Mehajer v Director of Public Prosecutions

[2024] NSWCCA 172

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mehajer v Director of Public Prosecutions [2024] NSWCCA 172

Hearing dates:

28 August 2024

Date of orders:

28 August 2024

Decision date:

28 August 2024

Before:

Fagan J; N Adams J; Faulkner J

Decision:

Application for Bail Refused

Catchwords:

CRIME – Bail – Appeal bail – applicant required to establish that special or exceptional circumstances exist – where applicant to be sentenced for unrelated convictions shortly after bail hearing – where it is likely that further custodial sentence will be imposed on applicant – where applicant has not proved that proposed appeals are most likely to succeed – application refused

Legislation Cited:

Bail Act 2013 (NSW) ss 22, 67(1)(e)

Criminal Appeal Act 1912 (NSW) ss 5F(3), 10(2)(b)

Supreme Court (Criminal Appeal) Rules 2021 r 3.1(3)

Cases Cited:

Dietrich v R (1992) 177 CLR 292

El-Hilli and Melville v R [2015] NSWCCA 146

HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141

Lelikan v Director of Public Prosecutions (Cth) [2016] NSWSC 1467

Mehajer v R [2023] NSWCCA 101

Obeid v R (No.2) [2016] NSWCCA 321

R v Cranston [2020] NSWSC 469

R v Khayat (No 11) [2019] NSWSC 1320

Robinson v R (1991) 65 ALJR 519

Samandi v DPP [2020] NSWCCA 102

Category:

Principal judgment

Parties:

Salim Mehajer (Applicant) (self-represented)
Rex (Respondent)

Representation:

Counsel:
P Hogan (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2024/00261579

JUDGMENT

1. THE COURT: On 9 May 2024 a custodial sentence was imposed on Salim Mehajer (the applicant) for two groups of offences for which he was convicted after separate trials. For each case the applicant filed a notice of intention to appeal on 5 August 2024, for which the Registrar granted extensions of time. In each case the applicant has stated his intention to appeal against both the conviction and the sentence.

2. The applicant made an application for Supreme Court bail pending the hearing of his appeals. On 4 July 2024 the application was heard and refused by Sweeney J. On 5 July 2024 the applicant filed a further application for bail in this Court. In view of the refusal by Sweeney J, the Court may hear the further application under s 67(1)(e) of the Bail Act 2013 (NSW).

3. Having heard the further application on 28 August 2024, the Court ordered that the application be dismissed. These are the reasons for doing so.

Background

4. As set out above the applicant has been convicted for two groups of offences for which bail was sought. The first is a group of domestic violence offences. The second is a group of offences arising from the fraudulent use of documents.

Domestic violence offences

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.

False documents offences

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.

Sentencing

16. Both cases were listed for sentencing on 4 August 2023 but on that occasion the hearing was adjourned following an application by the applicant so that he could obtain further psychological material. The sentence hearing resumed on 8 December 2023 following which the Court ordered a Justice Health report and relisted the case for sentencing on 23 February 2024. That date however was vacated due to delay in receipt of the Justice Health report.

17. The hearing resumed on 17 April 2024 on which occasion the applicant’s previous legal representatives formally withdrew. The Justice Health report was tendered. The proceedings were then listed on 23 April 2024. On that date, following further submissions by the applicant and the Crown, the case was listed for sentencing on 9 May 2024.

18. At the sentence hearing on 9 May 2024, the applicant was self-represented.

19. On 9 May 2024 Bennett SC DCJ imposed a single aggregate sentence of 7 years and 9 months for the domestic violence offences and the false documents offences. The sentence commenced on 19 January 2022 and will expire on 18 October 2029.

20. The non-parole period is 3 years and 6 months. The applicant will first become eligible to apply for parole on 18 July 2025.

Appeals

21. The applicant first filed a notice of intention to appeal against his conviction for the domestic violence offences on 6 June 2023. Under Supreme Court (Criminal Appeal) Rules 2021, rule 3.1(3) the notice of intention to appeal had effect for 12 months, which effect expired on 5 June 2024. The applicant did not file a notice of appeal within that period.

22. The applicant filed a notice of intention to appeal against his conviction for the false documents offences on 3 July 2023. With an extension of time from the Registrar, the applicant filed a further notice of intention to appeal on 3 October 2023 which will continue to have effect until 2 October 2024.

23. In each case, on 5 August 2024 the applicant filed a further notice of intention to appeal with an extension of time from the Registrar. These notices of intention to appeal are the first such notices filed after the sentence was handed down on 9 May 2024. They state the intention to appeal against the sentence as well as conviction.

