Mehajer v R - [2024] NSWCCA 226 - NSWCCA 2024 case summary — Zoe

NSWNSWCCA

Mehajer v R

[2024] NSWCCA 226

Court of Criminal Appeal (NSW)|2024-10-23|Before: Kirk JA, Rothman J, Yehia J, Faulkner JJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2024-10-23

Before

Kirk JA, Rothman J, Yehia J, Faulkner JJ

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Solicitors: S Mehajer (Self-represented) P Hogan (Respondent) File Number(s): 2024/00333241

[2]

JUDGMENT

KIRK JA: I agree with Yehia J.
ROTHMAN J: I agree with the orders proposed by Yehia J and her Honour's reasons for those orders.
YEHIA J: The applicant was found guilty of two groups of offences following two separate trials in the District Court. The first trial related to domestic violence offences committed against the applicant's then partner ("the domestic violence offences"). The second trial related to the creation of false documents and their use ("the false documents offences").
On 9 May 2024, the applicant was sentenced by Bennett SC DCJ for both sets of offences. The applicant most recently filed a Notice of Intention to Appeal on 1 August 2024 in respect of both sets of offences. In each case, the appeal relates to conviction and sentence. As at the time of hearing this application, no Notice of Appeal had been filed.
On 28 August 2024, the applicant made a bail application before this Court, differently constituted ("the previous bail application"). The application was refused: Mehajer v Director of Public Prosecutions [2024] NSWCCA 172 ("Mehajer (CCA, 2024)") at [108] per the Court, comprising Fagan, N Adams and Faulkner JJ.
On 23 October 2024 the Court heard the present bail application. In addition to the material relied upon in the previous bail application, the applicant relied upon his unsworn affidavit dated 14 October 2024, the affidavit of Zawat Zreika sworn 22 October 2024 (together with Annexures "A" to "E" to that affidavit) and the affidavit of Fawzi Faytrouni sworn on 22 October 2024. The applicant also filed written submissions dated 3 September 2024 and an addendum document which included a "draft merit advice/submissions on appeal" dated 16 October 2024.

[3]

Background

The judgment of the Court on the previous bail application included a comprehensive recitation of the relevant background. Although the present application is a fresh application and entirely separate to the previous bail application, the background remains relevant and has been largely replicated here.
As indicated above, the applicant has been convicted of two groups of offences for which bail is sought.
The background relating to the domestic violence offences is set out at [5]-[11] of Mehajer (CCA, 2024) by the Court, comprising Fagan, N Adams and Faulkner JJ: "[5] On 10 May 2023 the applicant was convicted for seven domestic violence offences arising from his prior marriage. It is not necessary to set out the details of the offending conduct other than the following high level summary. [6] In April 2018 the applicant repeatedly punched his former wife, MB, when they were driving in a car. It followed an argument about an item of jewellery that MB had intended to wear. On another day in April 2018 the applicant grabbed and squeezed MB's hand so hard that the screen of the phone she was holding cracked. In June or July 2019 the applicant and MB had an argument, during which he dragged her to the laundry and threatened to kill his mother-in-law if MB ever reported him to the police. On 4 October 2020 the applicant and MB had an argument, during which the applicant grabbed her and put his hand over her nose and mouth so that she was unable to breathe and passed out. [7] In December and January 2021 the applicant was charged with domestic violence offences arising from the above conduct. He was already in custody for unrelated offences. [8] The case was eventually listed for trial on 27 March 2023. [9] The applicant represented himself at the trial. At the commencement of the trial, the applicant applied for a stay on the ground that he was unrepresented and he wished to arrange legal representation. On 5 April 2023 Bennett SC DCJ dismissed the stay application finding that the applicant had not proved that he was indigent. Bennett SC DCJ further found that the applicant was capable of representing himself. [10] On 12 April 2023 the applicant filed an application for leave to appeal against the refusal of the stay under s 5F(3) of the Criminal Appeal Act 1912 (NSW). On 17 April 2023 the Court (Davies, Ierace and Cavanagh JJ) dismissed the application for leave under s 5F(3): Mehajer v R [2023] NSWCCA 101. [11] The trial before Bennett SC DCJ proceeded from 19 April until 10 May 2023, upon which date verdicts of guilty were entered by the jury for all counts."
The background relating to the false documents offences is set out at [12]-[15] of Mehajer (CCA, 2024): "[12] The second group of offences for which the applicant has been convicted relate to making and using false documents to obtain an advantage. The applicant was declared bankrupt on 20 March 2018. On 4 March 2020 the police seized $6,530 in cash when searching the applicant's residence. The applicant's trustee in bankruptcy claimed the money. The applicant claimed that the money belonged to his sister. He obtained a supporting statutory declaration purportedly declared by his sister. He also swore an Affidavit in support of an application to have the trustee removed. His Affidavit was purportedly witnessed by a named solicitor. Both the sister and the solicitor subsequently denied their signatures. [13] On 11 May 2020 the applicant was charged in relation to this conduct. On 8 October 2021 the case was listed for trial on 24 October 2022. In about August 2022 legal aid ceased representation of the applicant and the trial date was vacated and relisted for 13 June 2023. [14] Eventually the trial commenced on 19 June 2023 before Bennett SC DCJ. The applicant had legal representation at the trial. An application was made to vacate the trial based on the applicant's inability to access material on two of his phones which had previously been seized by police. The application was refused. [15] On 30 June 2023 verdicts of guilty were entered for all counts by the jury."
Added to this background is that in August 2024 the applicant pleaded guilty to a further two groups of offences. They are: 1. One offence of doing an act to pervert the course of justice, namely staging a motor vehicle collision to avoid a court hearing on 16 October 2017 (with a further offence of dishonesty, appearing on a Form 1); and 2. Six offences arising from falsely nominating other people as the driver of vehicles in which traffic offences were committed (with a further 10 offences on a Form 1).
The applicant was sentenced for these offences by Hunt DCJ on 22 October 2024 to an aggregate term of imprisonment of 24 months commencing on 15 August 2023 and expiring on 14 August 2025 with a non-parole period of 16 months. The first day upon which the applicant is eligible for release to parole, with respect to this sentence, is 14 December 2024.

