Mehajer v Director of Public Prosecutions (NSW)

[2025] NSWCCA 79

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mehajer v Director of Public Prosecutions (NSW) [2025] NSWCCA 79

Hearing dates:

26 March 2025 (further submissions filed 31 March 2025, 7 April 2025, 7 and 19 May 2025).

Date of orders:

30 May 2025

Decision date:

30 May 2025

Before:

Hamill J at [1]
McNaughton J at [43]
Rigg J at [44]

Decision:

Dismiss the further release application pursuant to s 74 of the Bail Act 2013 (NSW).

Catchwords:

CRIMINAL LAW – release application – appeals bail – where previous applications dismissed by the Court of Criminal Appeal – statutory prohibition on multiple applications – whether grounds established for further application – whether material information to be presented that was not presented on earlier applications – whether circumstances relevant to the grant of bail had changed – self-represented applicant – indulgent approach to filing of evidence and submissions in contravention to Registrar’s directions and after the hearing – whether “more settled” grounds appeal amounted to grounds under s 74(3) of the Bail Act – changes to grounds cosmetic – whether imminence of applicant’s release a relevant change of circumstance – release date known on two previous release applications – provisional decision to grant parole – review hearing pending – relevance to release application where no outstanding charges – grounds for further release application not established – application dismissed – decision should not impact on decision of Parole Authority

Legislation Cited:

Bail Act 2013 (NSW), ss 17-19, 22, 61, 74

Cases Cited:

Crane v Director of Public Prosecutions (NSW) [2021] NSWSC 1341

Decision Restricted [2023] NSWSC 36

El-Hilli & Melville v R [2015] NSWCCA 14

Fantakis v Director of Public Prosecutions (NSW) [2021] NSWCCA 271

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

Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662

Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23

Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172

Mehajer v Office of the Director of Public Prosecutions [2023] NSWCCA 49

Mehajer v R [2024] NSWCCA 226

Mehajer v R (No 2) [2024] NSWCCA 247

R v Fallon [2017] NSWSC 1796

R v Mehajer [2024] NSWDC 240

R v Mehajer (No 3) [2023] NSWDC 197

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Salim Mehajer (Applicant) (Self-represented)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
B Costello (Respondent)

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

File Number(s):

2025/00054755

Publication restriction:

N/A

JUDGMENT

1. HAMILL J: Salim Mehajer (“Mr Mehajer” or “the applicant”) makes a release application pursuant to the provisions of the Bail Act 2013 (NSW). The Director of Public Prosecutions (“the Director” or “the respondent”) opposes the application.

2. Subject to the provision in s 74 of the Bail Act, the Court has the power to hear the application because there is an appeal and/or an application for leave to appeal pending in the Court: Bail Act, s 61. Mr Mehajer was sentenced on 9 May 2024 following his convictions in two separate trials. The first trial related to offences of violence, including domestic violence offences relating to his former partner (“the domestic violence offences”), while the second trial concerned offences of making false documents (“the fraud offences”). The domestic violence offences were allegedly committed between 2018 and 2020, while the fraud offences are said to have been committed in March 2020. The verdicts in the two trials were returned respectively on 10 May 2023 and 30 June 2023. However, Mr Mehajer has been in more or less continuous custody since 20 January 2021 when he was first refused bail in relation to the domestic violence offences. That period of custody relates not only to the convictions currently under appeal, but also to unrelated matters. A more detailed chronology set out at [11] shows that there was a brief period between 10 January 2023 and 31 January 2023 when the applicant had bail.

3. Putting aside any assessment of risk pursuant to ss 17-19 of the Bail Act, the application faces two substantial obstacles. First, as foreshadowed in the previous paragraph, it is caught by s 74 of the Bail Act which prohibits multiple release applications to the same Court unless there are grounds for such an application. Secondly, assuming there are grounds upon which the Court decides to entertain the application, the Court is “not to grant bail” unless “special or exceptional circumstances exist that justify” that decision: Bail Act, s 22. The latter provision applies because Mr Mehajer’s proposed appeal is against his conviction and sentence on indictment. Its operation has been considered in several decision of this Court: see, for example, El-Hilli & Melville v R [2015] NSWCCA 146, HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141, Fantakis v Director of Public Prosecutions (NSW) [2021] NSWCCA 271 and more than one application involving the applicant himself.