24. At no time has the applicant filed:

1. a notice of appeal against the conviction in respect of either case; or

2. an application for leave to appeal against the sentence.

25. No hearing date has been set for the appeals. Apart from the filing of the notices of intention to appeal, no progress has been made in preparation of the appeals or the application for leave to appeal.

Further convictions

26. In addition to the domestic violence offences and the false documents offences, in August 2024 the applicant pleaded guilty to two further groups of offences. They are:

1. the offence of doing an act to pervert the course of justice, namely staging a motor vehicle collision to avoid a court hearing on 16 October 2017 (with a further offence of dishonesty to proceed on a Form 1); and

2. six offences arising from falsely nominating other people as the driver of vehicles in which traffic offences were committed (with a further 10 offences to proceed on a Form 1).

27. The evidence before the Court on the bail application includes the Indictments which set out the offences to which the applicant pleaded guilty in each of these further cases, together with Statements of Agreed Facts signed by the applicant. The offences are serious offences contrary to provisions of the Crimes Act 1900 (NSW) and the Oaths Act 1900 (NSW) which were enacted to protect the public interest in the proper administration of justice.

28. These further convictions are listed for sentence on 20 September 2024. Whether a further custodial sentence will be imposed on the applicant and, if so, the length of that sentence is not currently known. On the bail application, the Crown adduced evidence that:

1. the Crown has informed the applicant that it is prepared to submit that the applicant has served sufficient time for the car crash offence as part of the non-parole period imposed by Bennett SC DCJ on 9 May 2024 (which will expire on 18 July 2025); and

2. the Crown does not have a position on the sufficiency of time already served by the applicant for the offences arising from the false nomination of drivers.

29. It will be a matter for the sentencing judge, but the evidence before the Court on the bail application does not permit a finding that a further custodial sentence will not be imposed on the applicant on 20 September 2024, or even that it is likely that a further custodial sentence will not be imposed. On the contrary, the evidence on the bail application indicates that it is likely that a further custodial sentence will be imposed on 20 September 2024. If so, the applicant will be in custody after 20 September 2024 whether or not the Court should accede to the bail application that was heard on 28 August 2024.

Intended grounds of appeal

30. For the purposes of his application for bail, the applicant filed Written Submissions to which he attached proposed grounds for his appeals.

Domestic violence offences

31. The applicant’s proposed grounds for his intended appeal against his conviction for the domestic violence offences are as follows:

“APPLICANT’S GROUND OF APPEAL (CONVICTION)

GROUND No.1: The appellant’s trial miscarried by virtue of the trial judge’s failure to stay or adjourn the trial until arrangements were made for Counsel to appear for the appellant at the trial with the consequences that, in all circumstances of the case, the appellant was deprived of his right to a fair trial and of a real chance of acquittal;

GROUND No.2: The appellant’s trial miscarried by virtue of the trial judge’s failure to adjourn the trial until the appellant’s mobile phones were forensically downloaded;

GROUND No.3: The appellant has available to him fresh and new evidence relevant to the complainant’s credit; and

Ground No.4: The appellant’s verdicts were unreasonable and incapable of being support by the evidence[.]”

32. Should leave be granted, the applicant’s proposed grounds for his intended appeal against his sentence for the domestic violence offences are as follows:

“APPLICANT’S GROUND OF APPEAL (SENTENCE)

GROUND No.1: The total sentence and the non-parole period imposed upon the appellant are manifestly excessive;

GROUND No.2: The learned sentencing judge erred in properly applying the appropriate aggregate sentence, and as to considering whether the aggregate was just and appropriate;

GROUND No.3: The learned sentencing judge failed to give adequate weight to the onerous condition and the extra-curial punishment to which the applicant has been subjected to;

GROUND No.4: The learned sentencing judge failed to give adequate weight to the onerous bail conditions to which the applicant has been subjected to prior to being convicted;

GROUND No.5: The learned sentencing judge erred by increasing the balance of term of the sentence imposed on count seven to reflect the finding of special circumstances; and

GROUND No.5: The learned sentencing judge failed to give adequate weight to the appellant’s ‘back-date’ period on sentence and therefore failed to consider whether the aggregate was just and appropriate.”

False document offences

33. The applicant’s proposed grounds for his intended appeal against his conviction for the false documents offences are as follows:

“APPLICANT’S GROUND OF APPEAL (CONVICTION)

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.”

34. Should leave be granted, 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, except they do not include the first Ground 5 referred to above.