[5]

Intended grounds of appeal

The applicant's proposed grounds of appeal for both sets of convictions are set out in the "Revised Applicant's Submissions - Release Application" document, dated 3 September 2024. The applicant's proposed grounds for the intended appeal against conviction for the domestic violence offences are as follows: "GROUND No.1: The appellant's trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for Counsel to appear for the appellant at the trial with the consequences that, in all circumstances of the case, the appellant was deprived of his right to a fair trial and of a real chance of acquittal; GROUND No.2: The appellant's trial miscarried by virtue of the trial judge's failure to adjourn the trial until the appellant's mobile phones were forensically downloaded; GROUND No.3: The appellant has available to him fresh and new evidence relevant to the complainant's credit; and GROUND No.4: The appellant's verdicts were unreasonable and incapable of being supported by the evidence."
The applicant's proposed grounds for his intended appeal against his sentence for the domestic violence offences are as follows: "GROUND No.1: The total sentence and the non-parole period imposed upon the appellant are manifestly excessive; GROUND No.2: The learned sentencing judge erred in properly applying the appropriate aggregate sentence, and as to considering whether the aggregate was just and appropriate; GROUND No.3: The learned sentencing judge failed to give adequate weight to the onerous custodial condition and extra-curial punishment to which the applicant had been subjected to; GROUND No.4: The learned sentencing judge failed to give adequate weight to the onerous bail conditions to which the applicant had been subjected to prior to being convicted; GROUND No.5: The learned sentencing judge erred by increasing the balance of term of the sentence imposed on count seven to reflect the finding of special circumstances; and GROUND No.6: The learned sentencing judge failed to give adequate weight to the appellant's 'back-date' period on sentence and therefore failed to consider whether the aggregate was just and appropriate."
The applicant's proposed grounds for his intended appeal against his conviction for the false documents offences are as follows: "Ground No. 1: The directions given to the jury in response to the third jury note was inconsistent and apt to confuse causing a miscarriage of justice; Ground No.2: The appellant's convictions to Count 2 and Count 4 were unreasonable and unable to be supported by the evidence; Ground No.3: The appellant has available fresh and new evidence relevant to Count 1, Count 2, Count 3 and Count 4; and Ground No.4: There was a miscarriage of justice occasioned by the acts of the appellant's legal representatives by not securing the appellant's laptop which was lost in the court room during the trial."
The applicant's proposed grounds for his intended appeal against his sentence for the false documents offences are the same as for the domestic violence offences, but for Ground 5.

[6]

Section 74 of the Bail Act 2013 (NSW)

Having been refused bail by this Court on 28 August 2024, the applicant must establish grounds for a further release application. Section 74(3) of the Bail Act relevantly provides: 74 Multiple release or detention applications to same court not permitted … (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 (d) the person is a child and the previous application was made on a first appearance for the offence. …
The applicant's written submissions dated 3 September 2024 in support of this application, rely upon the following change in circumstances. First, that the applicant's family home will be subject to a "mortgagee in possession" sale, with a sale date confirmed to take place on 26 October 2024. Second, that the applicant has had all of his "outstanding matters" dealt with. Third, that the applicant is now represented on the application. The applicant abandoned this third ground because he continues to be unrepresented.
The primary change in circumstances is that the applicant has now been sentenced for the unrelated outstanding matters. As indicated above, his non-parole period in relation to that sentence, expires on 14 December 2024. The Crown accepted that there is a change of circumstance such that the applicant has discharged his onus pursuant to s 74(3)(c).
When the applicant made an application for release on 28 August 2024, he was an unsentenced prisoner in relation to the unrelated offences. He has now been sentenced in relation to those matters and it is clear, given the structure of the sentence imposed by Hunt DCJ, that from 15 December 2024, the applicant will be in custody in relation to the appeal matters only.
I am prepared to find there are grounds for a further release application.