4. The case has a substantial history, which I will set out in more detail below. On 28 August 2024, this Court (Fagan, N Adams and Faulkner JJ) refused a release application: Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172. Then, on 6 December 2024, the Court (Kirk JA, Rothman and Yehia JJ) refused another release application: Mehajer v R [2024] NSWCCA 226. Two weeks later, on 20 December 2024, the Court (similarly constituted) refused leave to re-open the bail proceedings: Mehajer v R (No 2) [2024] NSWCCA 247. In the first of those December decisions, Yehia J provided clear and detailed reasons for judgment with which Kirk JA and Rothman J agreed. Her Honour set out the history and facts of the case, the issues at the trial and some of the matters to be ventilated on the appeal. Her Honour also dealt with the submissions and relevant considerations governing the outcome of the release application. These reasons assume some familiarity with the judgment of Yehia J and also that delivered by the Court in August 2024.

5. The present release application was lodged with the Court registry on (or around) 5 February 2025. Following an exchange of evidence and filing of written submissions, the application was heard on 26 March 2025. Because the applicant filed important documents in the days before the hearing, the Director was granted seven days to file further written submissions. These “supplementary submissions” were filed on 31 March 2025. Mr Mehajer responded on 7 April 2025 by filing more evidence, as well as submissions in reply to the respondent’s supplementary submissions.

6. On 7 May 2025, Mr Mehajer raised additional matters in a letter to the Court and the respondent was, again, given seven days to respond. That last response was received on 19 May 2025.

7. Because Mr Mehajer is self-represented and is in custody, the Court took an indulgent approach to the receipt and consideration of evidence and submissions which were filed in apparent contravention of the Registrar’s directions and/or after the arguments closed. For pragmatic reasons, and because the Director did not strongly oppose it doing so, the Court decided to consider all of the material filed to this point.

8. Mr Mehajer relied on the following material on the release application:

• Ex 1 – a 102-page bundle of material annexed to a letter dated 5 February 2025.

• Ex 2 – a 56-page bundle of material under cover of a letter dated 24 February 2025 which comprised “draft appeal submissions”.

• Ex 3 – a form dated 5 February 2025, signed by Mr Mehajer’s parents, consenting to him residing with them at a named address in Merrylands.

• Ex 4 – revised notice of appeal and submissions in support thereof “eFiled on 25 March 2025” (that is, on the day before the hearing).

• Amended grounds of appeal and revised submissions in support thereof, each of which is marked “eFiled on 1 April 2025”.

• Applicant’s written submissions.

• MFI 2 – “Appellant’s Oral Submissions [Transcribed]” under cover of a letter dated 14 March 2025.

• Letter dated 7 May 2025 raising issues about the readiness of the appeal and an upcoming parole hearing (said to be listed on 12 May 2025) and asserting “the applicant will be released to parole on 18 July 2025” (emphasis in original).

9. The documentation provided in advance of the hearing also included a draft subpoena (directed to the complainant in the domestic violence offences) along with a letter dated 26 February 2025 purporting to place various conditions on the respondent’s conduct of the case; for example, that she not oppose the filing of the subpoena and will be ready to take a hearing date on the next call-over of the appeal. Mr Mehajer did not press that material on the hearing of the release application.

10. The respondent relied on the following material:

• Ex A – Respondent’s bundle of documents.

• MFI 1 – Respondent’s submissions on the release application.

• Respondent’s supplementary submissions on the release application dated 31 March 2025.

• An email dated 19 May 2025 relating to exhibits which cannot be located and providing an affidavit concerning a recent hearing of the State Parole Authority to which reference was prospectively made in Mr Mehajer’s letter of 7 May 2025.

11. From that material, along with judgments reported on NSW Caselaw and/or recorded on JusticeLink, the following chronology can be discerned:

• On 11 May 2020, the applicant was charged with the fraud offences and granted police bail.

• On 31 December 2020 and 20 January 2021, the applicant was charged with the domestic violence offences. On 20 January 2021, the applicant was refused bail in the Local Court in relation to those offences.

• On 5 February 2021, the Supreme Court (Ierace J) refused bail in relation to the domestic violence offences.

• On 16 February 2022, the Court of Criminal Appeal (Johnson, Harrison and Fagan JJ) refused an application for bail in relation to the domestic violence offences: Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23. That application was complicated because it also involved an application for appeals bail relating to offences of perjury and perverting the course of justice of which the applicant was convicted on 2 October 2020. (The judgment was restricted but is mentioned in subsequent judgments. It is assumed the restriction was lifted after the completion of the trials.)

• On 25 August 2022, the Supreme Court (Campbell J) refused bail in relation to the domestic violence offences.