Principles for grant of bail pending appeal

35. The prior refusal of the bail application by Sweeney J made this an application which the Court could hear, but it is not an appeal from Sweeney J’s decision. The Court must consider the application de novo: El-Hilli and Melville v R [2015] NSWCCA 146 at [14] (Hamill J, with whom Simpson and Davies JJ agreed).

36. Upon the applicant’s notices of intention to appeal being filed on 5 August 2024 (with the extension of time granted by the Registrar), appeals against each of the applicant’s convictions and the sentence are taken to be pending in the Court: s 10(2)(b) of the Criminal Appeal Act 1912.

37. Section 22 of the Bail Act provides:

22 General limitation on court’s power to release

(1)   Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision—

(a)   an offence for which an appeal is pending in the Court of Criminal Appeal against—

(i) a conviction on indictment, or

(ii)   a sentence imposed on conviction on indictment,

(b)   an offence for which an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a).

(2)   If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why his or her detention is not justified.

(3)   Subject to subsection (1), Division 2 (Unacceptable risk test—all offences) applies to a bail decision made by a court under this section.

38. The applicant’s application for bail falls within s 22(1)(a). The Court must dismiss the application unless special or exceptional circumstances are established.

39. Special or exceptional circumstances are to be determined on a case-by-case basis. In R v Khayat (No 11) [2019] NSWSC 1320 at [14], Adamson J said:

“The authorities also show that the concept of exceptional circumstances is a flexible one which requires a case-by-case examination. Such circumstances may be constituted by a combination of matters together, features that are subjective to an applicant, features which bear upon the nature of the alleged offence and features which emphasise that the applicant is otherwise a person who will answer bail.”

40. The requirement to establish special or exceptional circumstances is at least as onerous as the requirement to show cause under s 16A(1) of the Bail Act: El-Hilli at [11] (Hamill J, with whom Simpson & Davies JJ agreed). It has been described as a significant hurdle. In HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 at [24], Hamill J (with whom Bathurst CJ and Bell P agreed) said:

“However, four things may be observed. First, s 22 creates a significant hurdle to an applicant for bail who is pursuing an appeal against a conviction or sentence in proceedings prosecuted on indictment. Secondly, unlike the “show cause” requirement in ss 16A and 16B of the Bail Act 2013, s 22 incorporates the exhaustive list of factors in s 18 that guide a consideration of whether there is an unacceptable risk in releasing an offender to bail. Third, “special or exceptional circumstances” may exist as a result of a combination of circumstances or features of a case. It is not necessary to establish that the appeal is almost certain to succeed. Fourth, two commonly arising considerations are whether the appeal is arguable or enjoys reasonable prospects of success and whether the sentence the subject of the appeal is likely to expire before the appeal is determined.”

41. In relation to the two common considerations referred to by Hamill J, if the merit of the appeal is the only or principal consideration relied upon to establish special or exceptional circumstances, it is not sufficient for the applicant to show that the grounds are arguable. In such a case, it is necessary for the applicant to show that the appeal is “most likely to succeed”, although the applicant does not have to show that success is virtually inevitable: El-Hilli at [23]-[26].

42. Without more, the fact that the sentence which is the subject of the appeal is likely to expire before the appeal is determined is unlikely to constitute special or exceptional circumstances: Robinson v R (1991) 65 ALJR 519 (Gaudron J); El-Hilli at [19].

43. Consideration of the expiry of the sentence may need to take into account not just the non-parole period, but also the additional period after the applicant will become eligible to apply for parole: Robinson v R at 520. In considering whether there are special or exceptional circumstances the Court ought not simply assume that the applicant will be released from custody immediately upon expiration of the non-parole period. The importance of the prospect of parole depends on the facts of the case, including the particular grounds of appeal.

44. Whether there are special or exceptional circumstances needs to be assessed in light of all the circumstances of the case and not just one circumstance viewed in isolation: Lelikan v Director of Public Prosecutions (Cth) [2016] NSWSC 1467 at [72] (N Adams J). The two most common considerations referred to above ought not be considered in isolation from each other. In a case where the prospects of the appeal are favourable to the applicant, a likelihood that the sentence will expire before the appeal is heard may feature more prominently in the Court’s assessment of whether the circumstances are special or exceptional.

41. The applicant for parole contends that special or exceptional circumstances exist, and he or she bears the onus of “establishing” them. They must be established on the balance of probabilities: s 32(1) of the Bail Act.

Submissions of the applicant

46. The applicant was unrepresented for the bail application. Prior to the hearing he filed documents which included “Skeleton Submissions” and an “Addendum Document” which contained submissions. He also filed a number of Affidavits which were not always sworn and in one case was changed after the date it bears. The Affidavits contained assertions and argumentative material more in the nature of submissions than evidence. In total the applicant relied upon more than 200 pages of documentation. The applicant also made oral submissions at the hearing.

