R v Mehajer

The applicant's appeal

1. Section 63 of the Crimes (Appeal and Review) Act 2001 (NSW) relevantly provides: Stay of execution of sentence pending determination of appeal (1) This section applies to: (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed: (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or (b) in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or (c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act.
2. The effect of paragraph (2)(c) of s 63 is that a custodial sentence is not automatically stayed unless bail is granted: Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [20]. There is no specific provision of the Bail Act dealing with a release application pending an appeal from the Local Court to the District Court (Cf. s 22 in respect of an appeal to the Court of Criminal Appeal), but one of the considerations for the grant of bail generally is paragraph (j) of s 18(1): (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
3. Where the principal reason for an applicant seeking bail after conviction and sentence is a challenge by appeal to the conviction, as a matter of common sense the consideration in paragraph (j) must assume considerable significance on a release application. Ordinarily, a person sentenced to custody following a conviction would not be entitled to bail absent an appeal, although there might be exceptions for serious illness or something similar. Accordingly, close attention must be given to the prospects of success. If it was determined that an appeal had few prospects of success, it is difficult to see why bail would be granted.
4. Section 18 of the Crimes (Appeal and Review) Act 2001 (NSW) relevantly provides Appeals against conviction to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. …
5. It is clear that the applicant's appeal is not intended to be run as a rehearing on the basis of the evidence given in the Local Court. Rather, the applicant intends to lead fresh evidence.
6. The words "fresh evidence" are defined in s 3 of the Act as meaning: … evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen. It is clear from that definition that the words "fresh evidence" do not have the technical meaning attached to them in relation to appeals to the Court of Appeal and the Court of Criminal Appeal.
7. The phrase "interests of justice" was discussed in Landsman v R [2014] NSWCCA 328 by Beazley P (Hidden and Fullerton JJ agreeing). Her Honour said at [69]-[70]: [69] It is apparent from the various contexts in which the phrase "interests of justice" is found that it will involve the balancing of various interests that are in play in the particular context in which the phrase is used. Although the "interests of justice" will include the interests of the parties, the concept will invariably be wider than that and include larger questions of legal principle, the public interest and policy considerations: see BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400. [70] In some cases, "the interests of justice" will override other recognised legal principles or matters of public policy. Thus, in Mickelberg v R [1989] HCA 35; 167 CLR 259 at [35], Deane J observed that there were circumstances in which "the interests of justice may override the public policy that there should be an end to litigation". That statement was made in the context where the applicant had been convicted on false evidence. The present case does not involve the same circumstances with which the Court was concerned in Mickelberg. However, his Honour's remarks demonstrate that there are occasions when the interests of justice may predominate over other competing legal principles such as the finality of litigation, which is now recognised as a fundamental tenet of our legal system: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1.
8. I do not, of course, have to determine on the present application whether the applicant will demonstrate that the interests of justice enable his new evidence to be given. It is sufficient to note that there will be a reasonably heavy onus upon him in circumstances where he was represented throughout the proceedings before the Magistrate by senior and junior counsel. I note in that regard that McHugh JA (as his Honour then was) said in Holcombe v Coulton (1988) 17 NSWLR 71 at 77 that he thought that the interests of justice were best served by keeping parties to the cases which they ran at first instance, and that he could not accept the notion that the interests of justice required that cases should be heard and re-heard until every conceivable factual pattern or every conceivable legal principle of relevance that finally occurs to the parties have been litigated.
9. Justice Hulme said that he could summarise his view about whether the applicant had a reasonably arguable prospect of success within the meaning of s 18(1)(j) of the Bail Act at [7] as follows: In relation to the appeal against conviction it seems on the limited materials before me, but essentially for the reasons provided in the submissions of Ms Single of counsel, the prospect of success is meagre and perhaps non-existent.