• On 10 January 2023, the applicant was granted bail on the domestic violence offences in the District Court (Williams SC DCJ).

• On 31 January 2023, the prosecution made a successful detention application to the Supreme Court (N Adams J) and bail in relation to the domestic violence offences was revoked.

• On 15 February 2023, the applicant was refused bail in relation to the domestic violence offences in the District Court (Williams SC DCJ).

• On 9 March 2023, the Court of Criminal Appeal (Beech-Jones CJ at CL, as his Honour then was, Garling and Yehia JJ) refused an application for bail in relation to the domestic violence offences: Mehajer v Office of the Director of Public Prosecutions [2023] NSWCCA 49.

• On 10 May 2023, the applicant was found guilty of the domestic violence offences.

• On 1 June 2023, the applicant was refused bail in the District Court (Bennett SC DCJ) in relation to the domestic violence offences: R v Mehajer (No 3) [2023] NSWDC 197.

• On 30 June 2023, the applicant was found guilty in relation to the fraud offences and bail was revoked.

• On 24 July 2023, the Supreme Court (Yehia J) refused bail in relation to both sets of offences.

• On 26 July 2023, the applicant was refused bail in the District Court (Bennett SC DCJ) in relation to the fraud offences.

• On 9 May 2024, Bennett SC DCJ imposed an aggregate sentence of 7 years and 9 months with a non-parole period of 3 years and 6 months in relation to both sets of offence: R v Mehajer [2024] NSWDC 240. The sentence was ordered to commence on 19 January 2022 and the non-parole period will expire on 18 July 2025 while the total sentence expires on 18 October 2029.

• On 4 July 2024, the Supreme Court (Sweeney J) refused bail in relation to both sets of offences. [1]

  1. This judgment was not in the material but was referred to in Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172.

• On 28 August 2024, the Court of Criminal Appeal (Fagan, N Adams and Faulkner JJ) refused an application for bail in relation to both sets of offences: Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172.

• On 6 December 2024, the Court of Criminal Appeal (Kirk JA, Rothman and Yehia JJ) refused a further application for bail in relation to both sets of offences: Mehajer v R [2024] NSWCCA 226.

• On 20 December 2024, the applicant sought and was refused leave to re-open the bail proceedings: Mehajer v R (No 2) [2024] NSWCCA 247.

• 21 January 2025 is the date of the document styled “Applicant’s [Release Application] Submissions”.

• 5 February 2025 is the date of the document styled “Supreme Court Bail Application” and a handwritten revision (or addition) to the submissions dated 21 January 2025.

• On 27 February 2025, the applicant “provisionally” filed a notice of appeal and written submissions in relation to the substantive appeal.

• On 6 March 2025, the Registrar listed the present release application for hearing on 26 March 2025.

• On 9 May 2025, the State Parole Authority met and made a “provisional decision to grant parole”. However, the matter was stood over for further consideration at a “Review Hearing” on 12 June 2025. The Authority sought submissions from the Commissioner and indicated it “requires a supplementary Community Corrections Officer’s report for the hearing.”

12. Meanwhile, the substantive appeal has been listed for hearing on 16 July 2025. The most recent exchange of correspondence and submissions – that is, the applicant’s letter of 7 May 2025 and the Director’s email of 19 May 2025 – suggests that Mr Mehajer may apply to vacate the hearing date and the Director will not, or may not, oppose that application subject to obtaining more time to file submissions.

13. The applicant’s aggregate non-parole period will expire on 18 July 2025. Contrary to the applicant’s letter of 7 May 2025, that does not mean that “the applicant will be released to parole on 18 July 2025”. The total sentence will not expire until 18 October 2029 and whether Mr Mehajer is released on or after 18 July 2025 will turn on the decision of the State Parole Authority. However, there is at least a “provisional decision to grant parole” pending the Review Hearing on 12 June 2025.

Section 74 of the Bail Act

14. Section 74 of the Bail Act relevantly provides:

(1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application.

…

(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.

15. The respondent referred to the judgment of Campbell J in R v Fallon [2017] NSWSC 1796[2] where his Honour noted the purpose of s 74 and its context in the Bail Act:

“13. The purpose of s 74 Bail Act is to limit second and subsequent applications for bail to the same court to those which may be supported only by proper grounds. It’s relevant to bear this legislative purpose in mind when one considers that what is being proposed is a third application to this Court, an eighth application overall (if one includes the detention application). This history of repeated release applications is, I think, relevant to my evaluation of the case.