47. The applicant accepted that he must establish special or exceptional circumstances, and that it is a significant hurdle. Beyond that, it was difficult to distil from his written and oral arguments the basis upon which he contended that he had established special or exceptional circumstances. A further fundamental problem was that the applicant’s documents, including his “affidavits”, were generally a series of assertions which were not self-evidently correct. The documents did not generally set out reasoned arguments capable of satisfying the Court of any particular matter.

48. Doing the best we can, the following is a list of circumstances referred to by the applicant in support of his application, together with a summary of the applicant’s submissions in relation to each circumstance:

1. The sentence which is the subject of the appeal will expire on 25 July 2025. The applicant said his proposed appeals are unlikely to be determined by then, which will deprive him of the benefit of the appeals.

2. The applicant said that his appeals are “meritorious and enjoy reasonable prospects”. The applicant has prepared draft submissions in support of some of the Grounds for his appeals against conviction (but not sentence) and provided the draft to the Court. These are addressed in more detail below. Apart from what is contained in the draft submissions, no reasons were articulated to demonstrate the asserted merit of the appeals.

3. The applicant said that he needs to be at liberty in order to prepare his appeals. This circumstance appeared to be made up of a number of elements, namely:

1. The applicant may have to represent himself at the appeals. In recent years the applicant has qualified for legal aid but he does not currently have a grant for the appeals.

2. The applicant is unable to access critical evidence whilst in custody. Before Sweeney J this argument was made in relation to emails which the applicant said he needed to defend the further offences arising from the car crash and the false declaration. The applicant has now pleaded guilty to those offences. To that extent, this argument falls away as far as the proposed appeals are concerned.

3. The applicant also said that he needs to be at liberty so he can personally recover his SIM-card.

4. Related to the SIM-card, the applicant said that he needs to get access to his phones.

4. The conditions of the applicant’s custody are onerous. The applicant was previously “segregated” because of his high profile. The applicant suffers from mental health conditions, including bi-polar disorder.

5. The applicant’s house is about to be sold by the mortgagee in possession. The house is the applicant’s family home. If bail is granted, the applicant believes he will be able to prevent the sale by refinancing the current bank debt. Saving the family home will place his family in less financial hardship. As a further matter, the house contains the applicant’s possessions which are valued at $180,000 and which he wants to sell in order to raise money for legal representation.

49. The applicant emphasised the decision of the Court in Samandi v DPP [2020] NSWCCA 102 where, for the purposes of s 22, the Court was satisfied that there were special or exceptional circumstances having regard to two matters, namely:

1. the appeal against conviction and sentence would not be heard until shortly before the non-parole period expired; and

2. the appeal against the severity of the sentence was shown to be reasonably arguable because there was evidence about the offender’s mental health which was available at the time of sentencing but not brought to the attention of the court, possibly due to the incompetence of legal representation.

50. The applicant submitted that his case is materially the same as Samandi v DPP.

51. For the reasons which follow, we are not satisfied that the circumstances relied upon by the applicant, whether taken individually or as a group, are special or exceptional so as to enliven the power to grant bail under s 22. The circumstances relied upon by the applicant are addressed in turn.

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

52. Other than in broad terms, the Court was not able to determine when the applicant’s appeals are likely to be heard. The Crown appears to be ready to proceed immediately to a hearing but the applicant says he needs significantly more time to prepare. On the applicant’s arguments, his appeals may not be determined before 18 July 2025 when he will first become eligible to apply for parole under the existing sentence. It is not necessary to determine the likelihood that that is correct. This issue may be assumed in the applicant’s favour.

53. Nor is it necessary for the Court to decide whether past delays in instituting the appeals against the convictions and prosecuting them is the fault of the applicant. It is not necessary to decide whether the appeals, against either the convictions or the sentence, will be prosecuted to final hearing. The applicant asserts that it is his current intention to proceed with his appeals, although given the lack of merit (see below) they may instead be abandoned. It is not necessary to decide whether the applicant is likely to be granted parole when he first applies, or whether his custody is likely to continue beyond 18 July 2025. On the current application all these matters may be assumed in the applicant’s favour.

54. The benefit of the appeals which the Court might otherwise have sought to preserve by an immediate grant of bail is the applicant’s entitlement to be at liberty if the appeals are successful, resulting in convictions being set aside or the sentence being reduced. However, in this case any such benefit is currently illusory. The applicant is facing a further sentencing hearing on 20 September 2024. As set out above, the further sentence(s) to be considered on that date will be for the unrelated public justice offences to which the applicant has more recently pleaded guilty. Unless the outcome of the sentencing hearing on 20 September 2024 is that no further custodial term is imposed, or a custodial term is imposed which will expire before 18 July 2025, the applicant will not be entitled to liberty prior to that date regardless of the outcome of his appeals against his convictions for the domestic violence offences and the false documents offences.