10. When the applicant appeared before R A Hulme J he said this: And if you want to know, your Honour, the fresh evidence I'll be presenting I'm happy to explain that. Now, the fresh evidence is where all these addresses came from, who did it come from. I need access to my computers, I need access to CCTV footage and the video footage that was hired by professional videographers and so on, to get all access to what time and what happened, what I said on the day of the meet and greet, and access to a number of portable devices.
11. His Honour asked why the applicant was only thinking about access to all of that material in 2018 and the applicant answered: Valid question, your Honour. Now, the reason for that is at the very start I was running the application more on a technical basis, and it's time I said to myself, look, I know where - I didn't speak at the time, and I said, look, I have to speak and it's time to speak and explain where this information came from. And I remained silent. I didn't give evidence in court. I didn't - the cross examination of the witnesses was very limited. We didn't call any witnesses. And that was my decision because I didn't want to get other people involved. But now because of what's happened, I mean, it's time to - to accept and get all this additional information. I understand it's been since 2015 I haven't presented this to the courts, but I just remained silent, and I just wanted to tackle this matter more on a technical basis rather than what I'm expected to do on the basis on the appeal.
12. The significance of mentioning those exchanges is that no further material was put forward on the present application about the nature of the challenge to the evidence led at the trial, nor was there identification of the fresh evidence which will be put forward, nor of the particular convictions to which that evidence will go. Nor, on the present application has any attempt been made to explain why it is that the evidence the applicant wishes to adduce was not adduced at the trial, nor to explain any reason for the change in approach that will be sought to be made at the hearing of the appeal. Indeed, the applicant's senior counsel said that he has not examined the merits of the entire case.
13. There is the further difficulty for the applicant of evidence he gave at the sentence proceedings, where he accepted responsibility for the offending. Whilst I accept that he waxed and waned a little in that evidence he said this: Q. By that answer do you intend to convey to her Honour that you accept and now acknowledge your role in this fraudulent activity? A. I'm happy to accept, yes. Q. Is that right? A. Yes. … Q. Were you, at the time that you provided that information to the psychiatrist, still accepting your responsibility for what you'd done? A. I would have - see, what it is because there's a number of charges there's, there's some without doubt I would accept - at the time accept some responsibility, and there's some that I say should have been dropped or according to my belief or whatnot, but now I'm saying I accept it. I accept it in full.
14. There was evidence before me of attempts to obtain Legal Aid that have been unsuccessful. The refusal was contained in a letter of 30 October 2018 providing two reasons for the application being rejected. The first concerned the applicant's assets and the second concerned the applicant's failure to satisfy the merit test. An appeal has been lodged with the Legal Aid Review Committee but that appeal has not yet been determined.
15. The appeal has been adjourned to 9 January 2019 for mention only. The evidence, such as it is, demonstrates that despite filing the amended notice of appeal on 20 July 2018, the appeal has not been advanced at all.
16. It was suggested that Legal Aid may not have had the full picture in relation to the applicant's assets because the sequestration order made against him would have resulted in property that was not secured to a creditor becoming vested in the trustee in bankruptcy. However, even if the applicant satisfied the assets test it seems clear that it will be necessary to get a merits advice in relation to the conviction appeal. The prospects of such advice being available by the next mention date in January seem remote.
17. All of this means that the only basis on which to make any assessment of the likely success of the appeal is that the Crown case made against the applicant at trial was a strong one, as the applicant's senior counsel accepted, and nothing has been indicated of any substance to cast doubt on the correctness of the verdict.
18. The applicant makes the further point that if he is not released to bail the likelihood is that his period in custody before he is released on the recognizance order will have expired before the appeal comes on for hearing. However, the evidence at the present time indicates that the only reason that is so is that the applicant has not advanced his appeal at all since filing the amended notice of appeal. Further, this point cannot be assessed separately from the issue of the likely success of the appeal. If the prospects were good, this would be a very valid point. Since there is no material suggesting the prospects are good, this matter has no weight.

