[1993] HCA 6
Barel v Barel [2024] NSWCA 257
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 6
Barel v Barel [2024] NSWCA 257
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Judgment (2 paragraphs)
[1]
The application to reopen the proceedings
The grounds upon which the applicant relies are set out in his written submissions dated 13 December 2024. The applicant's complaint that he was denied a real chance of being granted bail because the Court solely considered the applicant's draft grounds of appeal in the previous release application is inaccurate. The grounds of appeal (relied upon in the present release application) and the material and written submissions in support of each ground are identified above at [5] and [7]. The applicant also made oral submissions on 23 October 2024.
The applicant now states that the document identified as "revised submissions document" dated 3 September 2024 should not have been put before the Court on the application. The applicant concedes that he wrongly relied on this document, saying that this occurred because of his "emotional/mental breakdown during oral submissions". The document was however filed in support of the application and there was no indication before 6 December 2024 that the document was wrongly filed.
The applicant's "settled" grounds of appeal are set out at 5.2 of the applicant's "Draft Merit Advice/submissions on appeal" document dated 16 October 2024, which was filed with the Court on 23 October 2024 and considered in the primary judgment. There are three settled grounds of appeal:
"CONVICTION (DV MATTER)
(1) GROUND No.1: There was a miscarriage of justice in the Appellant's trial by virtue of the learned trial judge's failure to stay or adjourn the trial until arrangement 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;
(2) GROUND No.2: There was a miscarriage of justice in the Appellant's trial by virtue of the learned trial judge's conduct during the proceedings.
SENTENCE (DV & FRAUD MATTER)
(1) GROUND No.1: The learned sentencing judge failed to give adequate weight to the onerous conditions (solitary confinement) to which the applicant had been subjected to."
There is a significant degree of overlap between the draft grounds of appeal set out in the applicant's written submissions dated 3 September 2024 and the settled grounds of appeal. Settled Ground 1 in respect of conviction is addressed at [71]-[74] of the primary judgment. Settled Ground 2 in respect of conviction encapsulates Grounds 2, 3, and 4 of the draft grounds of appeal. Grounds 2 and 3 are addressed at [75]-[86] of the primary judgment. Ground 4 is addressed at [87]-[88] of the primary judgment. Settled Ground 1 in respect of sentence is addressed at [100]-[106] of the primary judgment. The applicant's complaint in Settled Ground 1 as to solitary confinement is specifically addressed at [104] of the primary judgment.
The primary judgment comprehensively addressed each ground and the submissions made in support. It is not accurate to state that the Court, in dismissing the application, solely considered the applicant's grounds of appeal filed in the previous release application.
The applicant, in his submissions dated 13 December 2024, refers to the "more settled grounds of appeal and submissions", which he lists at 6.0(i), (ii) and (iii) of that document. The contents of these documents were comprehensively addressed and taken into account in the primary judgment.
In his submissions filed in support of the application to reopen the proceedings, the applicant also makes a complaint that at the commencement of the bail hearing the Crown prosecutor "recklessly" filed with the Court submissions he had filed in the previous application, causing the Court to refer to outdated material.
Firstly, this Court was not distracted by irrelevant or outdated material in its decision to dismiss the applicant's release application. Secondly, while it is accurate that the Crown relied upon written submissions that had been filed in the previous release application, many of the issues raised by the applicant were similar in nature. In addition, the Crown on the present release application supplemented the written submissions by oral submissions.
Lastly, the applicant's asserted inability to prepare for his appeal in custody, was comprehensively dealt with in the primary judgment at [54]-[64]. An application to reopen the proceedings is not an opportunity for the applicant to revisit this issue and reagitate matters that were resolved against him in the primary judgment. Furthermore, because this Court was not satisfied that the applicant had established special or exceptional circumstances, it did not consider the unacceptable risk test.
The applicant has not established a basis for leave to be granted to reopen the proceedings or (in so far as he seeks such orders) to set aside the Court's order dismissing the application for bail.
[2]
Orders
The order of the Court will be that leave to reopen the bail proceedings is refused.
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: 20 December 2024
THE COURT: On 6 December 2024 this Court dismissed Mr Mehajer's ("the applicant") application for bail pending appeal: Mehajer v R [2024] NSWCCA 226 ("the primary judgment"). By email correspondence to the Court dated 13 December 2024 the applicant seeks leave to "reopen the proceedings and submissions on the merits of the grounds of appeal."
The applicant asserts that the Court ought to exercise its discretion to reopen the proceedings for two reasons:
"(i) The applicant was denied a real chance of being granted bail as the Court had solely considered the applicant's grounds of appeal filed in the previous release application (i.e. 28 August 2024);
(ii) At the commencement of the bail hearing [present proceedings], the Crown Prosecutor recklessly files with the Court submissions he had filed in the previous application, causing the Court to be alluded to outdated material."
Although the application is framed in terms of "reopening of the proceedings" only, by inference, the applicant is also seeking leave to apply to set aside the Court's order dismissing the application for bail.
