Mr Madsen and Mr Gammel who said that approval had not been given to On Call Strata Services or to the accused personally. I do not accept the accused's evidence that Mr Madsen "misled my team thinking that it was under control when it wasn't" (T734.20). I have referred to the accused's evidence why, when there was an issue about the unauthorised involvement of Ms Siaflina in the provision of concierge and building management services, he did not intervene to make it clear to Mr Hocking, who was raising concerns on behalf of the receivers, that Mr Madsen had given authority to On Call Strata to supply building management services and why he allowed Ms Siaflina to give personal undertakings. The accused responded saying that he thought Mr Madsen was "on side and he took this as everyone was under the same umbrella, we were all related entities…" (T739.46). I do not accept this evidence of the accused. It is contrary to the evidence of Mr Madsen and Mr Gammel who I find are credible witnesses. The evidence establishes that at this time the accused did not have the authority, either himself or through his agent Ms Siaflina, or as an employee of On Call Strata Services, to undertake building management services. The decision by the accused to provide interim building management services, if such services were provided, was not made in consultation with or with the agreement of any person or entity that had the authority to appoint him or an entity controlled by him to undertake building services. This much is clear from the email exchanges between the receivers and the accused and communications between Sarraf Strata and the receivers. I have earlier in the judgment extracted the text of these emails. I am of the view that in the context of the email exchanges between the receivers and the accused, the accused was aware he had no authority to act as the interim building manager. I accept the evidence of Mr Gammel who said, when taken to a series of email exchanges between the receivers and Ms Siaflina on or about the 31 August 2017, that any building services undertaken by Ms Siaflina, who was said to be acting on behalf of "Mr Mehajer's team" had not been done with authority or permission of the receivers. Ms Siaflina had asserted in the emails at this time that she was attending Skypoint Towers on a daily basis and was available to residents "24 hours seven days a week". I accept the evidence of Mr Gammel that after being notified by the builder there was a person purporting to undertake building management on or about 30 August 2017 the receivers went to the building to carry out their own inspection and found Ms Siaflina had been performing concierge services. I accept Mr Gammel's evidence that at that time a decision was made to move to the appointment of the Lefand Group as the building manager. The fact that the receivers acted quickly to appoint the Lefand Group, when they became aware of Ms Siaflina carrying out unauthorised building management, is inconsistent with the accused's evidence that the issues concerning Ms Siaflina had been rectified following discussion with Mr Madsen. The evidence is that Mr Madsen, on behalf of the financiers, and Mr Gammel, acting as the receiver, were working closely together in the control over Skypoint Towers from the time of the appointment of the receivers. It is inconceivable, against the background of that close contact, that Mr Madsen would not have notified Mr Gammel that he had given authority to On Call Strata Services or the accused to act as the building manager or approval to provide concierge services or other building services at Skypoint Towers. [376] The Lefand Group had been appointed by the receivers upon the recommendation of Sarraf Strata. The Lefand group acted as interim building managers up until the time of the first annual general meeting on 19 December 2017 when they were formally appointed as the Strata billing manager of Skypoint Towers. I am of the view that it can be inferred that the accused was made aware of the appointment of the Lefand Group as interim building managers at this time. I do not accept the accused's evidence that the Lefand Group was simply the "face" of building management at Skypoint Towers and that he continued to provide building management services with the authority of the financiers and receivers.

[28]

The applicant was not "reappointed" as interim building manager

The applicant's case that On Call Strata Services was reappointed as interim building manager relied on acceptance of the applicant's evidence that Mr Madsen made that appointment in either meetings or telephone conversations with the applicant on or about 5 October 2017, and that this appointment was confirmed by Mr Madsen in the weeks or days before the applicant swore his 11 December 2017 affidavit: see [98] above. Mr Madsen gave evidence to the contrary, as did Mr Gammel, one of the receivers. Although at one point in his evidence the applicant asserted that he met with Mr Gammel and Mr Madsen to rectify the issue which had arisen in September 2017 and he believed that he had (see [105] above), that evidence was inconsistent with the applicant's evidence in chief that he did not recall Mr Gammel being present for conversations with Mr Madsen appointing him as interim building manager: see [98] and [102] above.
His Honour referred to Mr Madsen's evidence (at [149]-[150]) and rejected the applicant's conflicting evidence, finding that Mr Madsen was a credible witness (at [375]). His Honour referred to Mr Gammel's evidence (at [107]-[139]) and also found that Mr Gammel was a credible witness and that given the email exchanges between the receivers and the applicant, the applicant was aware that he had no authority to act as the interim building manager (at [375]). Having discovered that Ms Siaflina was purporting to undertake building management, the receivers acted quickly to appoint the Lefand Group. This was inconsistent with the applicant's evidence that the issues concerning Ms Siaflina had been rectified following discussion with Mr Madsen. That the receivers appointed the Lefand Group as interim building managers for a fee in September 2017 is strong probative evidence that the applicant was not "reappointed" as building manager for no charge, as he asserted in his evidence.
His Honour had a significant advantage in seeing and hearing the witnesses give evidence. The evidence of Mr Gammel and Mr Madsen does not contain discrepancies or display inadequacies, nor is their evidence tainted or otherwise lacking in probative force: M at 494. This is not a case where the evidence upon the record itself causes this Court to have a doubt which his Honour ought to have experienced.

[29]

Lefand Group, not the applicant, was appointed interim building manager

The finding (at [376]) concerning the appointment of the Lefand Group as the interim building managers cannot be seriously disputed, given the oral and documentary evidence of this appointment by the receivers in September 2017: see [15] above. The applicant's evidence that after a period of a few weeks as interim building manager, Lefand was sacked and On Call Strata Services were retained on an informal basis, is implausible. The asserted sacking of Lefand as building manager is unsupported by any evidence. It is also contradicted by (a) the receivers conduct in continuing to pay Lefand for its services, which is inconsistent with the asserted termination of Lefand's services, (b) Mr Diab's evidence that once the Lefand Group was appointed by the receivers, he, on behalf of Sarraf Strata, did not deal with Ms Siaflina or the applicant, he dealt with Mr Bong from Lefand, and (c) Mr Bong's evidence that he attended at Skypoint Towers on a daily basis to perform the services of interim building manager from 11 September 2017 to 19 February 2018, when another colleague took over: see [50] above.
The applicant's evidence that Lefand had been appointed "on paper" but were not acting as building managers and that Mr Madsen told him that Lefand should remain the "face" of the building management, whilst the applicant would still work there, is equally implausible. First, it was the receivers, not Mr Madsen, who appointed the Lefand Group as interim building managers. Second, the applicant's attribution to Mr Madsen of Lefand's appointment as the "face" of the building management and "on paper" only, is inconsistent with the formality of the receivers' appointment of Lefand by a signed written agreement and the evidence of Mr Diab, Mr Iacovou and Mr Bong as to the actual work undertaken by Lefand as interim building manager: see [225] below. Third, there is no evidence that the receivers were dissatisfied with Lefand's performance as interim building manager such as to give cause for the receivers to "sack" Lefand and to appoint the applicant to perform the work in its place. Fourth, given the formality of the receivers' appointment of Lefand, it is inconceivable that the receivers would authorise Mr Madsen to informally appoint the applicant as interim building manager, without any written record of such appointment. Fifth, the defence case at trial that, in order to keep the applicant "onside", Mr Madsen told the applicant that he could undertake the role of building manager (a proposition denied by Mr Madsen), was speculative.