14. Section 74 needs to be interpreted in its context in the Act, and in particular in Part 7 of the Act. Section 71 requires bail applications to be dealt with as soon as reasonably practicable; s 72 makes it mandatory for a court to entertain any release or variation application made by an accused person on the first appearance in substantive proceedings for the offence; s 73 empowers a court to refuse to hear a bail application on other occasions, if satisfied the application is frivolous, vexatious, without substance, or has no reasonable prospects of success; and s 75 provides that all bail applications, including subsequent applications, are to be dealt with as a hearing de novo. Sections 73 and 74, in my view, work together to emphasise the restraint with which a court is to approach subsequent applications made to that court.

15. It is also well to emphasise the word ‘material’ where it appears in the expression ‘material information relevant to the grant of bail’ in s 74(3)(b) and also in s 74(4)(a), for that matter. The additional information sought to be presented will be material if the applicant satisfies the court that the outcome of the previous release application might have been different had the additional information been presented then: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 353, by Mason CJ. This is an objective legal standard involving a mixed question of fact and law. It requires an understanding of the reasons for the refusal of bail and an assessment of whether the additional information might have made a difference to that result.”

2. The respondent’s submissions (MFI 1 at [22]) incorrectly cite this case as [2017] NSWCCA 1796, but it was a judgment of Campbell J sitting as a single Judge. It is not a decision of this Court.

16. Contrast may be made with a case like Crane v Director of Public Prosecutions (NSW) [2021] NSWSC 1341 where the decision in Fallon was distinguished at [7]-[11]. It has to be said that the history of Mr Mehajer’s matter has more in common with the chronology in Fallon. It must also be recognised that the word “material” is not included in s 74(3)(c). Even so, the matters concerning context and purpose to which Campbell J referred are matters of significance in the circumstances of this case and considering the proper application of s 74 to its particular facts and background.

Progress of the appeal and changes to the applicant’s submissions

17. An analysis of the earlier judgments of this Court, particularly the reasons of Yehia J delivered in December 2024 [3] and the decision of the Court (Fagan, N Adams and Faulkner JJ) delivered in August 2024, [4] demonstrates that the respondent was correct in submitting that any changes in the proposed grounds of appeal, or the submissions to be made in support of those grounds, were not “material” for the purpose of s 74(3)(b) of the Bail Act. The grounds of appeal and arguments presented to the Court are, in essence, the same as those ventilated on the previous release applications with some minor variations, additions and subtractions. Putting aside instances where a ground is abandoned or deleted, the changes to the grounds of appeal can properly be described as cosmetic.

    3. Mehajer v R [2024] NSWCCA 226.

    4. Mehajer v Director of Public Prosecutions [2024] NSWCCA 172.

18. Similarly, the fact that the documentation was formally filed at around the time of the hearing of the present release application and again, in slightly different form, a few days after the hearing does not constitute “material information relevant to the grant of bail … that was not presented to the court in the previous application”. That is so despite the fact that those documents had only been filed “provisionally” – or not at all, or in different form – at the time of the earlier applications.

17. The proposed grounds of appeal set out in the reasons of Yehia J in the decision made in December 2024 at [20] – [23] were:

“20. 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.by the evidence.’

21. 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.’

22. The applicant’s proposed grounds for his intended appeal against his conviction for the [fraud] 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.’

23. The applicant’s proposed grounds for his intended appeal against his sentence for the [fraud] offences are the same as for the domestic violence offences, but for Ground 5.”

20. Comparison can be made with the “intended grounds of appeal” reproduced by the Court in its judgment of 28 August 2024:

“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.’

[Fraud] offences

33. The applicant’s proposed grounds for his intended appeal against his conviction for the [fraud] 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 [fraud] offences are the same as for the domestic violence offences, except they do not include the first Ground 5 referred to above.”

21. Despite the similarity in those grounds, Yehia J was “prepared to find there are grounds for a further release application” and provided the following explanation for that conclusion:

“25. 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.

26. 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).

27. 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.”

22. The grounds of appeal notified in the notice of appeal which formed part of Ex 2 in the present application were as follows:

“Grounds of Appeal

[CONVICTION]

NAME OF APPELLANT: Mr. Salim MEHAJER

The appellant relies upon the following grounds of appeal:

1. The appellant’s trial was defective and resulted in a miscarriage of justice by the refusal of an adjournment, as the appellant was prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel;

2. The appellant has available fresh and new evidence relevant to the authenticity of trial exhibit (‘X’) and the Complainant’s credit;

3. The learned trial judge erred in allowing the trial to continue after the severity, extent and the implications of the appellant’s psychopathology became apparent that he could no longer receive a fair trial in the absence of legal representation.