55. The applicant asserts that he will not receive any additional time in custody as a result of the sentencing on 20 September 2024. There is no basis for that assertion. It flows from the applicant’s evident misunderstanding of the Crown’s attitude to the sentencing as recorded at [28] above. In any event, the sentence or sentences to be imposed on the applicant (if any) will be a matter for the sentencing judge.

56. As matters currently stand, this particular circumstance does not establish that there are special or exceptional circumstances for the purposes of s 22.

Merits of the proposed appeals

57. On an application for bail pending appeal, it is neither necessary nor appropriate for the Court to address the applicant’s prospects for his appeals other than by way of a broad overall view: Obeid v R (No.2) [2016] NSWCCA 321 at [17] (Bathurst CJ, Hoeben CJ at CL & R A Hulme J). It cannot be otherwise in this case because the Court does not have before it the evidence which was adduced at the trials, let alone the remarks on sentence handed down by Bennett SC DCJ.

58. As the applicant relies upon the merit of his appeals as a special or exceptional circumstance, he bears the burden of satisfying the Court that the appeals have sufficient prospects so that, whether alone or in combination with other matters, special or exceptional circumstances are established: Samandi v DPP [2020] NSWCCA 102 at [16], [20] and [23] (Harrison, R A Hulme & Wright JJ).

59. The applicant did not demonstrate that his appeals are reasonably arguable or enjoy reasonable prospects. He certainly did not demonstrate that they are most likely to succeed. A broad overall view of each of the individual Grounds is as follows.

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

60. Ground 1 is set out at [31] above. In his oral submissions in support of the bail application, the applicant said that Ground 1 is his “strongest ground”.

61. Draft written submissions have been prepared by the applicant, although pages were missing from the draft adduced into evidence on the bail application. The burden of the applicant’s argument is that, when the trial judge dismissed the application for a stay on 5 April 2023, the applicant had been denied legal aid because he had not “verified” certain information given to the Legal Aid Commission, which the trial judge viewed as “exhausting all avenues” with legal aid. The applicant asserts that his legal aid problem was in fact capable of cure, as demonstrated retrospectively by the applicant successfully obtaining legal aid on 31 May 2023. More specifically, the applicant submits that the trial judge’s exercise of the discretion not to stay was vitiated by an error of fact. The applicant does not identify the error with specificity although it relates to his dealings with the Legal Aid Commission.

62. As is apparent from Dietrich v R (1992) 177 CLR 292 at 315 (Mason CJ & McHugh J), the principle which lies at the heart of Ground 1 only applies where an application for a stay is made by an accused who is indigent. Unless that threshold requirement is satisfied, no question arises as to whether a stay ought to be granted in order to ensure that the accused has legal representation. No question arises as to whether the accused can obtain legal aid. The accused must prove that he or she is indigent. If the accused is not forthcoming about his or her financial circumstances, the Court may not be satisfied about this threshold requirement: R v Cranston [2020] NSWSC 469 at [11] (Beech-Jones J).

63. On 5 April 2023 Bennet SC DCJ dismissed the application for the stay because the applicant did not prove that he was indigent. Thereafter the trial judge did not need to consider the applicant’s dealings with the Legal Aid Commission and his Honour did not do so.

64. On 17 April 2023 the applicant applied to the Court of Criminal Appeal for leave to appeal under s 5F of the Criminal Appeal Act 1912. The proposed grounds of that appeal are set out in paragraph [9] of that judgment: Mehajer v R [2023] NSWCCA 101. The applicant sought to challenge the finding of fact that he was not indigent. There were other grounds, but none of them challenged the way the trial judge dealt with the applicant’s dealings with the Legal Aid Commission. The Court of Criminal Appeal held that, on the evidence, it was open to the trial judge to find that the applicant was not indigent. The s 5F appeal was dismissed.

65. This proposed Ground of appeal cannot be characterised as most likely to succeed.

Domestic violence conviction – failure to adjourn to examine the applicant’s phones

66. The submissions and supporting material put forward by the applicant do not identify or explain the Ground in a way which permits the Court to make an assessment of the merits. They do not demonstrate that this Ground has any merit.