[30]

The applicant did not provide building management services from August 2017

The applicant's evidence that he continued to provide building management services from August 2017 was rejected by his Honour (at [381]-[387]), which included the following findings: [382] …Whilst the accused bears no onus of proof, there is no significant evidence that the accused was carrying out security services, concierge services or building management after October 2017. Ultimately, apart from a number of emails where Ms Siaflina was in attendance and dealing with building management issues in August and September 2017, and a small number of emails tendered in the accused's case (Exhibit J), there is no other evidence the accused was undertaking building management services, concierge services or security services in the period October 2017 to 7 March 2018. … [384] Additionally, there is a body of evidence that others were carrying out building management services from early September 2017. I have referred to the circumstances of the appointment of the Lefand Group as the interim building manager on the 6 September 2017. I have referred to the evidence of Mr Diab, Mr Iacovou, and Mr Bong earlier in this judgment. I accept the evidence of Mr Iacovou and Mr Bong that subsequent to the appointment of the Lefand Group that building management services were provided by the Lefand Group and that the presence of Mr Bong carrying out those services in the way he described in evidence would have been apparent to the accused if he had attended Skypoint Towers with the frequency he asserted in his affidavit and in evidence in the trial when describing his performance of what he said was the employment agreement between he and On Call Strata Services. [385] … As I have also noted, the accused said he did not see Mr Bong or Mr Bali undertake any building management services at Skypoint Towers acting on behalf of the Lefand Group. The accused said the Lefand Group had been appointed "on paper" but they were not acting as building managers and that the residents continued to contact him during this time. The accused said that after the two-week period during which he was excluded from Skypoint Towers he "negotiated with Ben Madsen and I was appointed back again" (T706.49). I do not accept this evidence of the accused. The accused's evidence is inconsistent with the evidence of Mr Madsen. Further it is inconsistent with the evidence of Mr Iacovou and Mr Bong whose evidence I accept. I accept the evidence of Mr Bong that, apart from minimal observation of the accused on CCTV footage, he did not observe the accused personally undertake any building management services at Skypoint Towers. This evidence is significant in determining whether the Crown has excluded the possibility the accused believed he held an agreement to carry out building services and that he continued to carry out such services in the belief that such an agreement existed. The evidence establishes that the accused was not performing such services after early October and that the Lefand Group provided building management from 6 September 2017. As I will further set out below, I find, against this background, the accused would not have held a belief that there was an agreement in place whereby he or On Call Strata Services were engaged to carry out building management services at Skypoint Towers. In my view there is no basis upon which the accused could have held any belief that he personally or through On Call Strata Services held an agreement to provide building management services from August 2017. [386] … As I have earlier referred, the accused said at the time he entered custody in January 2018 he was of the understanding that On Call Strata had the "…rights to the building management, concierge and security going forward" (T601.45). He said in January he was told by Mr Abbas that Prestige Strata was awarded the strata management at the first annual general meeting and he believed On Call Strata's building management, concierge and security contracts "… rolled over from the interim and became official with the residence" (T602.33). The accused said that until the time of his arrest he was still acting as the building manager at Skypoint Towers (T603.1). I do not accept this evidence of the accused. In evidence the accused said that he continued to attend the site during this period and continued to provide building management, concierge and security services in performance of the terms of the employment agreement he said he entered with On Call Strata Services. It is clear that during this period the accused continued to agitate with the financiers and the receivers to preserve his financial interests in Skypoint Towers. The accused said he was aware in late 2017 the first annual general meeting was pending and he said he was promoting the services of On Call to residents so they may vote for the awarding of the contract to On Call at the first annual general meeting. Against this background, I cannot accept that the accused would not have enquired or would not have known that the Lefand Group, who had been appointed as the interim building manager from 6 September 2017 and acted in that role from that time, secured the contract at the first annual general meeting. … Significantly however, as I have noted, apart from the assertions of the accused in evidence that he continued to receive phone calls and emails, and continued to attend to enquiries of residents, there is no other evidence that he did so. When pressed to describe his activity in the period after the first annual general meeting in December 2017 he gave only a general description. When pressed, the accused said he made some diary notes but he no longer had them (T604.14). In the recorded interview with police the accused said (Q84): "…the receiver appointed their very own strata, because they did it for PR, and, um, reputation. Because they just wanted to eliminate the Mehajer banner from, from the building until they get 100 per cent pre-sales. But at the same time, I was, it was like, 2 building managers working. I'm 100 per cent I was working, I've got, uh, I've got CCTV footage of myself walking, working at the reception desk. I've got emails, I've got everything." [387] Bearing in mind the range of activity the accused needed to engage in at Skypoint Towers in satisfaction of his employment agreement he said was in place with On Call Strata Services (set out in the proposal document Exhibit 24), including many hours of attendance at the concierge desk and the provision of security, it is significant there is little or no evidence he did so, particularly from October 2017. There is a strong body of evidence however that the Lefand Group were carrying out those services as I have referred. Additionally, there is evidence of the accused's travel overseas between 23 August 2017 to 4 September 2017 which is somewhat inconsistent with the accused's evidence and his assertions in his affidavit of the 11 December 2017 that his employment agreement required his personal attendance on site at Skypoint Towers. The accused's travel is also inconsistent with the letter of Mr Ramadan annexed to the accused's affidavit that it was necessary for the accused to personally perform building management services and that he had been doing so since August 2017.

[31]

The February 2018 letters

The evidence concerning the two February letters authored by Mr Ramadan which were presented by the applicant to the Local Court on 7 March 2018, was addressed by his Honour (at [416]-[421]), who relevantly noted (at [417]): In cross-examination the accused denied the letters were a contrivance and maintained that the way On Call Strata was structured meant that Mr Ramadan had complete authority to terminate his engagement as an employee and authority to terminate the agreement between On Call Strata Services and the Owners Corporation of Skypoint Towers. The reference by his Honour to the applicant's denial being given in cross-examination was an error; as noted, the applicant's denial that the letters were a contrivance was given by the applicant in chief: see [172] above.
In rejecting the applicant's evidence that the letters authored by Mr Ramadan reflect the relationship between him and On Call Strata Services and that the applicant had no control over any decision made by Mr Ramadan to terminate the agreement in the way Mr Ramadan set out in his letters, his Honour found (at [423]-[425]) that the applicant's evidence was implausible: [423] The accused presents an extraordinary picture where a person who he had little contact with in the past, who was an electrician with little experience in strata management, could make a decision, independent of the accused, to approach the Owners Corporation and withdraw On Call Strata Services from an agreement that the accused expended considerable energy in securing and establishing the corporate structure of On Call Strata that could permit that entity to enter a building management agreement with the Owners Corporation of Skypoint Towers. The accused's evidence that he accepted, understood and did not challenge Mr Ramadan's purported decision to not simply dismiss him as an employee but to approach the Owners Corporation to withdraw On Call Strata from what would otherwise have been a lucrative contract, as simply within Mr Ramadan's discretion, is implausible. [424] I have referred to the accused's evidence relating to the content of the letter of 24 February 2018 that it was Mr Abbas who had arranged the second letter. When it was put to the accused that what was suggested in the letter by Mr Ramadan was a convoluted process of arranging an extraordinary meeting of the Owners Corporation so that On Call Strata could formally withdraw from the agreement the accused said that it did not concern him and he did not dictate the terms of this letter. [425] The accused engaged in significant industry in ensuring that On Call Strata would be appointed as the interim building manager and ultimately be appointed as the building manager at the first annual general meeting. In the email on 27 August 2017, the accused wrote to Mr Boutros, "I've been awarded the contract…income approximately $300,000 per annum. Indeed, I am a fighter!!!!" The accused was asked who he was he referring to that he had to "fight" to secure the contract and whether there was any difficulty he had in obtaining the agreement from On Call Strata to undertake the building management as he had an interest in the On Call entities and he responded (T568.39): "Q. It wasn't a difficulty that you had to fight for to get this agreement, because after all you had an interest in both of these entities? A. Yes, your Honour, you are right but I still had to form this structure and I still had to get consent despite these persons injected by Ben and I, so to speak, I still needed to do - seek consent from Ramadan, seek consent from Bass, as a director. Q. But Ramadan was the manager that was appointed here? A. Correct. Q. And that was a friend of yours? A. Yes, your Honour. But when I say friend, it's still a, it's still a professional relationship. Q. There wouldn't be much fighting to get this agreement in the context of the structure of these two entities, which you had an interest, direct or indirect? A. You're right, your Honour. But I still needed to get consent from Madsen because he was the - they were acting as the receiver, instructions of the receiver. So, it wasn't just On Call's decision, it was the receiver and SC Lowy to accept On Call. So, there was two steps that we had to overcome, it wasn't just On Call."

