Mehajer v Office of the Director of Public Prosecutions

[2023] NSWCCA 49

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

09 March 2023

Date of orders:

09 March 2023

Decision date:

09 March 2023

Before:

Beech-Jones CJ at CL at [1]
Garling J at [2]
Yehia J at [66]

Decision:

Application dismissed

Catchwords:

CRIME — Bail — Appeal bail — where applicant required to show cause why his detention is not justified — where applicant is due to stand trial for the offences in respect of which bail is sought in approximately two weeks’ time — where applicant has indicated an intention that he will apply to vacate the trial date — where the Crown case is a reasonably strong one — where the applicant relies on the difficulties preparing his defence if he remains in custody for the offences in respect of which bail is sought and for unrelated offences for which he also is due to stand trial — where the applicant relies on a need to access a mobile phone and associated SIM card — where the applicant is being held on protection for his own safety — whether the applicant has shown cause — application dismissed

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Criminal Procedure Act 1986

Cases Cited:

Flower v R [2020] NSWCC 64

Mehajer v Director of Public Prosecutions [2022] NSWCCA 23

Mehajer v R [2022] NSWCCA 135

Mehajer v R [2022] NSWCCA 240

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

R v Kugor [2015] NSWCCA 14

Trinh v R [2016] NSWCCA 110

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Salim Mehajer (App)
Office of the Director of Public Prosecutions (Resp)

Representation:

Counsel:
Self-represented (App)
S Traynor (Crown)

Solicitors:
Solicitor for Public Prosecutions (Resp)

File Number(s):

2023/45178

Publication restriction:

Not applicable

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Date of Decision:

31 January 2023

Before:

N Adams J

File Number(s):

2023/45178

JUDGMENT

1. BEECH-JONES CJ at CL: I agree with Garling J.

2. GARLING J: On 31 January 2023, Salim Mehajer (“the applicant”) applied to this Court for release on bail with respect to seven offences involving four counts of common assault contrary to s 61 of the Crimes Act 1900; one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; one count of intimidation with the intention of causing the victim to fear physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007; and one count of intentionally suffocating a victim with recklessness contrary to s 37(1) of the Crimes Act. As well, there are five charges against him for breach of an Apprehended Domestic Violence Order (“ADVO”). These are contained on a Certificate pursuant to s 166 of the Criminal Procedure Act 1986.

3. These offences are alleged to have occurred variously in 2018, 2019 and 2020.

4. The counts involving offences against s 13(1) of the Crimes (Domestic and Personal Violence) Act and s 37(1) of the Crimes Act are both alleged to have been committed whilst the applicant was on bail with respect to other matters. Those offences are serious indictable offences as they are punishable for a term of 5 years or more: s 4 Crimes Act. As a consequence, the applicant is required to show cause why his detention is not justified: ss 16A and 16B(1)(h)(i) Bail Act 2013.

5. At the conclusion of the hearing of the bail application, an order was made dismissing the application. Reasons were reserved. These are my reasons for joining in the order that the application be dismissed.

History relevant to this bail application

6. I will refer to the offences in respect of which bail was sought as “the domestic violence offences”. The domestic violence offences have been the subject of a number of failed applications for bail by the applicant. On 5 February 2021, Ierace J refused to grant bail in respect of a series of charges including the domestic violence offences. In respect of these offences, his Honour was not satisfied that cause had been shown by the applicant.

7. The applicant brought an appeal to the Court of Criminal Appeal in respect of that decision.

8. On 16 February 2022, the Court refused to grant bail: Mehajer v Director of Public Prosecutions [2022] NSWCCA 23.

9. Johnson J (with whom Harrison J and Fagan J agreed) was not satisfied that the applicant had overcome the show cause requirements.

10. The applicant then made a fresh application to the Court of Criminal Appeal under s 74(3) of the Bail Act. That application was heard on 15 June 2022 by a court comprising Leeming JA, Lonergan J and me.

11. The applicant sought bail in respect of three separate sets of charges. The first set of charges related to proceedings in which the applicant had been convicted of two counts of attempting to pervert the course of justice and one count of making a false statement on oath (the “course of justice convictions”). The applicant had been convicted of these offences by Zahra SC DCJ following a judge alone trial in the District Court.

12. The applicant’s appeal to this Court against the course of justice convictions was then pending. Accordingly, the applicant was required to establish that special or exceptional circumstances existed that would justify a decision to grant bail on the course of justice convictions: s 22(1) Bail Act.

13. The applicant also sought bail with respect to the domestic violence offences and, as well, in respect of another group of offences of contravening an ADVO on five separate occasions.