[10]

Special or Exceptional Circumstances

The applicant bears the onus of establishing special or exceptional circumstances on the balance of probabilities: s 32(1) of the Bail Act. The requirement to establish special or exceptional circumstances is at least as onerous as the requirement to show cause under s 16A(1) of the Bail Act: El-Hilli & Melville v R [2015] NSWCCA 146 ("El-Hilli") at [11] per Hamill J (Simpson and Davies JJ agreeing).
In HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 at [24], Hamill J (Bathurst CJ and Bell P, as his Honour then was, agreeing) said: "…four things may be observed. First, s 22 creates a significant hurdle to an applicant for bail who is pursuing an appeal against a conviction or sentence in proceedings prosecuted on indictment. Secondly, unlike the 'show cause' requirement in ss 16A and 16B of the Bail Act 2013, s 22 incorporates the exhaustive list of factors in s 18 that guide a consideration of whether there is an unacceptable risk in releasing an offender to bail. Third, 'special or exceptional circumstances' may exist as a result of a combination of circumstances or features of a case. It is not necessary to establish that the appeal is almost certain to succeed. Fourth, two commonly arising considerations are whether the appeal is arguable or enjoys reasonable prospects of success and whether the sentence the subject of the appeal is likely to expire before the appeal is determined." (Footnotes omitted.) See also Mehajer (CCA, 2024) at [40] per the Court, comprising Fagan, N Adams and Faulkner JJ; Park v R [2022] NSWCCA 263 at [10] per the Court, comprising Basten AJA, Garling and R A Hulme JJ; R v Williams [2020] NSWCCA 348 at [6] per Campbell J (Simpson AJA and Bellew J agreeing); Trevascus v R [2020] NSWCCA 323 ("Trevascus") at [13] per Johnson J (McCallum JA, as her Honour then was, and R A Hulme J agreeing).
In Decision Restricted [2023] NSWSC 36, I summarised the principles relevant to s 22 of the Bail Act in the following way at [25]-[32]: "[25] Accordingly, bail can only be granted if an applicant establishes that there are 'special or exceptional circumstances' that justify a decision to grant bail: see R v Moore [2015] NSWSC 1262 at [3]. [26] First, in cases involving show cause offences, the requirement to establish 'special and exceptional circumstances' applies rather than the requirement that the applicant show cause why their detention is not justified as per ss 16A and 16B of the Bail Act. This suggests that the requirement to establish 'special and exceptional circumstances' is at least as onerous as the requirement to show cause. It is well established that s 22 poses a 'significant hurdle' to any grant of bail: see El-Hilli and Melville v R [2015] NSWCCA 146 at [11] (El-Hilli and Meville); Gould v R (Cth) [2021] NSWCCA 27 at [29]. Second, the unacceptable risk test continues to apply to a bail decision made under s 22. [27] What must be shown is that there is some situation which is out of the ordinary, or unusual in some respect, which the applicant can point to as being special or exceptional. Harrison J considered the requirement for exceptional circumstances in R v Naizmand [2016] NSWSC 836, at [8], as follows: 'The expression "exceptional circumstances" is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what I looked for are circumstances that are, or that appear to be, an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics.' [28] In Director of Public Prosecutions (NSW) v Van Gestal [2022] NSWSC 973, Garling J observed that the phrase 'special or exceptional circumstances' is to be found in different places in the Bail Act. His Honour concluded that there is no reason that the phrase means different things in different parts of the Act. In Bobbi v R [2021] NSWCCA 44, Hamill J (with whom McFarlan JA and Walton J agreed) said that there was '…. no fetter on the things that might constitute "special or exceptional circumstances"'. [29] In R v Watson [2017] ACTSC 311, Penfold J, referring to the meaning of the words 'special or exceptional circumstances', said, at [42]: 'The words do not mean "unique or unprecedented or very rare". It must, however, be something which distinguishes the applicant's case from others, to take it out of the usual or ordinary case. An application must establish that there are some unusual or uncommon circumstances which must favour the granting of bail.' [30] The authorities also show that the concept of exceptional circumstances is a flexible one which requires a case-by-case examination. Such circumstances may be constituted by a combination of matters together, features that are subjective to an applicant, features which bear upon the nature of the alleged offence, and features which emphasise that the applicant is otherwise a person who will answer bail: see R v Khayat (No 11) [2019] NSWSC 1320 at [14]. [31] Where the grounds of appeal are put forward as the only or principal factor to demonstrate 'special or exceptional circumstances', an applicant has to show much more than that the grounds seem arguable; it may be necessary for the respondent to establish that the appeal is most likely to succeed: see [Trevascus] v R [2020] NSWCCA 323 at [15]; El Khouli at [27]; R v Williams [2018] NSWSC 994 at [25] and [38]; El-Hilli and Melville at [11]; and Petroulias v R [2010] NSWCCA 95 at [34]. [32] If, however, the merit of the appeal is put forward as part of a combination of factors to demonstrate 'special or exceptional circumstances', the relevant criteria in assessing the merits of the appeal would appear to be whether the grounds relied upon by the applicant in the appeal were reasonably arguable, or that there were reasonable prospects for the appeal: see El-Hilli and Melville at [29]; El Khouli at [27]."
The question as to whether special or exceptional circumstances exist, needs to be determined in light of all the circumstances of the case and not just one circumstance viewed in isolation.