[32]

The "proposal" document

The evidence concerning the "proposal" document which was presented by the applicant to the Local Court on 7 March 2018, was addressed by his Honour (at [426]-[429]), who relevantly found: [426] …That document however could be described as a proposal document or prospectus setting out the services that On Call Strata could provide at Skypoint Towers should they secure the contract to be appointed as the building manager. The document is directed to those who had the power to appoint On Call Strata to appoint On Call Strat to the position of building manager at Skypoint Towers. The accused said the single page which contained signatures (being page 11 of 18) is the confirmation of the entering into the contractual arrangement with On Call Strata Services. When one examines the proposal document, which is said to be the foundation of the contractual arrangement between On Call and the accused, there is nothing in the document that appears to relate to the terms of any engagement of the accused as an employee of On Call Strata Services to undertake building management services or concierge services "24/7". The document is a detailed proposal document about the provision of strata services to clients by Skypoint Strata Services and On Call Strata Services. [427] In the course of evidence, the accused was asked to identify within the proposal document anything that would amount to terms of a contractual agreement or an employment agreement between him and On Call Strata Services. He gave the following evidence (T594.38): "Q. Is there something that you could take me to here that you say amounts to a contractual agreement between you and On Call. A. Sure. Your Honour, that's the only contractual agreement I had. I referred to that document and all the conversations I had with the director and general manager, and I took that on that value. Which, of course, is clumsy, but-- Q. You see, but you were very precise here in paragraph 11 because in your affidavit you say, "The conditions of my contractual agreement strictly state 'subcontracting is not permitted.'" A. Yep. Q. Is there anything in here, and by "here" so the record can indicate, exhibit 11, is there anything in here that shows the subcontracting condition which is strictly stated? A. I accept that it's not in there, your Honour. Q. And it goes on, "Even if I were to able to subcontract, it would not effectively mean I would become unemployed." But there's nothing in this document that you say is the agreement between you and On Call that that sets that out. A. Not in writing, your Honour, no, it's not in writing. But I can just refer to the conversations I had, and that's as far as I can really take it. Q. It's not the case that you were intending to misrepresent the situation in your affidavit, that you had a formal contractual agreement which had very strict conditions that you couldn't get anyone else to do the work? A. Your Honour, the wording may appear to be like that but absolutely not. That was not an intention in any way shape or form. That, that was truly my understanding. And yes, the wording is horrendous, but there was, there was not even a bit of my mind that it was an intention to mislead the Court. And I can understand that how much each word has an impact, now I do. But yeah, that was not my intention, absolutely not, I'm certain about that." [428] I have earlier extracted the accused's evidence when he we was taken to the content of the proposal document which he asserted evidenced the employment agreement that he had entered into with On Call Strata Services (see T698.39 and following). The fact that the accused struggled to identify the terms of any employment agreement within the document supports the conclusion that the document that was produced to the court did not represent an employment agreement as the accused contended. Additionally, I have serious concerns about the integrity of the signed document headed "Confirmation of Acceptance" which the accused said was signed at the commencement of the agreement in August 2017. The fact the date on the document was 2018 points to the document being fabricated. Whilst on its own this error is not determinative however, when this error is looked at in combination with the content of the document and the accused's evidence, the identification and presentation of the proposal document as an employment agreement between him and On Call Strata entered into in August 2017 for the personal performance of building services, concierge services and security services in my view is misleading. …

[33]

Whether insufficient evidence that the applicant acted with the necessary intent

It is not in dispute that the trial judge correctly stated the mental element of each offence, relevantly:

for count 1: the applicant swore a false affidavit dated 11 December 2017 with the intent to pervert the course of justice (at [365]);
for count 2: the applicant knowingly made a false statement concerning a matter material to a judicial proceeding (at [366]); and
for count 3: the applicant provided false information in the course of an application for bail on 7 March 2018 with intent to pervert the course of justice (at [366]).

The applicant submits that even if the evidence established that there was no agreement in place for the provision of building management services by On Call Strata Services, or the applicant personally, there was insufficient evidence that the applicant acted with the necessary intent for each count and corroboration for count 2. That is, the evidence adduced by the Crown did not exclude the possibility that the applicant believed there was such an agreement in place.
In support of this submission the applicant essentially relied upon three matters. First, the applicant pointed to several emails and documents which were said to reflect and / or support his asserted belief.
Second, the applicant says that evidence contradictory to that of the applicant, specifically Mr Madsen and Ms Lane, should not have been accepted by the trial judge.
Third, the applicant relies upon his asserted lack of knowledge of the Lefand Group and their role as building manager from 6 September 2017.
It will be apparent that much of the findings and reasons of his Honour relating to the applicant's belief have already been referred to above, when dealing with the applicant's challenge to the falsity findings concerning the applicant's affidavit, his statements on oath and the information provided to the Local Court.

[34]

22 August 2017 and 5 October 2017 emails

The two emails primarily relied upon by the applicant as supporting his belief that On Call Strata Services had been appointed interim building manager are: 1. Exhibit F, the "I'm a fighter" email, sent by the applicant to his accountant, Mr Boutros, on 22 August 2017 (see [41] above); and 2. Exhibit J, the email sent by the applicant to Mr Sarraf on 5 October 2017 (see [56] above).
The applicant's evidence concerning the 22 August email was referred to by his Honour (at [287]-[288]): [287] In an email on 22 August 2017, between the accused and George Boutros, the accused wrote, "I've been rewarded the contract…Income approximately $300,000 per annum. Indeed, I am a fighter!!! George, Contract rewarded! Do you have any good receptionists you can pass over to me????…" (Exhibit F). The accused said this was a reference to On Call Strata receiving the contract for building management services at Skypoint Towers. When asked who awarded him the contract the accused said, "it would've been approved by SC Lowy to continue the building management on the interim basis" (T519.13). The accused then gave the following evidence (at T519.25): Q. Just so we're clear, you say that when you say that you were awarded the contract, you we awarded it by who, Sarraf Strata and approved by SC Lowy, in other words-- A. It was - sure, go ahead. So, so I sent it to Sarraf Strata and it was approved - Sarraf Strata had no issue with myself doing it, but it was ultimately Ben or the, Madsen, or the receivers' decision. I spoke to Ben Madsen who said it's fine to proceed on the interim basis, but at the AGM I think they'll put it to voting. Q. Just so far as any correspondence in relation to the award of that contract, obviously Mr Madsen has given evidence, is there anything in the material that's been tendered that indicates some documentary interchange about the awarding of the contract for the strata? A. Is that for myself your Honour? Q. Yes. A. I, I don't think I see anything from Ben because my conversations with him was mainly in person or over the phone. Q. So when you say you were awarded the contract, was that orally or was there any-- A. Yes. Q. So is there any other documentation that you exchanged or signed or contract relating to that award? A. Not with Madsen, just this document's all I have." [288] In cross-examination the accused continued to maintain that the awarding of the building management contract was with the full knowledge of Mr Madsen (T687.1 and following). When taken to the evidence given by Mr Madsen that he, Mr Madsen, was not in a position to be involved in awarding a contract, the accused asserted that Mr Madsen was not telling the truth (T687.35).