…

Grounds of Appeal

[SENTENCE]

NAME OF APPELLANT: Mr. Salim MEHAJER

The appellant relies upon the following grounds of appeal:

1. The learned sentencing judge erred in the determination of the aggregate non-parole period, and, that the aggregate non parole period is manifestly excessive, taking into account the gravity of the offences, their discrete nature, and the necessity for the aggregate non-parole period to reflect general deterrence and denunciation;

2. There is a striking discrepancy between the custodial conditions the learned sentencing judge had been led to believe the appellant would be subject to and the actual conditions the appellant faced.”

23. The grounds were set out in Ex 4 (the notice of appeal filed on 25 March 2025):

“Grounds of Appeal

[CONVICTION]

NAME OF APPELLANT: Mr. Salim MEHAJER

The appellant relies upon the following grounds of appeal:

1. The appellant’s trial was defective and resulted in a miscarriage of justice by the refusal of an adjournment, as the appellant was prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel;

…

Grounds of Appeal

[SENTENCE]

NAME OF APPELLANT: Mr. Salim MEHAJER

The appellant relies upon the following grounds of appeal:

1. The learned sentencing judge erred in the determination of the aggregate non-parole period, and, that the aggregate non parole period is manifestly excessive, taking into account the gravity of the offences, their discrete nature, and the necessity for the aggregate non-parole period to reflect general deterrence and denunciation;”

24. The applicant filed further amended grounds on 1 April 2025 which are identical to the grounds outlined above at [22]:

“Amended Grounds of Appeal

[CONVICTION]

NAME OF APPELLANT: Mr. Salim MEHAJER

The appellant relies upon the following grounds of appeal against Conviction:

1. The appellant’s trial was defective and resulted in a miscarriage of justice by the refusal of an adjournment, as the appellant was prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel;

2. The appellant has available fresh and new evidence relevant to the authenticity of trial exhibit (‘X’) and the Complainant’s credit;

3. The learned trial judge erred in allowing the trial to continue after the severity, extent and the implications of the appellant’s psychopathology became apparent that he could no longer receive a fair trial in the absence of legal representation.

…

Amended Grounds of Appeal

[SENTENCE]

NAME OF APPELLANT: Mr. Salim MEHAJER

The appellant relies upon the following grounds of appeal against Sentence:

1. The learned sentencing judge erred in the determination of the aggregate non-parole period, and, that the aggregate non parole period is manifestly excessive, taking into account the gravity of the offences, their discrete nature, and the necessity for the aggregate non-parole period to reflect general deterrence and denunciation;

2. There is a striking discrepancy between the custodial conditions the learned sentencing judge had been led to believe the appellant would be subject to and the actual conditions the appellant faced.”

25. The applicant referred to the grounds relied on in the present application as “more settled”, a reference to the decision of Wilson J in Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662 where her Honour said at [16]:

“…the availability of more settled draft grounds of appeal and draft submissions in support does amount to material information relevant to the grant of bail under consideration.”

26. In that case, bail was refused by the trial Judge (Fullerton J) when a bail application was made immediately after sentence was imposed. It was around six months later that the matter came before Wilson J by which time grounds of appeal had been drafted by appellate counsel and draft written submissions were tendered on the bail application. Elsewhere in the judgment (at [9]) her Honour said they were “different draft grounds of appeal to those tendered to [the sentencing Judge]” (my emphasis).

27. Nothing in Mr Mehajer’s extensive submissions on the issues to be ventilated on the appeal under his “more settled” grounds of appeal constitutes material information that was not presented in his earlier applications. Nor do his submissions, the amended grounds, or the fact that he has now formally filed the grounds or the submissions, establish that circumstances relevant to the grant of bail have changed since the earlier applications made to this Court.

The applicant’s father’s heart condition

28. Mr Mehajer also relied on a family or personal matter that he raised shortly after the hearing which, as I understand it, he submitted may satisfy the requirement of the ground in s 74(3)(c), namely that “circumstances relevant to the grant of bail have changed since the previous application” for the purposes of s 74(3)(c). That matter related to his father’s coronary health. This had been referred to in his earlier affidavit by reference to his concerns arising from conversations with his sister.

29. The issue was raised as a matter relevant to s 74 in the applicant’s submissions of 7 April 2025 which purported to be a response to the respondent’s supplementary submissions. However, it appears the relevant document was served on the Director on 30 March 2025. The document is dated 25 March 2025 and indicates that Mohamad Mehajer (the applicant’s father) had an appointment scheduled on Thursday 17 April 2025 for a Coronary Angiogram procedure at Royal Prince Alfred Hospital.