14. For the reasons published on 22 June 2022, see Mehajer v R [2022] NSWCCA 135, the Court of Criminal Appeal dismissed the application.

15. The Court expressed the view that the applicant had failed to establish the requisite special or exceptional circumstances which would warrant a grant of bail in respect of the offences the subject of the course of justice convictions. It did not separately consider, as it was unnecessary so to do, the domestic violence offences which are directly the subject of the present application.

16. On 18 November 2022, the Court of Criminal Appeal (Bell CJ, Gleeson JA and Yehia J) dismissed the applicant’s appeal against the course of justice convictions: Mehajer v R [2022] NSWCCA 240. As a consequence, the applicant is presently serving a sentence of imprisonment. That sentence was one of 3 years and 6 months commencing on 19 October 2020 and expiring on 18 April 2024. A non‑parole period was fixed for that sentence of 2 years and 3 months which expired on 18 January 2023.

17. The State Parole Authority, at its meeting on 18 November 2022, formed a decision not to release the applicant on parole because he had “outstanding charges”.

18. It should also be noted that with respect to the domestic violence offences, the applicant made a further application for bail on 25 August 2022 before Campbell J in the Supreme Court. Campbell J declined to hear the application because he was not satisfied that there were grounds of the kind referred to in s 74(3) of the Bail Act for a further release application.

Current Bail Proceedings

19. On 10 January 2023, the applicant made a bail application with respect to the domestic violence offences to the District Court. M L Williams SC DCJ granted conditional bail. His reasons were expressed quite concisely. M L Williams SC DCJ noted that the applicant asserted that his application for parole would not be considered “… unless bail is granted on these charges …”.

20. On 31 January 2023, the Crown made a detention application pursuant to s 50 of the Bail Act with respect to the domestic violence offences. That application was heard by N Adams J. In thorough reasons delivered orally at the conclusion of the application, her Honour granted the Crown’s application and refused bail. The applicant was then, and remains, in custody by reason of the sentence he is serving on the course of justice convictions.

Other Extant Charges

21. On 27 March 2023, the applicant is due to stand trial in the District Court in Sydney for an estimated period of three weeks for the domestic violence offences.

22. On 13 June 2023, the applicant is due to stand trial in the District Court in Sydney for an estimated period of five days to deal with four counts of making and using a false statutory declaration to obtain a financial advantage. Bail has been granted in respect of these offences.

23. On 7 August 2023, the applicant is due to stand trial in the District Court in Sydney for an estimated period of four weeks for a series of offences relating to falsely nominating various drivers in statutory declarations with respect to traffic offences committed by the applicant. Bail has been granted in respect of these offences.

24. On 9 October 2023, the applicant is due to stand trial in the District Court in Sydney for an estimated period of three weeks with respect to two charges: first, of doing an act with an intention to pervert the course of justice, and, secondly, concurring with a false statement with intent to cause financial disadvantage. In short, it is alleged that the applicant orchestrated a car collision to delay Local Court proceedings and concurred in the submission of a false insurance claim in relation to the damaged vehicle. Bail has been granted in respect of these matters.

Nature of this Application

25. It is appropriate to note at the outset that the hearing of this application by this Court is not in the nature of an appeal. Rather, it is necessary for the Court to hear and determine the application afresh: R v Kugor [2015] NSWCCA 14; Obeid v R (No 2) [2016] NSWCCA 321.

26. The Court is entitled to have regard to the judgment and findings made by N Adams J in the application which she decided: Trinh v R [2016] NSWCCA 110 at [28], [40] and [44]; Obeid v R (No 2) at [6]; Flower v R [2020] NSWCCA 64 at [6].

27. It follows that the applicant has to establish in this Court that he has shown cause why his detention is not justified and that any release on bail would not involve unacceptable risk.

28. The applicant advances a number of submissions in support of his application for release on bail. Seemingly, the matters advanced are intended by the applicant to address the show cause requirement and the unacceptable risk requirement.

29. The applicant advances these points:

1. it is necessary for him to be on bail in order to conduct his defence on the domestic violence offences. In particular, he asserts that much of his case at trial for these offences “… would rest on electronic evidence which he cannot access unless he is released from custody”;

2. it is necessary for him to be released from custody, so that he can replace his “SIM-card” which was in his mobile phone provided to the complainant before he went into custody, which cannot be replaced by anybody but himself; and

3. the applicant would be unable to defend himself properly on his other matters which have been outlined in [22]-[24] above unless he is on bail.