[35]

31 August 2017 email

The applicant also relied upon Mr Sarraf's 31 August 2017 email to the receivers, confirming that Sarraf Strata had not approved any contractor onsite. The contents of this email do not assist the applicant's asserted belief. First, the applicant was not a party to the email, and in any event, Mr Sarraf confirmed to the receivers that Sarraf Strata had not appointed any contractor onsite. Second, any assumption that the applicant otherwise had as to a potential interim role was plainly rejected in the subsequent correspondence with the receivers in September 2017 to which reference has already been made, and the receivers' appointment of Lefand Group on 6 September 2017 as interim building manager. As his Honour correctly found at [385]: The evidence establishes that the accused was not performing such services after early October and that the Lefand Ground provided building management from 6 September 2017.

[36]

11 December 2017 "Maniac Urgent Matters" email

Next, the applicant relied upon his 11 December 2017 "Maniac Urgent Matters" email to Mr Gammel, copied to Mr Madsen, prior to the swearing of his affidavit later that day, and Mr Madsen's response, set out at [62]-[63] above. These emails and the evidence of Mr Gammel, Mr Madsen and the applicant were referred to by his Honour in some detail (at [151]-[157] and [325]-[326]).
The defence case was that even if the evidence established that the applicant did not hold any formal agreement to provide building management services, the Crown could not exclude the possibility that the applicant held a belief that he was authorised to act to provide building management services, concierge services and security services. In rejecting the defence case (at [390]-[392]), his Honour's reasons relevantly included: [391] In evidence the accused said that he sent this email because he was "under the absolute impression that I did have authority to work with On Call and On Call had the authority to work on the job" (T570.40). He said the basis of this belief was that he was "working on the development as building manager with their knowledge" (T571.6), being Mr Madsen and the receivers. [392] … I have referred also to the response of Mr Madsen to the accused, which was copied to Mr Gammel, which noted "I have just spoken with Todd and the best person to provide this is Prestige Strata who are the interim strata manager, they issued the notices to call the meeting. Post the meeting on the 19 when On Call Strata is hopefully appointed we could provide it then". I have referred earlier to the evidence of Mr Madsen as to why he did not assert in a letter that the accused did not hold those positions. Mr Madsen said in evidence that the statement was at a point when it was "quite tense, hence the title "maniac urgent matters". Mr Madsen said that his response must be looked at in the context of the whole of the email which he said made it clear to the accused that Prestige Strata was the interim strata manager and notices had been issued to call the annual general meeting on the 19 December and that "post meeting" when "On Call Strata is hopefully appointed" that "we could provide [the confirmation] then". The failure of Mr Madsen on behalf on the financier and the failure of Mr Gammel acting as the receiver to provide the confirmation sought is consistent with their evidence that at no time was the accused engaged or authorised to carry out building management services at Skypoint Towers. In my view the accused would have been aware from the response that neither Mr Madsen nor Mr Gammel were prepared to accede to his request because they could not assert or confirm that On Call Strata Services was so engaged in the provision of "building management and concierge services (24/7)".

[37]

Residential Manual and the "flyers"

The applicant also referred to two documents, which he misdescribed as Exhibits 6 and 7, but the Crown correctly identified as Exhibit G (Residential Manual) and Exhibit 14 (photographs of flyers of the Skypoint Towers building) as supporting his asserted belief.
As noted, the Residential Manual contained information with respect to building management which was provided by the applicant to the builder for inclusion in the manual in April 2017, prior to the appointment of receivers. His Honour correctly found that the manual was overtaken by subsequent events, noting at [380]: Whilst prior to the appointment of the receivers the evidence, including the content of the resident's manual, supports a conclusion that the accused's entities were promoted as the entity which would carry out building services at Skypoint Towers the position changed upon the appointment of the receivers in June 2017.
As to the "flyers", the applicant gave evidence that he believed the "flyers" had been placed in the lobby of Skypoint Towers in August 2017. Mr Gammel's evidence was that a member of his team had seen the flyers in the lift, alerting the receivers to the presence of Ms Siaflina and On Call Strata providing concierge services. This led to the receivers' emails to the applicant and Ms Siaflina in August and September 2017 informing them that Ms Siaflina's conduct was unauthorised, that she was not engaged by the receivers or the strata manager, and that she had not been granted access to the premises.
Neither the content of the Residential Manual nor the flyers placed in the lobby of Skypoint Towers in August 2017 provide any support for the applicant's asserted belief that he or one of his entities was the building manager at the time of his 11 December affidavit, and his Court appearances on 14 December 2017 and 7 March 2018.

[38]

Deeds of release

Insofar as the applicant submitted that the documents referred to as deeds of release 1 and 2 (see [125(3)] above) support his asserted belief that he or one of his entities was the interim building manager, the premise of that submission was not established given that the application to admit these documents as "new evidence" on appeal has been unsuccessful. In any event, the contents of the deeds of release do not support the applicant's asserted belief. To the contrary, the definition of the "Mehajer Allegations" in both deeds, relevantly, included: "the receivers and managers of the Development have not taken advantage of services, including but not limited to concierge, building management and strata management services, which were offered at no cost to the Companies and have therefore incurred unnecessary cost on behalf of the Companies." (Emphasis added)
In these circumstances, it is unsurprising that the applicant did not seek to tender these deeds at trial.

[39]

Arguments to the contrary: evidence of Ms Lane and Mr Madsen

[40]