Bankruptcy

1. The second basis the applicant puts forward for needing bail is to deal with his financial affairs in relation to his bankruptcy.
2. It should first be noted that since his estate was sequestrated the applicant was free on bail between 4 April and 11 May 2018. Bail was revoked on 11 May 2018 because the applicant breached a condition of his bail, that he only have one mobile phone. He was again released to bail by the Local Court on 9 June 2018 and remained in the community until he was sentenced on 22 June 2018. There is no evidence before me of what the applicant did during those periods in relation to dealing with his financial affairs resulting from his bankruptcy. Nor was there any evidence of how he is prevented from dealing with those matters from custody except for the punishments that he has received in custody that restrict his movements, telephone calls and contact visits, a matter to which I will return later.
3. Submissions made on behalf of the applicant were to the effect that he wishes to make an application to annul his bankruptcy. Justice Hulme found that there was a judgment debt against the applicant from a District Court matter in the sum of $600,000 plus indemnity costs. His Honour also found his total tax debt exceeded $8.6 million. The tax records in evidence before me bear out that figure. No evidence has been presented on the present application to give any indication how, in those circumstances, the applicant would be able to annul his bankruptcy. The lack of evidence generally about this matter means that the applicant fails to demonstrate that it is a serious reason why he needs to be released to bail.
4. Unless the applicant had the benefit of a lodged appeal, there would be almost no prospect that he, or anyone else, would be released from custody on bail to attend to his business and financial affairs.

Mental health issues

1. The third reason put forward concerns the applicant's mental health. It was submitted that he needs to be released to seek treatment from appropriate medical practitioners for his mental illness which was diagnosed by Dr Neilssen as being bipolar disorder. A letter from a Dr Khaled Osman dated 1 November 2018 was put forward in this regard. Dr Osman is a general practitioner. He said he has been made aware that the applicant has bipolar disorder, and that if he is released to bail pending his appeal he has to seek medical and professional intervention to address his mental health condition, treatment and follow up. Dr Osman said that he is prepared to facilitate the treatment of the applicant as a condition of his bail. He says that he has access to a wide range of services for mental health treatment including counselling, psychology and psychiatry.
2. Two preliminary matters should be noted. First, Ms Single for the Crown said that Dr Osman is in fact the applicant's brother-in-law. This was not a matter disclosed in the first instance by the applicant or his legal advisors. Secondly, despite what Dr Osman said about the applicant having to seek medical and professional intervention if released on bail, the bail conditions put forward on behalf of the applicant do not make reference to that matter.
3. In an affidavit put forward on behalf of the applicant, his sister Sanaa Mehajer said in her affidavit of 30 October 2018: Whilst he has been in custody, he has told me that he has made a number of attempts to seek psychiatric help but has been unsuccessful.
4. I note that Mr Mehajer has not given evidence on the present application. In any event, what Sanaa Mehajer says appears to be contrary to the records of Justice Health. On 2 February 2018 the note disclosed that the applicant had previously had thoughts of jumping from a landing to kill himself in the police cell. He told the person from Justice Health that he had suicidal thoughts because he was in shock about being taken into custody. However, he denied current thoughts of suicide or deliberate self-harm or concern for his own safety.
5. On 12 February 2018 he told an officer from Justice Health that he had been diagnosed with bipolar disorder by his GP. He was asked why he had not disclosed this when first seen by Justice Health, and he said he did not think it was important. He said he wanted to contact a private psychiatrist for a court report but did not request any psychological help. On 23 May 2018 he mentioned he was seeing Dr Neilssen for a report and a note was made "no psychology". A psychology referral was included in his plan.
6. There is no evidence to suggest that the applicant has been unable to access psychological or psychiatric services in custody that he has sought. Such services are available in a custodial setting. No basis has been demonstrated for showing that the applicant needs to be released on bail to have his mental health issues dealt with.
7. The other aspect of this matter is that the applicant submits he needs to be released to have a psychiatrist examine him to endeavour to ascertain how long it is that he has suffered from bipolar disorder. It should first be noted that Dr Neilssen, having examined him and diagnosed him in that way, said he was unable to comment on his state of mind in 2012. He could only say that, as a general rule, there is a gap of five years between initiation of symptoms and treatment. The more significant point is that psychiatrists regularly assess persons in custody for diagnostic reasons, either by seeing them in person or through AVL. In any event, the diagnosis was said not to be for the purpose of relying on diminished responsibility at the hearing of the appeal. Rather, it is for sentence purposes, as Dr Neilssen's report was used at the first sentence proceedings.
8. Again, were it not for the fact that the applicant has lodged an appeal, there is almost no prospect that he would be granted bail from a custodial sentence to have mental health issues dealt with that can be dealt with by Justice Health, or for some form of further diagnosis. It is well known that a large contingent of incarcerated persons have mental health issues.