30. In his second (but unsworn) affidavit, dated 17 February 2023, the applicant expands on these points by giving further explanation. He informs the Court that on 27 November 2020, when he was imprisoned for the offences the subject of the course of justice convictions, he handed to the complainant in the domestic violence offences his mobile phone which included the SIM card, his wallet, car keys and other personal items.

31. In late December 2020, his relationship with the complainant came to an end. He has since that time made a number of attempts via lawyers to contact the complainant and have his SIM card, mobile phone and other items returned to him or someone whom he had nominated such as his lawyer. He says that his phone and SIM card have not been returned to him and that it was only recently, in February 2023, that he was informed that the complainant no longer has the items, and that she had handed the items to another person by the name Yasser Nasser. He was given this information after police made enquiries at the request of the Office of the Director of Public Prosecutions, responding to a request by the applicant.

32. The complainant seems to say that Mr Nasser was formerly a business associate of the applicant, although she says that there had since been a falling out between them. The applicant does not have contact with Mr Nasser.

33. The applicant says that access to his mobile phone and SIM card is “critical” for two reasons, namely:

1. it contains contact details to enable him to “reach out” to his network “mainly in order to raise legal fees and funding to save my family home from repossession”; and

2. his SIM card is connected to his phone number. Without access to his phone and SIM card to receive security codes, he is unable to reset his passwords for his emails/server and thereby to access various accounts, which he does not identify.

34. The applicant then lists various attempts which he has made from custody to obtain his SIM card and phone, prior to receiving the information referred to at [31] above.

35. The applicant goes on to add this remark in his unsworn affidavit:

“… even if my SIM card would be returned now (after 2 years and three months) – the phone number linked to the SIM-card would most likely be disconnected – making it necessary to seek a replacement SIM card.”

36. He points out that on information which he has received from an associate, the service provider for his mobile phone, Optus, would require him to present in person to obtain a replacement SIM card.

37. The applicant also submits that if he is not granted bail “… he will be left defenceless”, because much of his case in defence of the domestic violence offences would “… rest on electronic evidence…” which the applicant cannot access from custody. The nature or content of that evidence is not otherwise specified.

Crown Submissions

38. The Crown draws attention to the obligation of the applicant to show cause why his detention until the commencement of his trial on the domestic violence offences on 27 March 2023 is not justified. The Crown submits that the combination of matters relied upon is insufficient to amount to showing cause why the applicant’s detention is not justified.

39. The Crown submits that even if the applicant has shown cause why his detention is not justified, the Court would find that the applicant poses an unacceptable risk if released which could not be ameliorated by the imposition of conditions, as N Adams J did.

Discernment

40. The first matter to which regard ought be had in considering whether the applicant has shown cause, is the time period during which he would remain in custody until he stands his trial, which is a little over two weeks as his trial commences on 27 March 2023.

41. In his affidavit of 10 January 2023, the applicant says that he had spoken to a solicitor “… with a view to vacating this trial date to a point in time after June 2023”. The applicant indicated that he was hoping to raise private funding by that time.

42. The Crown informs the Court that after the decision of N Adams J, the applicant appeared in the District Court for a mention of his upcoming trial. It is not clear whether an application to vacate the trial date was made. If it was, the Court did not vacate the trial date.

43. The domestic violence trial is to be mentioned next on 13 March 2023. It seems that the applicant has applied to Legal Aid for representation at this trial. As to whether the trial will go ahead, much will no doubt depend upon the status of the applicant’s Legal Aid grant.

44. It will be a matter for the District Court, in considering the issue of whether the trial should be vacated, to take into account that the applicant is facing a number of other trials during the course of the year and that any vacation of this trial, and any refixing of it would need to occur at a time which did not disrupt those fixtures. The past history of the fixing of the domestic violence offences for trial may well also be relevant.

45. Whilst it is possible that the applicant’s trial may be vacated, this Court on the material before it should proceed on the basis that the trial will be proceeding as presently scheduled.

46. Accordingly, the relevant period in detention which falls for consideration is that of a further two weeks.

Strength of the Crown Case

47. The domestic violence offences are all said to have occurred between the applicant and a single victim, who was then his domestic partner. It is not said that the actual offending conduct was witnessed by any person other than the applicant and the complainant. However, that does not mean that there is no corroboration for the Crown case against the applicant.

48. In respect of two of the offences, the complainant made contemporaneous complaints to friends about them. In particular, with respect to the offence of intentionally suffocating the victim with recklessness contrary to s 37(1) of the Crimes Act, immediately after the conduct the subject of the offence and as soon as it was possible, the complainant left the house she shared with the applicant, taking a bag with her, and made a lengthy phone call to one of her friends. She also sent Facebook messages to her friend as to what had occurred.