[11]

Applicant's Submissions

The applicant relies upon seven grounds to establish special or exceptional circumstances. They are essentially the same as those relied upon in the previous bail application. However, because this is a fresh release application, the grounds relied upon must be assessed by reference only to the material and submissions made during the present application. The grounds and the submissions relied upon in support of them can be summarised as follows.
First, the applicant submits that if not granted bail the utility that may otherwise be achieved by the appeal is diminished. The non-parole period of the sentence which is the subject of the appeal will expire on 18 July 2025. In the event the applicant is refused bail, the applicant would have served a significant portion of his sentence prior to the resolution of his appeal.
Second, the appeal against conviction and sentence enjoy reasonable prospects of success. The applicant addressed the proposed grounds of appeal, submitting that the appeal is meritorious.
Third, the applicant contends that he must be at liberty to access critical evidence relevant to his appeal. The applicant submitted that he needs to be at liberty so that he can recover his SIM-card to access vital evidence. Attempts to obtain his SIM-card from prison have been unsuccessful. The assertion that he must present in person to a telecommunications provider to undertake a verification process, was not the subject of challenge.
Fourth, the applicant will be unrepresented on his appeal. The applicant submitted that he is at a significant disadvantage in preparing his appeal because of his conditions in custody. The applicant asserts that he is detained in "segregation". He does not have access to a computer and has not received all the trial transcripts which he requires to properly prepare his appeal.
Fifth, the applicant relies upon the delay in his sentence proceedings being finalised which has meant a delay in preparing for his appeal. The applicant was found guilty of the domestic violence offences on 10 May 2023. He was found guilty of the false documents offences on 30 June 2023. He was sentenced by Bennett SC DCJ on 9 May 2024.
Sixth, the applicant has now been sentenced for the unrelated matters, being eligible for release to parole, with respect to those matters on 14 December 2024.
Seventh, the applicant must be at liberty to prevent his family home from being sold by a "mortgagee in possession".

[13]