Bail concerns

1. It is necessary to assess any bail concerns. The Crown suggests that those concerns are that the applicant will continue to commit serious criminal offences and may not appear at the hearing. In relation to the latter the Crown concedes that the risk of flight can be appropriately mitigated through the imposition of conditions.
2. That concession is properly made. The applicant has surrendered his passports. Further, there is the offer of security in the sum of $200,000 from a friend of the applicant's family. I am satisfied that bail conditions will sufficiently ameliorate any concern that the applicant will not appear at the hearing.
3. In relation to the further commission of offences, I note first what R A Hulme J said in his judgment as follows: [30] Overall the AFP submits that the number and seriousness of the offences that are alleged to have been committed by Mr Mehajer over the last year or so is increasing in number and relative seriousness when one looks at his criminal history overall. There is force in that contention. … [35] Many reasons were given today in the submissions on behalf of the AFP for the proposition that Mr Mehajer denies responsibility and blames others in respect of all of his legal problems. I have not mentioned them all but the submissions of Ms Single set out quite a number of them. [36] I am driven to conclude that Mr Mehajer has an arrogant disregard for the law of this State and that there is a very significant prospect that if granted bail, even on the strict terms that are proposed, he will breach it; he will blame others for the breach and deflect responsibility from himself. And, given the trend of alleged offending over the last 12 months there is a real and significant prospect of him committing a further serious offence. The risk is unacceptable.
4. On 1 March 2018 the applicant was convicted of assault occasioning actual bodily harm of a taxi driver and destroying or damaging property. Those offences occurred on 2 April 2017. The applicant was sentenced to a three-year s 9 bond for the assault occasioning actual bodily harm and an 18-month s 9 bond for the property offence. An appeal lodged by him to the District Court was withdrawn.
5. On 23 February 2018 he was convicted of assault occasioning actual bodily harm on a reporter. That offence also occurred on 2 April 2017. He was given a s 10A conviction with no other penalty.
6. On 16 October 2017 the applicant was on bail for offences for which he was due to attend court on 16 October 2017. On that day he was involved in a motor vehicle accident. As a result he was charged with a number of offences including doing an act with intent to pervert the course of justice. This is a strictly indictable offence carrying a maximum penalty of 14 years' imprisonment. He was charged with supplying a prohibited drug in a greater than indictable quantity. That is a strictly indictable offence carrying a maximum penalty of 15 years' imprisonment. He is now also being charged with publishing a false or misleading statement pursuant to s 192G of the Crimes Act 1900 (NSW). The DPP has elected to deal with that matter on indictment.
7. On 7 March 2018 the applicant made a release application in the Local Court and tendered documents in support of that application. One or more of those documents is alleged to have been false and the applicant was charged with doing an act with intent to pervert the course of justice.
8. There are some other charges yet to be heard, all dating from the end of 2017, of stalk and intimidate, contravene an AVO, reckless driving and negligent driving.
9. The applicant had been convicted at Burwood Local Court on 17 May 2018 for stalking and intimidating his former wife on 10 November 2017. However, an appeal to the District Court has resulted in his appeal being upheld and that conviction quashed. That is one aspect of this matter that has changed since R A Hulme J's judgment, and is in the applicant's favour. However, a number of other matters have also changed to the detriment of the applicant.