67. On his appeal, the applicant proposes to argue that his domestic violence trial miscarried because the trial judge failed to adjourn “until the appellant’s mobile phones were forensically examined”. The procedural premise for the argument is unexplained. Nothing is said about when the application for the adjournment was made to the trial judge, the evidence which supported it, the submissions made to the trial judge and the reasons why the application was dismissed. Nothing is said about what the trial judge was told about how long it would take to get access, or whether it was even possible. The duration of the necessary adjournment is not revealed, nor is it known whether the applicant sought an indefinite adjournment. The merit in this Ground cannot be assessed without knowing the procedural context.

68. The applicant’s submissions on this Ground are confined to assertions about previous difficulties in accessing the phones. It may be accepted that access is impossible. The applicant has provided a report dated 16 June 2024 from a forensic examiner of phones which says that it is not possible to access the phones.

69. However, nothing is said which explains why access to the phones was necessary in 2023 to ensure that the domestic violence trial did not miscarry. Specifically, the evidence sought to be obtained from the phones and the probative value of that evidence has not been explained in any meaningful way. That critical part of argument is left to inference. Within the applicant’s materials, the only references to evidence sought to be obtained from the phones are:

1. “the complainant had previously employed the practice of sending messages to herself between 2 of her own devices, in circumstances where she would save the sender’s name as someone else and then taking screenshots”; and

2. “exculpatory evidence contained on my mobile phone, namely text messages (between my ex-partner and I), miscellaneous emails and images”.

70. The domestic violence was constituted by four physical incidents in April 2018, June (or July) 2019 and October 2020. The applicant has not referred to any screenshot, text, email or image associated with the applicant’s phones (cf the photographs of bruises on MB's phone) which might be the subject of investigation by him. The applicant has not referred to any evidence adduced at the trial which might have been challenged by material on his phone, much less demonstrated the materiality of any such evidence to the jury’s verdicts. The applicant has not referred to any cross examination of MB which touched upon any relevant issue.

71. In the absence of a coherent explanation of this Ground, it cannot be regarded as having merit.

Domestic violence conviction – fresh evidence relevant to the MB’s credit

72. The applicant’s conviction for the domestic violence offences followed the trial at which MB gave evidence. The jury’s verdicts show that her evidence was accepted.

73. This Ground is described by the applicant as fresh and new evidence relevant to MB’s “credit”.

74. As applicable to the current case, the principles to be applied to the advent of fresh and new evidence are set out in Xie v R [2021] NSWCCA 1 at [433]-[434] (Bathurst CJ, R A Hulme & Beech-Jones JJ) as follows:

“[433] The Crown contended that none of that evidence answered the description of “fresh” or “new” evidence and it was all therefore inadmissible. In MRW v R [2011] NSWCCA 260 at [46] (“MRW”), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely:

‘First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant.’

[434]   With the first question, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material “could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case” (Ratten at 516 per Barwick CJ). If the material does not meet the first of the above tests, that is, if it is not fresh evidence but only new evidence, then there would only be a miscarriage of justice if the appellant satisfies this Court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520).”

75. The applicant’s draft submissions in support of this Ground which identify five items of evidence which are said to be relevant to MB’s credit and which are “fresh”. Without descending to detail, which should be reserved to the final hearing of the intended appeals, it is sufficient for present purposes to say that, with respect to some of the putative additional evidence, the applicant has not demonstrated that with reasonable diligence he was nevertheless unable to adduce it at trial. With respect to the remaining items of additional items, it appears that the proposed evidence would have been irrelevant to any issue in the trial and/or would have been otherwise inadmissible.

76. This Ground cannot be said to be at all likely to succeed.

Domestic violence conviction - unreasonable verdict

77. This Ground was not relied upon for the bail application which was made to Sweeney J on 4 July 2024. The applicant has not prepared any draft submissions for this Ground. Nothing has been said as to why this Ground should be viewed as reasonably arguable. On the contrary, the applicant says that he does not have a full record of his domestic violence trial, which raises the question how he can now properly say that the jury’s verdict was unreasonable and incapable of being supported by the evidence.

78. This Ground has not been shown to be anything other than speculative.

False documents convictions – the third jury note

79. The Grounds to be relied upon by the applicant in an intended appeal against conviction on the false documents charges are set out at [33] above.

80. No submissions were made in the bail application to support Ground 1. The draft submissions prepared in January 2024 state that the applicant is unable to address this Ground because he requires the records of the trial. The terms of the “third jury note” and the directions said erroneously to have been given in response to it are not known. This is a purely speculative Ground. The applicant has not demonstrated that it is reasonably arguable.