Ms Lane

The applicant submits that the trial judge erred in his findings in relation to Ms Lane's evidence. After referring to the evidence of Ms Lane (at [172]-[198]), and the related evidence of Mr Yassine (at [199]-[247]), his Honour addressed the applicant's submission that Prestige Strata had authorised On Call Strata Services to perform building management services (at [397]-[406]), finding that there was no agreement between Prestige Strata and On Call Strata Services for the provision of building services by On Call Strata Services at Skypoint Towers and that the applicant knew no such agreement existed (at [400]).
That finding was based upon a combination of facts which his Honour found had been proved, together with the evidence of Ms Lane, which his Honour accepted (at [400]), including that she could not recall writing the email and was "really unsure how [the email] would have been written as such, because one that is not sort of my vocabulary, how I would write emails, and two, I don't ever remember seeing this chain of emails or anything associated" (at [191]).
Given its importance, it is appropriate to reproduce his Honour's reasons for accepting Ms Lane's evidence over Mr Yassine's evidence (at [404]-[406]): [404] Contrary to the evidence of Mr Yassine that he did not understand that the reference to the curfew related to bail, an examination of the interchanges clearly indicates that both Mr Yassine and the accused were working together to obtain documentation to be produced to the court in support of the accused's case on bail that he needed the curfew, which was between 10PM and 5AM, to be relaxed because of his need to personally attend to building management services, including concierge services during the period of the curfew. Mr Yassine was active in approaching Mr Gammel and Mr Madsen and, when the supportive documentation could not be obtained from them, Mr Yassine approached Ms Lane with a prepared draft letter for her to reproduce under the Prestige Strata Banner. I am of the view that the letter was a fabrication and was obtained at the direction of Mr Yassine. I am of the view that the accused knew it was a fabrication. The expression in the text message from the accused to Mr Yassine of a "fear" that Ms Lane would be contacted by the court to verify the content supports this conclusion. I accept the evidence of Ms Lane that there was no such agreement between Prestige Strata and On Call Strata Services. In my view, having considered the evidence of the accused relating to Prestige Strata and his knowledge of the limitations of the power of Prestige Strata to appoint a building manager, the accused knew On Call had not been appointed the interim building manager by Prestige Strata. Therefore, any assertion or representation by the accused that On Call Strata had been so engaged by Prestige Strata in the interim period or at any time prior to 7 March 2018 when the renewed application for bail was made, was false. [405] I am of the view that Mr Yassine was knowingly facilitating the obtaining of documentation in support of the accused's application to vary the curfew condition of his bail. I am of the view that it can be inferred that Mr Yassine was aware that the material sought by the accused did not represent the true position which was that the accused did not, either himself or through On Call Strata, have an agreement with the receivers or Prestige Strata for the provision of Building management, concierge and security services at Skypoint Towers. In my view the accused's expression to Mr Yassine that "I fear [in case] they call [Ms Lane] and she says we haven't started" provides context to the series of text exchanges between the accused and Mr Yassine on the 11 December and the days following. The text message from the accused at 9:51PM on 13 December, the day before he appeared in court to vary the curfew condition, when he expresses "fear" the court would contact Ms Lane and Mr Yassine's response some four minutes later, "Onecall will only accept your employment on the basis you can undertake the tasks that you are required to undertake you cannot undertake them whilst you are at home", indicates that both the accused and Mr Yassine were knowingly working together in preparing material to be put before the court which was misleading. Mr Yassine's answer, denying the proposition put to him that his response to the accused was connected to giving the accused advice about changing his curfew, that "No, it's not about his curfew, it's about him and his attitude to work in turning up and bonafidely in works and taking out things..." was not a truthful answer and somewhat farfetched. In cross-examination Mr Yassine denied he at any time intimidated Ms Lane into providing her letter of confirmation that On Call Strata were appointed "…as the building management/concierge and security" and denied that he was "dictating terms to her". The continuing assertions by Mr Yassine that whilst he accepted that he drafted the terms of the letter he did not "know what was going on" cannot be accepted as truthful evidence. Little weight can be attached to the evidence of Mr Yassine as his evidence is unreliable. [406] Clearly, as I have indicated, the draft letter prepared by Mr Yassine that was then cut and pasted by Ms Lane into a letter under the Prestige Strata banner, which noted that On Call had been appointed to provide "management/concierge and security", did not represent the true position and was misleading. Prestige Strata did not appoint On Call Strata nor did they have the authority to do so. Whether this misleading representation in Ms Lane's letter was the product of intimidation by Mr Yassine or whether Ms Lane saw an opportunity to obtain a future commercial benefit for Prestige Strata, from improperly assisting Mr Yassine and the accused, cannot be fully reconciled. I am however able to infer that both Mr Yassine and Ms Lane knew the representation was false. I find the accused knew that there was no arrangement in place between Prestige Strata and himself or On Call Strata for the provision of "building management/concierge and security" and knew the representation in the letter from Prestige Strata that he did so, was false.

[41]

Mr Madsen

The applicant also submits that Mr Madsen gave contradictory evidence that "Sarraf Strata had control" to appoint the building manager and that the applicant had "taken advice of Madsen or Sarraf consistent with his evidence". This is a misreading of the evidence. Mr Madsen's answer that "Sarraf Strata had control" was in response to a question as to whether he knew if any organisation had been appointed as "project manager". When the question was corrected by defence counsel as intending to refer to "building manager", Mr Madsen said that was not "something we dealt with" (emphasis added); plainly, the expression "we" was a reference to the lenders, SC Lowy and LIM. He said that it was a matter the receivers would deal with seeking the instruction of the lenders. Insofar as Mr Madsen said that the power to appoint a building manager would rest with the strata manager, that answer was subsequently qualified by Mr Madsen, who said that the receivers "were the parties … the only parties that had control and ability to...appoint someone to those roles", being a reference to the roles of interim strata manager and interim building manager.

[42]

The applicant's lack of knowledge of the Lefand Group

His Honour's finding that it could be inferred that the applicant was made aware of the appointment of the Lefand Group as building managers is contained at [375]-[376] and [386]. The finding at [386] is set out at [225] above. As already indicated, in making that finding, his Honour rejected the applicant's evidence that the Lefand Group was simply the "face" of the building management at Skypoint Towers, and that the applicant continued to provide building management services with the authority of the financiers and receivers: at [376].
The applicant submits that, consistent with his evidence at trial, he could not have known who the Lefand Group was because (a) Mr Madsen's evidence was that he did not immediately know who the Lefand Group was, and (b) not even Prestige Strata were aware who the Lefand Group was, referring to the purported email from Ms Lane to Mr Yassine and the applicant dated 22 December 2017, which is set out at [86] above.
As to (a), the submission is a gloss on the evidence. Mr Madsen expressly referred to the Lefand Group at [24] of his witness statement (Ex 2). On a fair reading of the cross-examination of Mr Madsen on this topic, it is apparent that there was some confusion on Mr Madsen's part that the cross-examiner was referring to the strata manager, not the building manager.
As to (b), putting aside the issue as to the authenticity of this email, which Ms Lane did not recall sending (see [87] above), the submission is a misreading of the email. The reference in the email to the Lefand Group, "not sure if you have hear[d] of them", is a reference to whether Mr Yassine and the applicant had heard of the Lefand Group.
The Crown accepts that there was no communication in evidence that the applicant had been told in September 2017 that it was the Lefand Group that had taken over the building management of Skypoint Towers. Nevertheless, there was evidence that supported the inference that the applicant knew in September 2017 that another building manager had been appointed on an interim basis.
First, in response to the applicant's "kind request" email of 11 September 2017 to be "reappointed" as building manager, the applicant accepted in cross-examination that he was aware of the emails the receivers sent to Ms Siaflina; relevantly, Mr Hocking on behalf of the receivers sent an email to Ms Siaflina on 12 September 2017 advising that "another building manager" had been appointed on an interim basis: see [53] above.

[43]

Corroboration for count 2

There is no dispute that his Honour correctly proceeded on the basis that the common law rule regarding the need for corroboration of evidence where a person is charged with perjury applied to the statutory offence in s 327 of the Crimes Act: see [37] above. His Honour summarised the components of the evidence which provided corroboration of the falsity of the applicant's statements on oath on 14 December 2017 (at [364]): … As I have noted when setting out the elements of Count 2, in proof of the count of perjury the common law provides that for the offence of perjury there must be corroboration; there must be evidence which proves the falsity of the statement. As I have noted the requirement the that the falsity of the statement be corroborated can be satisfied firstly, by evidence of two witnesses attesting to the falsity of the accused's statement; secondly, by one witness with corroboration; thirdly by the "…production of a record which proves itself shown to have known to the accused" (R v Linehan [1921] VLR 582 at 588) and, fourthly by "documentary evidence springing from [the accused] himself". I propose therefore to refer at some length to the evidence of two witnesses in particular, being Mr Madsen and Mr Gammel, and the evidence in the Crown case that corroborates their evidence relating to the question of whether the accused had been "…awarded the contract work" for building management, security and concierge services at Skypoint Towers. In particular I will refer to a body of documents and evidence of communications which are said to corroborate the evidence of Mr Madsen and Mr Gammel that no such agreement existed and that therefore the statement of the accused that there was such an agreement was false.
As noted at [121] above, in his principal conclusions (at [453]-[454]) his Honour identified the evidence which provided corroboration of the falsity of the applicant's statement on oath that he was "awarded the contract". First, it is proved by the evidence of Mr Gammel and Mr Madsen. Second, his Honour found that other evidence in the trial provides substantial corroboration to the evidence these two witnesses gave. It is unnecessary to refer again to the evidence summarised by his Honour (at [454]). There is no merit in the applicant's contention that there was insufficient evidence of corroboration as to the falsity of the applicant's statement on oath.