49. As well, there are text messages, screen shots of which have been included in the police brief, which are reasonably contemporaneous and are consistent with the complainant’s account.

50. The complainant sustained injuries which have been photographed and which corroborate her account of what occurred. As well, the complainant attended a medical centre in Bankstown four days after the last incident involving the suffocation episode and gave a history consistent with her complaint.

51. I do not regard the Crown case as weak. On the contrary, like N Adams J, I regard the Crown case as a reasonably strong one.

52. It is not without significance in the assessment of the strength of the Crown case that, after the complainant went to the police and the applicant was charged, a provisional ADVO was taken out. It was read, explained and served on the applicant in person on 23 December 2020.

53. A few days later, on 27 December 2020, the applicant’s sister sent a text message to the complainant informing her that the applicant said that “he never did anything wrong”. She informed the complainant that there was no need for any ADVO and that the applicant wanted her to withdraw it.

54. In a further telephone call on 27 December 2020, the applicant said to his sister, this:

“… but when I’m at good terms with her. I never do anything wrong. Never. But whatever I did, whatever I did … I swear to God, I did out of spite.”

55. This material confirms my assessment that the Crown’s case is a reasonably strong one.

Other Matters

56. First, to the extent that the applicant relies upon the need to obtain details of his contacts or network from his SIM card and mobile phone, that is an insufficient basis to show cause. No doubt the people he wishes to contact to seek financial assistance are known to him. They may also be known to members of his family. There is no suggestion that the applicant is unable to identify those people or to contact them by means of having contact made by third parties. The mere absence of details in the contact list on his telephone or SIM card may be an inconvenience, but I am not satisfied that it would constitute a bar to any contact. As well, I look with some scepticism upon such a submission given that, as it now appears, the applicant is seeking Legal Aid to fund a lawyer to appear for him at the trial of the domestic violence offences.

57. Secondly, the applicant submitted that he wished to access his contacts list so as to enable him to obtain financial assistance with respect to entering into arrangements with the mortgagee of his home. That purpose is not one which in my view has any greater strength than the purpose which I have just discussed, and it is more remote from dealing with the charges that are presently before the Court. I would not regard this as a sufficient or weighty factor to ground the show cause requirement for a grant of bail.

56. Thirdly, with respect to the SIM card, the applicant says that it is necessary for him to have access to it as a tool for the purpose of multi-factor authentication so that he can access his emails or change passwords for that purpose or to access other services. It seems to me that this reason has no bearing on the application for bail. The applicant does not assert that access to email is essential in putting together a defence of the charges for which he is seeking bail.

57. There is nothing about the applicant’s need for his mobile telephone or SIM card which supports a grant of bail.

58. In any event, it is clear that the SIM card and mobile phone are not in the possession of the investigating police or the complainant but are in possession of a third party. Whether the applicant knows or is able to contact that third party is not covered in the evidence and material before this Court.

59. The applicant seemingly points to the difficulties of his confinement, and difficulties in preparing his defence if he remains in custody. The defence of these charges largely relates to a description of what happened between him and the complainant. As earlier indicated, that will be a matter which can be covered adequately in evidence at the trial. The applicant has already given an account of these events to investigating police. His defence is that none of what the complainant says happened did in fact happen. This is not a defence which requires access to extensive documents or electronic materials, or the use of a computer.

60. This is an insufficient reason to grant bail.

61. To the extent that the applicant’s custodial conditions are harsh, that is a matter to be taken into account. The reason the custodial conditions are harsh is that the applicant is being held on protection for his own safety. Whilst I accept that the conditions are more difficult for the applicant than for many other inmates, particularly those not being held on protection, this is not a reason, having regard to the short length of time until his trial takes place for the applicant to show cause why his detention is not justified.

Conclusion

64. In my view, the applicant has not shown cause as to why his detention is not justified. In short, the Crown case is a reasonably strong one and the period of his detention is very short and will occur concurrently with serving an existing sentence of imprisonment. As well, the applicant advanced no satisfactory reason as to why he needs to be released from custody to adequately prepare his defence of the domestic violence charges nor the other charges he faces.

Orders

65. For these reasons, I agreed in the orders pronounced by the Court that the application be dismissed.

66. YEHIA J: On 9 March 2023, I agreed with the orders that the application be dismissed. I also agree with the reasons provided by Garling J.

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Decision last updated: 17 March 2023