False documents convictions – unreasonable verdicts on counts 2 and 4

81. The jury in the false documents trial convicted the applicant of four offences, of which counts 2 and 4 related to “using” two false documents (an affidavit and a statutory declaration) “to obtain a financial advantage”. By its guilty verdict, the jury is taken to have found the relevant factual matters proved beyond reasonable doubt.

82. The applicant’s draft submissions address this Ground merely by asserting that the opposite fact is true. The applicant refers to two items of evidence which he says support the assertion. The support is not self-evident. An assessment of this Ground would require a consideration of the evidence as a whole. The applicant does not demonstrate how it may be argued that the jury’s finding was unreasonable or not able to be supported by the evidence.

False documents convictions – fresh evidence relevant to counts 1, 2, 3 and 4

83. Counts 1 and 3 of the false documents convictions relate to the “making” of the two false documents (as opposed to “using” them). This Ground of appeal is based on near contemporaneous versions of the false documents which the applicant asserts are slightly different to the two documents for the making of which the applicant was convicted. The applicant submitted these other versions are fresh evidence. All three were in existence at the date of the trial. On the applicant’s own case, copies of them were located on his laptop which he arranged to be given to his solicitors. There were other copies of the documents in other locations. Two of three documents were Affidavits sworn by the applicant himself and filed with the Federal Court in proceedings in which the applicant was the plaintiff. The third document was a statutory declaration which the applicant asserted was genuine and a “near carbon copy” of the false statutory declaration. On the evidence before the Court on the bail application, none of these documents is fresh evidence. The affidavits were in the Federal Court Registry and there is nothing to suggest that a copy of the statutory declaration was not also available. In any event, none of the documents are otherwise capable of demonstrating the applicant’s convictions for the false documents offences was a miscarriage of justice.

False documents convictions – the applicant’s laptop

84. Nothing is known about Ground 4 other than the fact that the applicant’s sister took a laptop to Court where it was taken by an officer of the Court and given to the Sherriff. It could not subsequently be retrieved by the applicant’s solicitor. The applicant asserts that the loss “caused me to not be able to locate the said evidence before the jury”. This appears to be reference to the three documents relied upon for the previous Ground.

85. This Ground does not add to Ground 3, considered above.

Proposed Grounds of appeal in relation to the sentence

86. As set out above, Bennett SC DCJ imposed a single aggregate sentence for the domestic violence offences and the false documents offences.

87. The Grounds upon which the applicant wishes to appeal against the sentence are set out at [32] above.

88. The applicant made no submissions about his prospects for the appeal against sentence. In paragraph 28 of his Addendum Document dated 28 August 2024, the applicant stated:

“I concede that I have not been able to properly address my grounds and merits of my appeals; however, this is an issue which I could overcome if on bail.”

89. In oral submissions, the applicant said:

“I will not be making any submissions in relation to my grounds of appeal because such a submission will require access to the record of the trial.”

90. The Grounds specified for the intended appeal against sentence are unexplained. The sentencing judge’s remarks on sentence are not before the Court, much less the evidence.

91. The applicant has not demonstrated that his appeal against the sentence is reasonably arguable.

Further Grounds?

92. At the hearing of the bail application on 28 August 2024 the applicant said that the Grounds of appeal would be expanded but did not give any specifics. There is no reason to think that a future review of the full record of the trials will reveal further Grounds of appeal which may be properly brought.

Summary

93. The applicant has not demonstrated that his appeals are reasonably arguable. The merits of the applicant’s proposed appeals do not qualify as a special or exceptional circumstance.

94. This conclusion means that the applicant’s case is different to Samandi v DPP. In Samandi v DPP the offender had a single Ground of appeal which the Court was able to identify with precision. Whether or not it was correct, the Court was able to discern the argument, understand how the relevant medical evidence was dealt with during the proceedings on sentence and assess how success on the proposed argument would be directly relevant to the severity of the sentence. The Court concluded that it could not be said that the appeal was not reasonably arguable or did not have some reasonable prospects of success: Samandi v DPP at [34]. No such conclusion can be reached in the case currently before the Court.

Liberty and preparation for the appeals

95. The applicant’s submissions on this aspect of his argument contained many broad statements but few details.

Legal aid and the prospect of self-representation at the appeals

96. Generally (although not exclusively), the premise for the submission that this circumstance is special or exceptional is that the applicant will have to prepare and conduct his appeals without legal representation. There is no evidence to make good the premise. Earlier this year (on a date which is unclear) the applicant was without a grant for the appeals, but a final decision awaited a review by the Legal Aid Review Committee. The outcome of the review is unknown. The applicant has been granted legal aid in the past, including on 9 June 2023. If the applicant should be refused legal aid for the appeals because the Legal Aid Commission concludes that the appeals are not reasonably arguable, so that the applicant has to prepare the appeals himself, that would not be a special or exceptional circumstance for the purpose of s 22.