[44]

Conclusion on ground 5

The evidence in support of counts 1, 2 and 3 was overwhelming. In summary, the evidence well established the following.
First, neither the applicant nor any of his entries including On Call Strata Services had been appointed by either Mr Madsen or the receivers as the building manager of the Skypoint Towers development in August 2017 or any time thereafter, either on an interim basis or at all, and the statements to the contrary in the applicant's 11 December affidavit and on oath by the applicant in the Local Court were false.
Second, from at least 12 September 2017, the applicant was aware that another building manager had been appointed for the Skypoint Towers development on an interim basis until the first AGM, and it can be inferred that from about mid-September 2017 the applicant knew that this was the Lefand Group.
Third, the applicant knew from email exchanges with the receivers in September 2017 that he and his entities including On Call Strata Services were not authorised by the receivers to provide concierge or building management services for the Skypoint Towers development, either with or without charge, and that remained the applicant's belief at the time of his 11 December 2017 affidavit, his statements on oath in the Local Court on 14 December 2017 and the information provided to the Local Court on 7 March 2018. The applicant also knew that Mr Madsen had not appointed the applicant or any of his entities as the building manager of Skypoint Towers.
Fourth, at the time of providing information to the Local Court on 7 March 2018, the applicant knew that his entity, Skypoint Strata Services, had not been appointed the building manager of Skypoint Towers at the first AGM of the residential strata plan held on 19 December 2017 or at the adjourned first AGM of the commercial strata plan held on 30 January 2018. The applicant also knew that the February 2018 letters authored by Mr Ramadan and the proposal document provided to the Local Court on 7 March 2017 were false in describing the employment relationship between the applicant and On Call Strata Services.
Having reviewed the totality of the evidence relating to the applicant's argument, we are satisfied that the evidence established beyond reasonable doubt the elements of each offence the subject of counts 1, 2 and 3.

[45]

Conclusion

Leave to appeal against conviction is granted in relation to grounds 1, 2, 4 and 5, however, the application in ground 3 to admit fresh or new evidence on appeal is refused. The appeal against conviction is dismissed.

[46]

THE SENTENCE APPEAL

As indicated, Judge Zahra imposed an aggregate sentence of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 3 months.
In compliance with the requirement of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"), his Honour indicated the sentence he would have imposed for each offence were it not for the imposition of an aggregate sentence. The offences, their maximum penalties, and their indicative sentences were as follows: Count Offence Act and Section Maximum Penalty Indicative Sentence 1 Between 10 December 2017 and 15 December 2017, in Burwood and elsewhere in the State of New South Wales, Salim Mehajer did an act, namely, the swearing and use of a false affidavit with intent, thereby, to pervert the course of justice. s 319 of the Crimes Act 1900 (NSW) ("Crimes Act") 14 years' imprisonment 2 years' imprisonment 2 On 14 December 2017, at Burwood in the State of New South Wales, Salim Mehajer, in connection with an application to vary bail conditions, made a false statement on oath, knowing the statement to be false, concerning a matter material to the proceedings, namely, whether he had employment which was impacted by bail conditions which had been earlier imposed. s 327(1) of the Crimes Act 10 years' imprisonment 1 year imprisonment 3 On 7 March 2018, at Burwood in the State of New South Wales, Salim Mehajer did an act, namely, provide false information as to the circumstances of his employment, with intent, thereby, to pervert the course of justice. s 319 of the Crimes Act 14 years' imprisonment 2 years' and 6 months' imprisonment

[47]

Grounds of appeal against sentence

The applicant relies on five grounds of appeal, which are set out in the applicant's handwritten submissions on the sentence appeal as follows: Ground 1 - The sentence imposed upon the Appellant is manifestly excessive; Ground 2 - The learned sentencing judge erred in his assessment that specific deterrence was required to be "strongly engaged"; Ground 3 - The learned sentencing judge erred in properly applying the appropriate aggregate sentence and as to consideration [of] whether the aggregate was just and appropriate; Ground 4 - The learned sentencing judge failed to give adequate weight to the onerous conditions that the Appellant has been subjected to - i.e., solitary confinement and Covid-19; and Ground 5 - The learned sentencing judge erred in so far as his Honour limited his consider[ation] of the psychological condition of the Appellant to the determination of the sentence period and did not adequately consider those factors with respect to the fixing of an appropriate aggreg[ate] non-parole period.
Given that at least Ground 4 is more appropriately considered as particulars of the manifest excess ground (Ground 1), rather than as an individual error, it is necessary to deal with Grounds 2 - 5 before determining Ground 1.

[48]

Facts of the Offending

The facts giving rise to the offences are set out in the sentencing judge's Remarks on Sentence ("ROS"), dated 23 April 2021. A comprehensive analysis of the evidence adduced at trial, and upon which his Honour made findings, is provided in his Honour's verdict judgment, delivered on 2 October 2020.

[49]

The Applicant's Case on Sentence

In sentencing proceedings, the applicant's case included two letters written by the applicant and addressed to the Court, dated 12 February 2021 and 31 March 2021 respectively (Exhibit 2 and Exhibit 8); a psychological report by Dr Antony Henderson, dated 9 September 2020 (Exhibit 4); and a psychological report by Ms Ann Marie De Santa Brigida, dated 17 November 2020 (Exhibit 6).
In addition, the affidavit of Mohamed Mehajer (the applicant's father), dated 30 March 2021, and the affidavit of Zenah Osman (the applicant's sister), dated 30 March 2021, were read.

[50]

The Remarks on Sentence

The sentencing judge identified the objective seriousness of each offence as within the middle of the range. In making that determination, his Honour found that the applicant engaged in significant planning and preparation of documentation. The applicant contemplated the matters the Court was required to consider under the Bail Act and tailored the content of his affidavit and false documentation to address the various bail considerations.
His Honour acknowledged that offences of perverting the course of justice are of substantial gravity, and that such offending strikes at the very heart of the justice system and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10]; PO v R [2020] NSWCCA 129 at [40].
His Honour noted: [T]he fact that an attempt to pervert the course of justice did not succeed was doomed to fail is a far less significant than in the case of sentencing for an attempt to commit some other substantive offence. It is the tendency of the conduct which is decisive and it is irrelevant whether or not the conduct brings about the miscarriage of justice.
His Honour did, however, have regard to the case of R v Finnie and Finnie [2007] NSWCCA 38, where it was noted that an offence intended to influence the grant of bail is not generally as serious as an offence intended to pervert a trial or sentencing proceedings.
In light of the findings made, his Honour concluded that the sentence imposed must contain a strong measure of both specific and general deterrence.
In relation to the applicant's mental state at the time of the offending conduct, his Honour was not persuaded that the applicant's underlying mental health condition was causally connected to his deliberate conduct in misleading the court in the course of his applications for bail. His Honour was not persuaded that any underlying condition operated to otherwise reduce the objective gravity of the offending.
The applicant committed Count 1 and Count 2 whilst on bail for an offence of assault occasioning actual bodily harm and an offence of destroy/damage property. He committed Count 3 whilst the subject of two good behaviour bonds imposed under s 9 of the CSPA. The sentencing judge clearly stated that the fact the applicant was subject to conditional liberty, does not elevate the objective seriousness of the offending. Instead, it demonstrated a continuing disobedience and lack of insight into his obligations to the Court, a matter to be reflected in the sentence imposed.

[51]

Ground 2 - The sentencing judge erred in his assessment that specific deterrence was required to be strongly engaged

The applicant submits the need for specific deterrence is usually regarded as greater where the offence is more serious. The applicant also submits that whilst there are "past minor offences" on his criminal record, the sentencing judge did not have any material relating to the facts of those offences and, therefore, could not have formed the view that the totality of the applicant's convictions required "a strong measure of specific deterrence".
The Crown submits that there was no error and his Honour's finding that the sentence imposed "required a strong measure of specific deterrence" was based upon "the nature of the crimes committed and the demonstrated attitude of the offender in carrying them out rather than the applicant's antecedents."