Inability to prepare in custody

At the hearing, the factor which weighed most heavily with me was the need for the applicant to be at liberty to prepare his appeal. The applicant submitted that he is detained in "segregation" and has limited access to the resources necessary to adequately prepare for his appeal.
The Crown subsequently filed further material and supplementary submissions relevant to the applicant's conditions in custody. The affidavit of Adam Wilczek, sworn on 30 October 2024, contains a review of the applicant's custodial record and the prisons in which he has been detained since April 2022. The evidence includes the results of enquiries with representatives from each correctional centre about the applicant's custodial status and his access to resources.
The applicant has previously been detained in the Metropolitan Remand & Reception Centre ("MRRC"), the Mid North Coast Correctional Centre ("MNCCC"), and the Cooma Correctional Centre ("CCC"). The applicant is currently detained in the John Morony Correctional Centre ("JMCC"). On the material filed by the Crown, it can be deduced that the applicant has been detained in some form of isolation (solitary confinement, lockdown or protective non-association ("PRNA") classification) for at least approximately 1 year 11 months and 27 days (or 103 weeks and 6 days).
On 12 October 2024, upon receipt of intelligence information from the JMCC, it was determined that the applicant was at risk of harm from other inmates within the prison. As a result, the applicant was separated from other inmates pursuant to s 78A of the Crimes (Administration of Sentences) Act 1999 (NSW). This was a short-term management arrangement while other suitable location options were considered. He was placed in an isolation unit. Mr Mirza Mohtaj, the Senior Assistant Superintendent of Security at the JMCC, emphasises that the applicant's previous placement in an isolation unit was not "segregation" or a "PRNA" placement. The difference is that the applicant's placement is not by way of punishment nor by reason of his own request to be placed in an isolation unit. The applicant is currently separated on a "PRNA" placement. It should be also said that the accuracy of the applicant's classification at any particular time, is relevant to the conditions of his custody that are said to be significant to the preparation of his appeal.
Relevantly, Mr Mohtaj states that the applicant has "had, and continues to have, computer access." The separation unit where the applicant is currently detained, allows him better access to the facilities because there are less inmates managed in that area. The facilities to which the applicant has access include computer, legal resources, phone access, printing facilities and "Wi-Fi accessibility to his inmate computer tablet" while in his cell. The applicant continues to have access to the assistance of "Education Officers" while he is detained in the separation unit.
In his affidavits dated 31 October 2024 and 3 November 2024, the applicant disputes some of the assertions made by Mr Mohtaj. The areas of dispute include the following: 1. The applicant asserts that the only period he was not housed in "PRNA" placement was at the CCC for fifteen and a half months, and up to 12 October 2024 at the JMCC, for ten and a half months. He deposes that he has spent "33 months or 990 days" in "PRNA". 2. Although the applicant accepts that from time to time he is given computer access, that access is "inconsistent, unpredictable and restricted." 3. The applicant disputes that he has had a misconduct charge upheld. 4. Although the applicant accepts that he is not in "segregation", being housed in an isolation unit has severely restricted his movements. He is confined to a small cell and locked up "23 hours a day". 5. The applicant states that while he has access to a "tablet device", it is restricted to making telephone calls, watching television, movies and playing games. There is "absolutely no ability to conduct legal research" and no capacity for notetaking. In addition, the battery life of the device is said to be approximately four and a half hours only. 6. The applicant disagrees that he has better access to facilities in the separation unit due to the lower number of inmates. 7. The applicant maintains that while he has access to some facilities in custody, the "facilities have limitations which make it very difficult to prepare a complex appeal adequately."
In light of the disputes that have arisen, the Crown was given a further brief period in which to file any further evidence in respect to the applicant's conditions in custody.
The affidavit of Adam Wilczek sworn 20 November 2024 (together with Annexures "A" and "B" to that affidavit) provides the following further evidence: 1. The applicant was afforded access to a private computer room on six days in October 2024, and he has also been advised to apply for a "JUSTConnect" laptop to complement his private computer room access. 2. It is possible for the applicant to have access to an in-cell "JUSTConnect" laptop and the applicant has been afforded access to a computer room with a computer with note-taking capabilities. 3. All inmates at the JMCC (including "PRNA" inmates) are permitted access to the computer room during "purposeful day hours", being seven and a half hours during the day, although this is impacted "given the community they reside within" and the "needs of others". 4. When the applicant was in the mainstream area, he was afforded access to a computer room on request and was also afforded time away from employment to attend and utilise the computer facilities. 5. From 31 October 2024, to date, the applicant is separated on "PRNA" placement in the JMCC.
While the conditions might not be ideal, I am satisfied that the applicant has access to sufficient resources and facilities to prepare for his appeal. A telling indication of the applicant's capacity to prepare his legal proceedings is demonstrated in the current application. The applicant filed comprehensive written submissions which were supplemented by oral submissions during the hearing.
He has also complied with orders made at the conclusion of the hearing by serving and filing additional material and supplementary submissions. Those orders were made on 23 October 2024. The applicant filed the additional submissions on 4 November 2024, 12 days after the conclusion of the hearing. The additional material was compiled expeditiously and sets out a comprehensive response to the Crown's oral submissions and the additional material filed by the Crown.
The applicant's submissions reflect that research has been conducted in support of the application and although not typed, are clearly set out.

[14]

Merits of the proposed appeal

The Court has limited material upon which to determine the prospects of success of the applicant's appeal. We do not have before us the evidence which was adduced at the trials, the respective addresses by Counsel, or the summing up. Any assessment as to the prospects of the proposed grounds can only be addressed broadly: Obeid v R (No 2) [2016] NSWCCA 321 at [17] per the Court, comprising Bathurst CJ, Hoeben CJ at CL and R A Hulme J; Mehajer (CCA, 2024) at [56] per the Court, comprising Fagan, N Adams and Faulkner JJ; WR v Director of Public Prosecutions (NSW) [2023] NSWCCA 38 at [9] per Beech-Jones CJ at CL, as his Honour then was (Davies and McNaughton JJ agreeing); Fantakis v Director of Public Prosecutions [2021] NSWCCA 271 ("Fantakis") at [15] per Beech-Jones CJ at CL, as his Honour then was (R A Hulme and Campbell JJ agreeing).
The applicant bears the onus of satisfying the Court that the appeal is of sufficient prospects so that, whether alone or in combination with other matters, special or exceptional circumstances are established: Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102 at [16], [20] and [23] per the Court, comprising Harrison J, as his Honour then was, R A Hulme and Wright JJ.
The test relevant to the merits of the appeal, in the context of establishing special or exceptional circumstances, was considered in El Khouli v R [2019] NSWCCA 146 ("El Khouli") where the Court, comprising Hoeben CJ at CL, Walton and Wilson JJ, made the following observations at [28]: "In El-Hilli, Hamill J stated that the applicable question, where the merits of the appeal are raised in combination with other factors to demonstrate special or exceptional circumstances, was 'whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success' (at [26]) (both descriptors are used intermittently in the consideration of the merits of the appeal of the applicant in that case (see at [45])). Reference was made in support of that approach in Peters v The Queen (1996) 71 ALJR 309 ("Peters") (at 310-311); Marotta v The Queen (1999) 73 ALJR 265; [1999] HCA 4 ("Marotta") (at 266) and R v Velevski (2000) 117 A Crim R 30; [2000] NSWCCA 445 ("Velevski") (at [24]-[25])."
In El-Hilli, Hamill J had also considered the test for granting bail in the context of s 22 of the Bail Act. In that regard, his Honour considered that in a case where an applicant relies exclusively on the strength of the appeal, it may be necessary to establish that the appeal is "most likely" to succeed, but where the merit of the appeal is relevant as part of a combination of factors, the test will be satisfied where the grounds of appeal are "arguable or enjoy reasonable prospects of success": El-Hilli at [26] per Hamill J (Simpson and Davies JJ agreeing).
In Trevascus Johnson J relied on the Court's remarks in El Khouli and Hamill J's observations in El-Hilli, in stating the following at [15]: "Where the strength or merit of an appeal is relied upon in isolation, the Applicant must show more than that the grounds seem arguable and it may be necessary to establish that the appeal is most likely to succeed: Petroulias v R [2010] NSWCCA 95 at [34]; El Khouli v R [2019] NSWCCA 146 at [23]. However, where the merit of the appeal is put forward as part of a combination of factors, the question is whether the proposed grounds of appeal are arguable or enjoy reasonable prospects of success: El-Hilli and Melville v R at [29]; El Khouli v R at [27]."
It can be concluded therefore that where, as in the present case, an applicant relies on the strength or merit of an appeal in combination with other factors the applicant need only show that the grounds are arguable in the sense that they enjoy reasonable prospects of success. That threshold is lower and less onerous than the "more than arguable" or "most likely to succeed" test.