10. Justice Hulme's judgment was delivered on 21 August 2018 where he made the remarks about the applicant's arrogant disregard for the law. Thereafter, the applicant has incurred the following punishments for the following custodial breaches: (a) On 25 August 2018 the applicant was found to have refused or failed a drug sample in custody resulting in 42 days off contact visits, amenities, buy-ups and television. (b) On 27 August 2018 he was found to have failed to comply with correctional centre routine and given two days in the cells. (c) On 28 August 2018 he was found to have unlawfully used a phone or fax and given 14 days off phone calls. (d) On the same day he was found to have unlawfully delivered or received an article and given 21 days off buy-ups. (e) On 6 September 2018 he was found to have disobeyed a direction and was given three days in the cells. (f) On the same he was found to have avoided a correctional centre routine and was given three days in the cells. (g) On 7 September 2018 he was found to have assaulted a person, believed to be a prison officer and to have disobeyed a direction. For those matters he was given 56 days off buy-ups, contact visits, phone calls, television, amenities and partaking at leisure time activity. That is the maximum correctional sentence that can be imposed. (h) Finally, on 10 September 2018 he was found to have unlawfully delivered or received an article and was given three days in the cells.
11. It was submitted on his behalf that an explanation for his custodial offences is the difficulty that he has had adjusting to custody. I do not accept that explanation. His custodial record is considerably worse than most custodial records that I have seen in the bail lists, even for persons having unresolved drug addiction problems. The offences entirely bear out R A Hulme J's assessment that the applicant has an arrogant disregard for the law. Whether or not this behaviour derives from his bipolar condition is not to the point. That condition remains untreated and there is no evidence that the applicant is actively seeking to have it treated. All I have is a submission to that effect from his senior counsel. In the meantime, it is proposed that he be released on bail in an untreated condition.
12. In my opinion, his behaviour in custody resulting in the custodial offences mentioned is a clear indication that the applicant is not prepared to abide by the law or by rules or regulations. If he is not prepared to do that whilst in a custodial setting, I could have no confidence, when taken together with the offences with which he has been charged over the past 18 months, and his breaches of bail earlier this year, that he will comply with bail conditions nor that he will not commit a further serious offence if released to bail. The bail concern I have in relation to further offending is at the level of an unacceptable risk, particularly because his mental health issues are untreated and he has done nothing about having them treated.
13. After I had reserved my decision in this matter, the applicant forwarded to the bails registry of the Court what purported to be a mixture of evidence and further submissions made in response to the Crown's submissions. These were sent without leave of the Court and without even the knowledge of the applicant's legal advisers. The applicant says in the submissions that they are: crucial, as it answers questions raised during my self-representation before J Hume (sic) - matters that were before appointment of QC Finnane and lawyer Abbigale (sic) Bannister.
14. I sought submissions from the Crown and the applicant's lawyers as to whether and how I should deal with this material. The Crown submitted that it was inappropriate to receive further material from the applicant personally when he was represented and, to the extent that the material constituted evidence, the Crown desired to cross-examine the applicant. The applicant's lawyers submitted that I should receive the material and consider it. They agreed with the Crown that the material was chiefly evidence, resisted the need for cross-examination and submitted that it was important.
15. The provision of the material was highly irregular. The applicant should understand that when he is legally represented, his lawyers speak for him. However, in all of the circumstances I have read the material. It largely concerns peripheral matters such as his Legal Aid application, his sequestration, his sister's inability to help him, and his attempts to see a psychiatrist whilst in custody of which no detail was provided. It attempts to explain away his custodial offences. What it does not do is throw any light on the central inquiry, which is the consideration of the prospects of success of his appeal. No information is provided about that matter at all. Nor does anything said in the material assuage my bail concern that he will continue to commit further serious offences.
16. Accordingly, bail is refused.

Amendments 08 November 2018 - Typographical error 09 November 2018 - Title page - typographical error 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: 09 November 2018