97. If the applicant does obtain legal representation, there is nothing to distinguish this case from any other case where an appeal against conviction and sentence is brought by an offender who is in custody. On the applicant’s argument, the one potential exception is the issue arising from access to his SIM-card and/or phones.

Phone access

98. The applicant argued that he needs to access phones which were most recently in the possession of his forensic telephone expert. In the context of the bail application, the applicant puts forward two propositions:

1. he needs access to the phones for the purposes of conducting his appeals; and

2. he can only access the phones if he can personally go to an OPTUS shop.

99. The first proposition has not been demonstrated to be true. For the reasons given above, the applicant has not explained what he hopes to achieve from access to his phones. Nor has he explained why he cannot achieve the same objectives by other means, including the compulsory processes of the Court.

100. As for the second proposition, the applicant asserts that OPTUS can replace his SIM-card, but only if he personally goes to the shop. The applicant says that he provided a named solicitor with an executed power of attorney but she has told him that “OPTUS require [the applicant] to go into an OPTUS store”. There is no evidence from the solicitor and no proper explanation as to why not. There is no evidence from OPTUS. On the evidence before the Court, the need for the applicant personally to go to an OPTUS shop is a bare assertion.

Summary

101. The applicant has not demonstrated that he has a need for liberty which is a special or exceptional circumstance for the purpose of s 22.

Onerous custody conditions

102. The applicant made a number of assertions about the conditions of his custody, including that he was previously held in isolation which resulted in a number of hardships. The material was generalised. There is no evidence to support these assertions. In any event, the applicant’s statements are directed to previous conditions and not those which pertain today. There is nothing to suggest that the applicant will be required to endure onerous custody conditions between now and when the appeals are heard.

103. The applicant made a number of assertions about his mental health, especially in relation to a bi-polar disorder. There is direct medical evidence that is unsupportive of the applicant in this respect. It is not necessary to address this issue other than to observe that, on the applicant’s own case, he has now been unmedicated for a bi-polar disorder for years and there is no evidence of any symptoms which would warrant a concern that the continuation of his custody will be onerous on that account.

Sale of the family home

104. Apart from an asserted belief, the applicant did not given any coherent reason as to how being at liberty would give him an ability to prevent the mortgagee’s sale of his house which he does not otherwise have in custody. The applicant stated that “reputation risk” is the most important consideration for lenders and that they will not do business with someone who is in prison. The unspoken premise for that argument is that lenders will regard more favourably the reputation risk of someone who is on bail and is to be sentenced on 20 September 2024 for offences to which the applicant pleaded guilty, all of which offences have as an essential element the applicant’s dishonesty. The premise may be doubted.

105. The applicant asserted that saving the family home will relieve the financial hardship of his family. There is no explanation of his family’s financial hardship nor any explanation of how that hardship will be relieved if the applicant’s house is saved from a mortgagee’s sale. There is no evidence of any family hardship. Indeed, there is no evidence that the applicant has any family in the sense of dependents. There is no dispute that the applicant’s marriage has ended and there are no children. The applicant is a 38 year old man with seven siblings, five of whom have studied in the area of law. The applicant also referred to his mother, but there is no suggestion that she is dependent on the applicant. There is no evidence that anyone lives at the house or has done so in recent years.

106. The evidence showed that a notice was issued under ss 20 and 21 of the Uncollected Goods Act 1995 by which two principals at FTI Consultants (unexplained, but presumably connected with the applicant’s bankruptcy or other debt obligations) were authorised to dispose of the contents of the applicant’s house if certain steps were not taken by 15 May 2024. That deadline having expired over three months ago, nothing suggests that the contents of the applicant’s house have any further bearing on the current bail application.

Other matters

107. In relation to this bail application, the applicant also makes a number of criticisms of the hearing before Sweeney J, and her Honour’s decision to refuse bail on 4 July 2024. The application before the Court on 28 August 2024 was a fresh application and those matters may be put to one side: Obeid v R (No.2) [2016] NSWCCA 321 at [6] (Bathurst CJ, Hoeben CJ at CL & R A Hulme J).

Conclusion

108. The applicant did not establish that special or exceptional circumstances exist. As such, by virtue of s 22 of the Bail Act 2013 the Court must not grant bail.

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Amendments

27 September 2024 - The complainant anonymised at [6], [70], [72], [73], [75] and a sub-heading on p 20, and minor formatting changes.

Decision last updated: 27 September 2024