[15]

The domestic violence offences

Ground 1 of the proposed conviction appeal, as set out at [20], is a complaint that the "appellant's trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for Counsel to appear at trial with the consequences that, in all the circumstances of the case the appellant was deprived of his right to a fair trial and real chance of acquittal."
On 5 April 2023 Bennett SC DCJ dismissed the application for the stay because the applicant did not prove that he was indigent. On 17 April 2023, the applicant applied to the Court of Criminal Appeal for leave to appeal under s 5F of the Criminal Appeal Act. The proposed grounds of that appeal are set out at [9] of the judgment in Mehajer v R [2023] NSWCCA 101 ("Mehajer (CCA, 2023)") by the Court, comprising Davies, Ierace and Cavanagh JJ. The Court of Criminal Appeal held that, on the evidence, it was open to the trial judge to find the applicant was not indigent. The s 5F appeal was dismissed.
On this application, the applicant submitted that there was an error of fact relating to his financial circumstances at the relevant time. The applicant contends that the error has "then carried on by the CCA." The error of which the applicant complains is an error of fact rather than an error of law. In dismissing the appeal, the Court of Criminal Appeal found that the applicant had not shown that the trial judge applied wrong principles or failed to consider relevant evidence or misinterpreted the facts: Mehajer (CCA, 2023) at [113] per the Court, comprising Davies, Ierace and Cavanagh JJ.
Given that this issue has already been considered by the Court of Criminal Appeal, it is difficult to see how Ground 1 has reasonable prospects of success.
Grounds 2 and 3 can be dealt with together. The applicant asserts that the trial miscarried by virtue of the "trial judge's failure to adjourn the trial until the appellant's mobile phones were forensically downloaded." Ground 3 raises a related issue asserting that the applicant has available to him "fresh" or "new" evidence relevant to the complainant's credit.
The applicant's affidavit, dated 14 October 2024, sets out the attempts he has made to access his mobile phone devices and Apple iCloud account. The applicant deposes that upon his arrest he immediately contacted the "arresting office[r]" and informed him that his mobile phone was in the possession of the complainant and that it contained "exculpatory evidence, namely text messages between the complainant and I, emails, images etc."
Having advised the Officer in Charge of the significance of the phones, police made enquiries which resulted in the police obtaining at least one of the applicant's phones. The phone was disabled and therefore not eligible for extraction through Cellebrite software. The applicant has provided a report prepared by Navid Sobbi, digital forensic examiner of phones, which states that he was unable to access the contents of the phone.
It may be accepted that access was impossible leading up to and at the time of trial. However, other than an assertion that the phone(s) contain exculpatory material, the applicant has not identified that material. The applicant has not specified the nature of the exculpatory evidence, its probative value or how it could be said to undermine the credibility of the complaint.
Similarly, Ground 3 asserts that the applicant has available to him fresh and new evidence. With respect to this ground, the applicant again relies upon the difficulties in accessing his mobile device and iCloud account. There is ample evidence to establish that the applicant has been unable to obtain a SIM-card because he is in custody. That much can be accepted, however, the applicant has not demonstrated how the proposed evidence is fresh or new evidence.
In the additional material filed by the applicant, he provides further details about his unsuccessful attempts to obtain access to his iCloud account. In expanding upon the "new evidence ground" with respect to the domestic violence offences, the applicant submits that if he had access to his data, namely text messages, emails and photographs, such material "would support [his] defence on the domestic violence charges." The only attempt to specify the nature of the "new evidence" is the following assertion by the applicant: "I have photographs and/or records showing my frequent movements. My movements would almost definitely enable me to prove that at least two of the counts should never have stood."
The principles relating to a miscarriage of justice resulting from the absence of fresh and new evidence at trial, in the context of an appeal against conviction were set out in R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 by Kirby J (Mason P and Levine J agreeing) at [63]: "The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows: · First, a distinction is made between "new evidence" and "fresh 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. · Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). · Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). · Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. · Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399). · Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: · Is the evidence fresh? · If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)? · If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. · Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)." The principes were also considered in Xie v R [2021] NSWCCA 1 ("Xie") at [433]-[434] by the Court, comprising Bathurst CJ, R A Hulme and Beech-Jones JJ. See also Mehajer (CCA, 2024) at [73] per the Court, comprising Fagan, N Adams and Faulkner JJ; Adanguidi v R [2024] NSWCCA 82 at [11] the Court, comprising Garling, Fagan and McNaughton JJ; Luo v R [2024] NSWCCA 58 at [26] per Wilson J (Adamson JA and Basten AJA agreeing); Tiriaki v R [2023] NSWCCA 73 per Price J (Ierace and McNaughton JJ agreeing); SC v R [2023] NSWCCA 60 at [199] per Yehia J; Miller v R [2022] NSWCCA 255 at [94] per Meagher JA (Mitchelmore JA and Bellew J agreeing).
The question raised by a "new" evidence ground of appeal is whether there has been a miscarriage of justice by reason of the jury not having received the evidence in question: Ramsey v R [2022] NSWCCA 197 at [32] per Beech-Jones CJ at CL, as his Honour then was (Wilson and Fagan JJ agreeing).
There will be a miscarriage of justice in a trial where the new evidence (absent on trial), establishes the accused's innocence or gives rise to such a doubt about guilt that the verdicts cannot be allowed to stand: Xie at [191] per N Adams J (Garling and Hamill JJ agreeing).
The onus is on the applicant to show that the absence of the new evidence at the trial resulted in a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [63] per McHugh J. That does not mean it is for an accused person to show that, in certain respects, the trial might have been conducted differently: Ali v The Queen [2005] HCA 8 at [12] per Gleeson CJ.
The applicant appears to be asserting that if he had access to phone data and emails, he would "almost definitely establish" some form of alibi in respect of at least two of the allegations. However, a mere assertion to that effect, without specifying the nature of the evidence, is highly speculative.
The applicant has not demonstrated that Ground 2 and Ground 3 have reasonable prospects of success.
The fourth and final ground relied upon, in relation to the domestic violence offences, is that the verdicts were unreasonable and incapable of being supported by the evidence.
The jury had the advantage of observing the complainant give evidence and, considering the verdicts, the jury must have accepted the complainant as a witness of truth. The applicant has not prepared any draft submissions for this ground other than a mere assertion that the verdicts were unreasonable. The applicant has not demonstrated that this ground is reasonably arguable. In any case it is impossible to assess the merits of this ground of appeal without the record of the trial and exhibits.