[52]

Consideration

In his ROS, the sentencing judge stated that the "sentence imposed must contain a strong measure of specific deterrence." Contrary to the applicant's submissions, this finding was not made on the basis of the applicant's criminal record. Instead, the sentencing judge found that the applicant placed his own interests over the community's interest in the preservation of the integrity and authority of the courts.
It was the applicant's conduct in making misleading statements to the Court and in relying on false documents that warranted a strong measure of specific deterrence. Given the nature of the offending, including planning and preparation of documentation to address matters that the applicant knew were relevant to the Court's consideration of his bail applications, it was open to the sentencing judge to find that at the time of offending the applicant had attained a high level of knowledge of the principles applicable to bail applications.
Furthermore, there is clear authority for the proposition that offences of perverting the course of justice strike at the very heart of the justice system and warrant sentences that reflect a strong element of specific and general deterrence.
This proposed ground is not made out.

[53]

Ground 3 - The sentencing judge erred in properly applying the appropriate aggregate sentence and as to consideration of whether the aggregate was just and appropriate

The applicant submits that the sentencing judge did not correctly consider the similarity of the offences and the period within which the offences took place. The applicant contends that this alleged failure resulted in his "double punishment". The applicant submits that the sentence is "crushing", and a greater measure of concurrency is warranted in the circumstances.
In R v Van Ryn [2016] NSWCCA 1, R A Hulme J helpfully summarised some of the authorities going to the issue of totality in sentencing: [228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. [229] In R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46], the Court (McClellan CJ at CL, Hulme and Hislop JJ) emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences by endorsing the remarks of Sully J in the two-judge bench decision in R v Wheeler [2000] NSWCCA 34 at [36]-[37]: ... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose. It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour." [230] In R v XX (2009) 195 A Crim R 38 at [52], Hall J set out a number of propositions derived from the case law concerning the discretionary exercise of ordering sentences to be served concurrently or cumulatively in accordance with the principle of totality. They included reference to the following passage in the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]: … [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (Emphasis added.)

[54]

Consideration

The sentencing judge considered the issues of accumulation and totality at [106] - [109] of his ROS. His Honour accepted that "all three counts significantly overlapped" but did not accept that they did so to a "considerable extent". The principle of totality was considered with his Honour recognising that the sentence imposed must reflect the total criminality.
Although the criminality, broadly speaking, was directed to an attempt by the applicant to influence the result of two bail proceedings by knowingly providing false information, the offending constituted discrete criminal acts perpetrated over a number of months. In those circumstances, it was entirely open to the sentencing judge to impose an aggregate sentence that reflected a measure of accumulation. The total accumulation was a period of one year. The degree of accumulation is not excessive, having regard to the nature and extent of the deliberate acts engaged in over many months.
This proposed ground fails.

[55]

Ground 4 - The sentencing judge failed to give adequate weight to the onerous conditions that the applicant has been subjected to, namely, solitary confinement and COVID-19

The applicant submits that the sentencing judge failed to give adequate weight to the onerous conditions in custody by virtue of restrictions brought about by the COVID-19 pandemic and "solitary confinement".
The Crown notes that the applicant's complaints are not of any specific error, but of the weight that his Honour gave to these considerations. Accordingly, the Crown submits that these complaints are more appropriately considered as particulars of the manifest excess ground (Ground 1), as opposed to being considered as amounting to an individual error.

[56]

Consideration

The applicant's custodial records contained an entry, dated 20 December 2020, which notes that the applicant had been classified as "PRNA [Protection Non-Association], high media profile, Hx self-harm, bipolar, depression and anxiety" (Exhibit A, Tab 4, p 13). The applicant was placed in protective custody, at least in part due to his "high media profile". It is important to clarify that the material does not establish that the applicant was in "solitary confinement" as a punitive measure.
His status as a PRNA prisoner meant that he was subject to more restrictive conditions in custody. Further, the increased restrictions in custody caused by the COVID-19 pandemic meant greater isolation and increased restriction of the applicant's movements and contact with other prisoners.
The restrictive conditions, which resulted in "significant deprivations", were taken into account by the sentencing judge. Acknowledging the applicant's hardship in custody, his Honour had regard to two letters prepared by the applicant which were tendered in his sentencing proceedings (Exhibit 2 and Exhibit 8). His Honour also took into account, and was alive to, the opinions of psychologists that it was unlikely that the applicant's mental health condition would be stabilised in custody. Indeed, given the opinions expressed by the experts, and in particular Ms Brigida, his Honour made a finding of special circumstances.
It is apparent that his Honour took into account the conditions in which the applicant served his presentence custody, the absence of adequate psychiatric care in custody, the restrictive regime due to the COVID-19 pandemic and the applicant's custodial status as part of "the mix of subjective circumstances".
The applicant has not demonstrated that the sentencing judge failed to give adequate weight to the restrictions brought about by the COVID-19 pandemic and his status as a PRNA prisoner.
This proposed ground has not been made out.

[57]

Ground 5 - The sentencing judge erred in so far as his Honour limited his consideration of the psychological condition of the applicant to the determination of the sentence period and did not adequately consider those factors with respect to the fixing of an appropriate aggregate non-parole period

The applicant relies on the contents of Dr Henderson's expert report (Exhibit 4) to support the contention that the sentencing judge erred in limiting his consideration of the "psychological condition" of the applicant to the determination of the sentence period, and did not adequately consider those factors with respect to setting the non-parole period.
The Crown submits there was "no substance to the ground as pleaded because his Honour specifically made a finding of special circumstances based upon the need for the applicant to engage in treatment for his underlying mental health conditions." His Honour's findings in relation to Dr Henderson's expert evidence was open to him and was explained in detailed reasons.

[58]

Consideration

An application to re-open the defence case to hear further evidence was made on 16 September 2020 and was granted. The defence case proceeded to adduce evidence from Dr Henderson as to the applicant's mental health.
That report set out the history of the applicant's bipolar disorder, which although diagnosed after the offending behaviour, likely existed at the material time. The report stated that "around the material time", the applicant was experiencing "grandiosity, feeling invincible, increased energy, racing throughs and impulsive behaviour".
In his ROS, the sentencing judge did not accept the opinion of Dr Henderson that the applicant was "acting impulsively, being disorganised and lacking insight". His Honour went on to state at [60]: In my view, the offender engaged in many deliberate acts over many months. His manoeuvrings to obtain a strata and building management agreement were calculated and persistent. He engaged in continuing correspondence with financiers and receivers. He restructured companies in such a way that he presented himself at arms-length but was able to maintain control … Against the background of the conduct of the offender and the many steps he had undertaken in the months prior to and at the time he swore the affidavit and made applications for bail to which I have referred in my trial by Judge alone judgment I cannot accept the opinion of Dr Henderson that, because of underlying mental health conditions, that the offender was "disorganised" and "inattentive to detail" or that the offender was "probably not aware that he was making exaggerated or misleading statements or that he was aware of wrongdoing at the material time.
His Honour accepted the evidence that the applicant had a history of bipolar disorder; however, his Honour was not of the view that the condition "significantly impacted upon the offender's cognitive or moral culpability for his offending." There was no "causative nexus" between the mental health condition and the offending.
It was entirely open to the sentencing judge to make this finding in light of the deliberate acts perpetrated by the applicant, of which his Honour was satisfied beyond reasonable doubt. His Honour was satisfied that the applicant used corporate structures that he had designed to retain control of strata and building management of the Skypoint Towers development. These structures were previously in place to "shroud the [applicant's] control of these corporate entities and to create the impression that he was at arms-length from any contractual arrangement entered into by the corporate entities relating to the Skypoint Towers development".