Procedural History
The applicant is serving a term of imprisonment imposed upon him after findings of guilt in respect of two sets of trial proceedings: see the primary judgment at [3], [13]-[18] per Yehia J (Kirk JA and Rothman J agreeing). He has filed a Notice of Intention to Appeal against conviction and sentence with respect to both sets of matters. The applicant applied for bail pending appeal, to this Court, differently constituted, on 28 August 2024. The application was dismissed: Mehajer v Director of Public Prosecutions [2024] NSWCCA 172 at [108] per the Court, comprising Fagan, N Adams and Faulkner JJ.
On 9 September 2024, the applicant filed a fresh application for bail which was heard before this Court constituted by Kirk JA, Rothman and Yehia JJ on 23 October 2024. In support of the application, the applicant filed the following material:
1. Bail application dated 3 September 2024 (filed 9 September 2024);
2. Written submissions dated 3 September 2024;
3. Affidavit of Fawzi Faytrouni sworn 22 October 2024;
4. Bundle entitled "Applicant's Addendum Document" including:
1. Affidavit of the applicant sworn on 14 October 2024;
2. Draft Merit Advice/submissions on appeal dated 16 October 2024; and
1. Affidavit of Zawat Zreika sworn 22 October 2024.
At the conclusion of the hearing, orders were made for the filing of evidence and supplementary submissions in respect of two discrete topics, namely whether the Court had jurisdiction to hear the bail application and what, if anything, could be done to address the practical issues raised by the applicant as to his difficulty in preparing his proposed appeal.
On 30 October 2024, the Crown filed an affidavit of Adam Wilczek, sworn on 30 October 2024 together with supplementary submissions dated 30 October 2024. On 7 November 2024, the applicant filed an affidavit of Zenah Osman sworn on 6 November 2024. On 7 November 2024, further material was received by the Registry from the applicant, namely two affidavits of the applicant, sworn on 31 October 2024 and 3 November 2024, together with the applicant's supplementary written submissions dated 30 October 2024. Lastly, on 20 November 2024, the Crown filed a further affidavit of Adam Wilczek sworn on 20 November 2024.
It was only after the receipt of all the supplementary material and submissions that the Court considered the application, determining that it should be dismissed. It is important to note that all correspondence sent by the Registry conveying the orders made for the filing of supplementary material, was sent to the applicant in the way in which all communications have been sent to him, by copying in the Correctional Centre in which he is detained.
Reopening the proceedings
Rule 5.4(1) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) enables this Court to set aside or vary an order if an application for the setting aside and variation is made before the entry of the order. Rule 5.4(4) provides that if the application to set aside or vary the order is made within 14 days after the order is entered, the Court may determine the matter and, if appropriate, set aside or vary the order as if the order had not been entered.
Rule 5.4 is contained within Division 5.2 which is entitled "Determining Appeals". However, these rules only apply to an appeal or application for leave to appeal. Here, the application is to reopen bail proceedings relating to a bail application made under the Bail Act 2013 (NSW).
In Fantakis v Director of Public Prosecutions (No 2) [2021] NSWCCA 317 ("Fantakis (No 2)") an application to reopen a bail proceeding was heard by this Court, comprising Beech-Jones CJ at CL (as his Honour then was), R A Hulme and Campbell JJ. The applicant sought a "review" of a bail judgment of the Court of Criminal Appeal. The Court discussed the applicability of rr 5.4(1) and (4) of the Supreme Court (Criminal Appeal) Rules and held that by virtue of r 5.2, r 5.4 "only applies to appeals or applications for leave to appeal (Rule 5.2) and Mr Fantakis' application was neither" because he had made a "release application" under the Bail Act.
In so far as the respondent refers to and relies upon r 5.4, the submissions are misconceived because the proceedings relate to a release application under the Bail Act and not an appeal or an application for leave to appeal.
In the absence of an express power to reopen proceedings, the limited circumstances in which this Court can reopen the proceedings and revisit its decision were identified by Mason CJ in Autodesk Inc v Dyason (No 2) 176 CLR 300 at 303; [1993] HCA 6 ("Autodesk") as being when the Court has "apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing." His Honour continued that the "purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases": Autodesk at 303. See also R v Jones; Hili (No 2) [2010] NSWCCA 195 at [33] per Rothman J (McClellan CJ at CL agreeing); R v AB (No. 2) [2018] NSWCCA 148 at [8] per the Court, comprising Meagher JA, Rothman and Garling JJ; Proietti v Proietti [2023] NSWCA 132 at [26] per the Court, comprising Ward P and Adamson JA.
The Court may reopen a judgment if it has proceeded on a misapprehension as to the facts or the law, where there is some matter calling for review, or where the interests of justice so require: De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215; [1997] HCA 14 per Toohey, Gaudron, McHugh, Gummow and Kirby JJ; Barel v Barel [2024] NSWCA 257 at [46] per Gleeson JA (McHugh JA and Basten AJA agreeing). There is a heavy onus that rests upon the party seeking to reopen a judgment or order: Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 at [3] per the Court, comprising Barrett, Ward, Emmett JJA; New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17]-[22] per the Court, comprising Mitchelmore, Stern JJA and Basten AJA.