[16]

The false documents offences

The proposed grounds in the intended appeal against conviction on the false document offences are set out at [22]. The applicant's submissions in support of Ground 1 are limited to an assertion that the trial judge's response to the third jury note was inconsistent and apt to confuse, thereby causing a miscarriage of justice. No further analysis is provided by the applicant.
The terms of the "third jury note" and the directions in response to it are not known. The applicant has not demonstrated that this ground is reasonably arguable.
The applicant was convicted of four offences in the false documents trial. Two of the offences, Counts 2 and 4, relate to "using" two false documents, namely an affidavit and a statutory declaration, to obtain financial advantage.
Ground 2 asserts that the convictions on Counts 2 and 4 were unreasonable and unable to be supported by the evidence. Other than a mere assertion to that effect, the applicant does not demonstrate how it may be argued that the jury's findings were unreasonable or unable to be supported by the evidence.
Ground 3 asserts that the applicant has available fresh and new evidence relevant to Counts 1 to 4. The applicant's written submissions dated 3 September 2024 state at [9.12], that the fresh or new evidence is attached to his "draft submissions on conviction", footnoted as a document attached to the applicant's affidavit dated 3 September 2024. It is entirely unclear from the footnote as to what the document is, let alone the nature of the new evidence.
In the supplementary material filed by the applicant, he expands upon the nature of the "new evidence". With respect to the appeal against the conviction for the false documents offences, the applicant states that he now has available to him two affidavits that were not available a trial.
The first, is his affidavit dated 13 March 2020, described as a "near carbon copy document to the 13 March 2020 Count 1 affidavit." This document is referred to by the applicant as the "new evidence document (No 1)" and is relevant to the appeal with respect to Counts 1 and 3. The applicant states that he "recently noticed" that the 13 March 2020 affidavit was filed with the Federal Court on 16 March 2020. It was withdrawn three days later. One of the arguments the applicant will advance on his appeal is that, because the affidavit was withdrawn, he cannot be found guilty of "using" that document.
The applicant further contends that he has located another document, namely an affidavit dated 8 May 2020, which was filed with the Federal Court. That document is Annexure "G" to his affidavit dated 31 October 2024. The applicant refers to this document as the "new evidence document (No 2)". The applicant submits that had the "new evidence material" been before the jury he would have been acquitted of (at least) Counts 1 and 3. The applicant does not explain how he located the affidavits asserted to constitute "new" evidence.
Bearing in mind the principles set out above at [81]-[84], and on the limited material available to this Court, it is unlikely that this material constitutes "new" evidence. The applicant has failed to demonstrate that this ground has reasonable prospects of success.
The final proposed ground in relation to the false documents appeal, is a ground contending that there was a miscarriage of justice occasioned by the acts of the "appellant's legal representatives in not securing the appellant's laptop which was lost in the courtroom during the trial." It is accepted that the applicant's sister took a laptop to court where it was taken by an officer of the Court and given to the sheriff. It is also accepted that the laptop could not be retrieved by the applicant's solicitor.
However, once again, the applicant has failed to demonstrate how the loss of the laptop occasioned a miscarriage of justice.