30. The applicant wrote that he has a very strong relationship with his father. He said that, if granted bail, he would live with his parents and “provide [his father] with all the support required”. The applicant acknowledged that both his mother and sister were available to assist but that his mother is “battling with her own health concerns, namely, pneumonia” and that his sister is a full-time university student who also has part-time employment.

31. The respondent, “without diminishing the potential significance of the procedure”, submitted that the document suggested the angiogram was a “day procedure” and that the material, “neither in isolation, nor in combination with any other matter, is sufficient to meet the s 74 Bail Act threshold.” At the time that submission was made, the more recent development concerning the hearings before the State Parole Authority had not occurred.

32. In reply to those submissions, the applicant acknowledged the angiogram was a day procedure but raised the possibility that “complications” may arise and that his sister has told him about the seriousness of the heart condition, a matter referred to in his affidavit of 1 April 2025.

33. The evidence does not establish a relevant change of circumstances for the purpose of s 74 of the Bail Act. While Mr Mehajer’s concern for his father is not doubted, there is nothing to suggest any complications are likely to, or did, arise as a result of the angiogram. Similarly, the history of the heart condition is not known and there is no evidence that circumstances around that condition have changed or deteriorated between the time of the August and December bail decisions and now. Finally, Mr Mehajer acknowledges that both his mother and his sister provide appropriate care to his father.

The provisional decision of the Parole Authority, the imminent expiration of the non-parole period, and the proximity of the hearing of the appeal

34. The applicant’s non-parole period expires on 18 July 2025 and his appeal is listed for hearing two days earlier, on 16 July 2025.

35. The respondent was given the opportunity to respond to the information regarding the developments concerning the applicant’s parole. In conformity with a prosecutor’s duty of fairness, the respondent provided the Court with the information it obtained from the State Parole Authority which, on its face, is positive news for Mr Mehajer.

36. The information provided by the State Parole Authority is that it has made a “provisional decision” to grant parole. However, it has called for submissions from the Commissioner and a report from a Community Corrections Officer. While the Court cannot predict the outcome of the Review Hearing to be conducted on 12 June 2025, one possibility is that the applicant will be granted parole, to take effect at the expiration of the non-parole period or at some later date.

37. In an ordinary bail application, the fact that parole may be granted is a significant circumstance relevant to the grant of bail. That is because the conditions of parole, and requirement for supervision, provide a structure upon an applicant’s release which may mitigate the risk of re-offending and any possible risk or bail concern under ss 17-19 of the Bail Act. Accordingly, it may be arguable that the recent developments concerning parole might overcome the prohibition in s 74, by reference to the ground set out in s 74(3)(c).

38. However, in this case, the applicant has no outstanding charges in relation to which he is on remand with bail refused. It is not an ordinary bail application in the sense to which I referred in the preceding paragraph. What the applicant seeks is what is often described, in lawyers’ shorthand, as “appeals bail”. That is, he asks to be released on bail pending the Court of Criminal Appeal determining whether his conviction or sentence should be quashed, overturned or reduced. If the applicant is granted parole, he will be released whether his appeal has been finalised or not.

39. Accordingly, while the development is a circumstance that has changed since the last release application was heard, it is not a circumstance that would impact on the grant of [appeals] bail. The applicant’s non-parole period, and the date upon which he would first become eligible for parole, was known at the time of previous application(s). In her judgment on the most recent application before this Court, Yehia J noted the applicant’s submission at [45]:

“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.” [5]

5. Mehajer v R [2024] NSWCCA 226 at [45].

Conclusion under s 74 of the Bail Act

40. For the foregoing reasons, I am not satisfied that there are grounds for a further release application and, accordingly, the Court must refuse to entertain the application.

Note and proposed order

41. Nothing in this decision should fetter, influence or interfere in any way with the decision to be made by the State Parole Authority when it conducts its Review Hearing. Because of the conclusion I have reached under s 74 of the Bail Act, it has been unnecessary to undertake any assessment of risk for the purposes of ss 22 or 17-19 of the Bail Act.

42. The order I would make is:

1. Dismiss the further release application pursuant to s 74 of the Bail Act 2013 (NSW).

43. McNAUGHTON J: I agree with Hamill J.

44. RIGG J: I agree with Hamill J.

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Endnotes

Decision last updated: 30 May 2025