[59]

Ground 1 - The sentence imposed upon the applicant is manifestly excessive

The applicant submits that the substance of Ground 1 is strengthened when Grounds 2, 3, 4 and 5 are considered. We have considered those individually above and determined that each Ground 2-5 has failed.
The applicant submits "there must have been some misapplication of principle or an error, as the sentence imposed is far outside the available sentencing range in this case."
Further, the applicant submits that although the offending was serious, "there were factors present in this case which should have led his Honour to impose a lesser sentence." Those factors are as follows: 1. The learned sentencing judge erred in attributing a higher level of responsibility to the applicant because the applicant had properly understood the Bail Act. The applicant submits this is an error because he is not a lawyer; 2. The full offending was not of a long duration and extended from December 2017 to March 2018; 3. No damage to the system actually resulted because bail was not varied or granted. Therefore, a perversion of the course of justice was averted; and 4. That there was no planning involved as "assumed by the learned trial judge".
The Crown submits that the findings made by the sentencing judge were open on the evidence.

[60]

Consideration

When dealing with an appeal on sentence, the question is not whether the court hearing the appeal would have exercised the sentencing discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29.
There is no single correct sentence, as sentencing is a discretionary exercise (Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24]). The weight to be attributed to the evidence and various sentencing matters is a matter for the sentencing judge (Bugmy at [24]).
To establish that a sentence is manifestly excessive, it is necessary to show that it is "unreasonable or plainly unjust" (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]).
In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], R A Hulme J helpfully summarised the principles that relate to an appeal where it is contended that the sentence imposed was manifestly excessive: When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]). Rather, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Wong at [58].

[61]

Application for leave to rely upon further medical evidence on appeal

After the Court reserved judgment on the appeal, the applicant made an application by letter dated 25 October 2022 to rely upon pars [3]-[6] of his unsworn affidavit dated 24 October 2022, which in turn sought to rely upon a report of Dr John Roberts, a psychiatrist, prepared in about February 2022, in support of a civil damages claim brought by the applicant in other proceedings. The report itself was not put before the Court on the application for leave to reopen as apparently it is not in the applicant's possession.
The report would only possibly become relevant as evidence of events occurring since the sentence hearing, if the Court found error by the sentencing judge and proceeded to resentence: Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [124]. As the sentence appeal has failed and the issue of resentence does not arise, it is not necessary to address the application for leave to rely upon this report. Nor is it necessary to address the difficulty arising from the applicant's inability to tender the report he seeks to rely upon, or the applicant's related application for a suppression order in respect of the contents of the report.

[62]

Conclusion on sentence appeal

Although leave to appeal against sentence is granted, the appeal is dismissed.

[63]

RELEASE APPLICATION

After the Court reserved judgment on the appeal, the applicant filed a release application on 5 August 2022 pursuant to s 49(1) of the Bail Act 2013 (NSW). The applicant has standing to make a release application as "a person accused of an offence" which expression is defined in s 4(1) of the Bail Act as including "(c) a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending".
An earlier application for bail pending appeal was dismissed by this Court on 16 February 2022: Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23. A further application for bail pending appeal was dismissed by this Court on 22 June 2022: Mehajer v R [2022] NSWCCA 135.
With respect to an application for bail pending appeal, s 22(1) of the Bail Act applies so that the applicant must demonstrate that special or exceptional circumstances exist that justify the granting of bail, otherwise the application must be refused.
In addition, s 74(1) of the Bail Act contains a limitation on the power of a court to hear another release application, unless there are "grounds for a further release application". The phrase "grounds for a further release application" is, relevantly, defined in s 74(3) of the Bail Act in these terms: (3) For the purposes of this section, the grounds for a further release application are - (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or ...

[64]

Submissions

The applicant's written submissions dated 5 August 2022, only addressed the issue of the special or exceptional circumstances. The applicant relied upon the following matters in support of his release application: (a) he has already served approximately 22 months of his non-parole period of 27 months; (b) it is possible that by the time the decision on the appeal is handed down, the applicant would have served most, if not all, of his non-parole period; (c) even if the appeal against conviction is not successful, the appeal against sentence has reasonable prospects of success; and (d) the applicant requires being at liberty so as to secure legal representation for other matters for which he is currently on bail and which are listed for hearing.
As the applicants' written submissions did not address issue raised by s 74(1) of the Bail Act limiting the Court's power to hear another release application, the applicant was afforded an opportunity to provide further written submissions directed to that issue. The applicant did not seek an oral hearing and the parties were informed that the Court would deal with the application on the papers.
In his further submissions, the applicant relied upon s 74(3)(c) of the Bail Act. He submits that the circumstances which have changed since his previous release application are: 1. the appeal has now been heard and judgment is reserved, and it is highly likely that the applicant will be successful at least on his sentence appeal; and 2. the applicant is currently self-represented, his fresh application to Legal Aid was refused with respect to other pending charges and he would be able to obtain funding for a psychiatrist report capable of satisfying Legal Aid that aid should be granted in a shorter timeframe, if at liberty.
The applicant also referred to other "mitigating factors" supporting his application, contending that he would have greater ability to address his debt or annul his bankruptcy, if at liberty.
In addition, by letter dated 26 October 2022, the applicant sought leave to rely upon the report of Dr John Roberts, a psychiatrist, prepared in about February 2022, in support of his release application. As indicated, the report itself was not put before the Court as it is apparently not presently in the applicant's possession.
The Crown opposed the release application on the basis that the applicant has not demonstrated there are grounds for a further release application, nor are there special or exceptional circumstances.

[65]

Determination

None of the matters referred to in the applicant's submissions amount to a relevant change in circumstances since his previous release application which was dismissed by this Court on 22 June 2022.
First, that the applicant is currently unrepresented in other matters, is seeking legal aid for those other matters and is also seeking to annul his bankruptcy, do not amount to a change in circumstances. All of those circumstances existed at the time of his previous release application.
Second, that the applicant has to wait for a decision in his appeal is not a relevant change in circumstances. Nor is the applicant's opinion as to the prospects of success of his appeal a change in relevant circumstances.
Third, the applicant's asserted psychological condition to which the report of Dr Roberts is said to be relevant, is not a relevant change in circumstances, as the issue of the applicant's psychological condition was a matter agitated on his previous release application before this Court in June 2022, which was dismissed (Mehajer v R [2022] NSWCCA 135 at [8]) and this report was available at the time of the previous release application. It is no answer for the applicant to say as he does in his unsworn affidavit, which can be treated as a submission, that he did not put this report before the Court on his previous release application "because I had genuine fears, that I will not be believed".
It follows that the Court must refuse to hear another release application: Bail Act, s 74(1). Accordingly, the release application will be dismissed.
Even if, contrary to our view, grounds for a further release application had been established, we are not satisfied that any of the matters identified by the applicant amounts to special or exceptional circumstances to justify the grant of bail. Moreover, given the disposition of the appeal we note that the Court's power to grant appeal bail under s 22(1)(a) of the Bail Act no longer apples.

[66]

Orders

The Court makes the following orders: 1. Leave to appeal against conviction granted on grounds 1, 2, 4 and 5. 2. The application to admit fresh or new evidence on appeal is refused. 3. Appeal against conviction dismissed. 4. Leave to appeal against sentence granted. 5. Appeal against sentence dismissed. 6. Release application filed 5 August 2022 dismissed.

[67]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2022

002] NSWCCA 196; (2002) 131 A Crim R 172 R v Linehan [1921] VLR 582; (1921) 27 ALR 348 R v Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24 R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 R v Van Ryn [2016] NSWCCA 1 Tarrant v R [2018] NSWCCA 21 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 Category: Principal judgment Parties: Salim Mehajer (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: Applicant in person B Hatfield (Respondent)

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