[17]

Proposed grounds of appeal in relation to sentence

The grounds of appeal in relation to sentence are, in the main, a complaint that the sentencing judge "failed to give adequate weight" to several factors including onerous bail conditions, onerous custodial conditions and extra curial punishment. These grounds do not assert an error of principle but rather a failure by the sentencing judge to give sufficient weight to mitigating factors.
In addition, the proposed grounds include a complaint that the sentencing judge erred in determining the appropriate aggregate sentence and failed to give a sufficient backdate. In relation to both intended sentence appeals, the applicant asserts that the sentences are manifestly excessive.
As indicated above, the applicant was sentenced by Bennett SC DCJ on 9 May 2024. The Remarks on Sentence were provided to this Court during the hearing. We have not been provided with the evidence or submissions relied upon in the sentence proceedings. Any assessment, at this stage, of whether the sentence appeal has reasonable prospects of success is necessarily based on the limited material before this Court.
However, a fair reading of the Remarks on Sentence reveals that the sentencing judge specifically referred to the commencement date of the sentence by reference to another sentence imposed upon the applicant by Zahra SC DCJ, to ensure that the offender "[was] not punished beyond what [was] appropriate for the array of misbehaviour" and that "the appropriate non-parole period [gave] effect to special circumstances": R v Mehajer [2024] NSWDC 240 ("Mehajer (DC)") at [28], [246] and [247] per Bennett SC DCJ. The sentencing judge did consider the principle of totality.
The sentencing judge did not accept the applicant's account of the total period he had spent in solitary confinement. However, the sentencing judge accepted that it was apparent that the applicant had spent a significant period of time in custody, the precise extent of which was not ascertainable, where his movements were limited, and which occasioned him hardship. The sentencing judge took those matters into account in assessing the proportionate sentence: Mehajer (DC) at [222] per Bennett SC DCJ.
Similarly, the sentencing judge specifically referred to, and took into account, the strict bail conditions to which the applicant was subject when he was in the community: Mehajer (DC) at [232] per Bennett SC DCJ.
On the limited material before this Court, the applicant has not demonstrated that his appeal against sentence enjoys reasonable prospects of success.

[18]

Further Grounds

I have already dealt at some length with the reasons why the applicant has not demonstrated that his appeal is arguable or enjoys a reasonable prospect of success. Having made that finding, the fact that it is likely the applicant will serve a significant portion of the non-parole period which is the subject of appeal before the appeal is determined, does not, by itself constitute special or exceptional circumstances: Robinson v R (1991) 65 ALJR 519 per Gaudron J; El-Hilli at [19] per Hamill J (Simpson and Davies JJ agreeing).
Furthermore, in addressing the merits of the proposed grounds of appeal, I have already dealt with the applicant's complaint that he is unable to access critical evidence unless he is at liberty. The asserted "critical evidence" has simply not been sufficiently identified nor has the applicant addressed the probative value of any such material.
The applicant relies upon the need to be at liberty "in order to prevent his family home from being sold by a mortgagee in possession". In the applicant's affidavit, dated 14 October 2024, he deposes that if he is released to the community he is "confident" that he could obtain financial assistance to avoid the family home being sold. However, there is a glaring absence of evidence about this issue. The applicant has not provided any documents in support of the contention that the family home may be lost or any evidence in support of the contention that his release to the community will facilitate financial aid.
As to the reliance on the delay in the sentencing proceedings, it must be noted that the sentencing of the applicant was delayed, in part, owing to an application made by the applicant's legal representatives at the sentence to obtain further psychological material. The other reasons for delay include the applicant's legal representatives formally withdrawing (and the applicant subsequently obtaining new representation) and delays in the production of a Justice Health Report.
Having considered the evidence and the respective submissions, I am not persuaded that the circumstances relied upon by the applicant, either singularly or in combination, establish special or exceptional circumstances. By virtue of s 22 of the Bail Act, bail must be refused.

Mehajer v R

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (3)

Cases Cited (48)

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