Mehajer v The King

Case [2024] NSWCCA 226


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mehajer v R [2024] NSWCCA 226
Hearing dates: 23 October 2024
Date of orders: 23 October 2024
Decision date: 06 December 2024
Before: Kirk JA at [1];
Rothman J at [2];
Yehia J at [3]
Decision:

(1) The application for bail is dismissed.

Catchwords:

CRIME – Bail – bail pending appeal – where previous appeal bail applications refused by Court of Criminal Appeal – Bail Act 2013 (NSW) – ss 22 and 74 – whether change in circumstances since previous application – unrepresented applicant – strength of the proposed grounds of appeal – capacity to prepare appeal in custody – conditions in custody – whether the applicant has established special or exceptional circumstances – application dismissed

Legislation Cited:

Bail Act 2013 (NSW), ss 16A(1), 17, 22, 22B, 32(1), 61, 74(3)

Crimes (Administration of Sentences) Act 1999 (NSW), s 78A

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

Cases Cited:

Adanguidi v R [2024] NSWCCA 82

Ali v The Queen [2005] HCA 8

Decision Restricted [2023] NSWSC 36

El Khouli v R [2019] NSWCCA 146

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

Fantakis v Director of Public Prosecutions [2021] NSWCCA 271

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

Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294

Luo v R [2024] NSWCCA 58

Mehajer v Director of Public Prosecutions [2024] NSWCCA 172

Mehajer v R [2023] NSWCCA 101

Miller v R [2022] NSWCCA 255

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

Park v R [2022] NSWCCA 263

R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356

R v Mehajer [2024] NSWDC 240

R v Williams [2020] NSWCCA 348

Ramsey v R [2022] NSWCCA 197

Robinson v R (1991) 65 ALJR 519

Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102

Sayer-Jones v R [2024] NSWCCA 183

SC v R [2023] NSWCCA 60

Tiriaki v R [2023] NSWCCA 73

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Trevascus v R [2020] NSWCCA 323

WR v Director of Public Prosecutions (NSW) [2023] NSWCCA 38

Xie v R [2021] NSWCCA 1

Category:Principal judgment
Parties: Salim Mehajer (Applicant)
Rex (Respondent)
Representation:

Counsel:
S Mehajer (Self-represented)
Office of the Director of Public Prosecutions (Respondent)

Solicitors:
S Mehajer (Self-represented)
P Hogan (Respondent)
File Number(s): 2024/00333241

JUDGMENT

  1. KIRK JA: I agree with Yehia J.

  2. ROTHMAN J: I agree with the orders proposed by Yehia J and her Honour’s reasons for those orders.

  3. YEHIA J: The applicant was found guilty of two groups of offences following two separate trials in the District Court. The first trial related to domestic violence offences committed against the applicant’s then partner (“the domestic violence offences”). The second trial related to the creation of false documents and their use (“the false documents offences”).

  4. On 9 May 2024, the applicant was sentenced by Bennett SC DCJ for both sets of offences. The applicant most recently filed a Notice…

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Details
AGLC
Mehajer v The King [2024] NSWCCA 226
Case
[2024] NSWCCA 226
Decision Date

CaseChat Overview and Summary

The applicant, Mehajer, sought bail pending an appeal against his conviction and sentence. The appeal was to be heard in the Court of Criminal Appeal in New South Wales. The primary concern of the court was whether there had been a change in circumstances since the previous bail applications had been refused, warranting a reconsideration of the bail application. The applicant was unrepresented and relied on proposed grounds of appeal that the trial judge had erred in admitting certain evidence and that the sentence was manifestly excessive. The court had to determine if these grounds were strong enough to merit a bail pending appeal and whether the applicant could prepare the appeal in custody.

The court assessed the proposed grounds of appeal and concluded that they did not establish a significant likelihood of success on appeal. It found that the trial judge's decision to admit the evidence was not manifestly erroneous, and the sentence was within the range of appropriate penalties for the offence. The court also considered the applicant's capacity to prepare the appeal in custody and found that the conditions of custody did not prevent him from adequately preparing the appeal. The applicant had not demonstrated special or exceptional circumstances that would warrant a departure from the usual approach to bail pending appeal. The court held that there had been no change in circumstances that would warrant a reconsideration of the bail application.

The application for bail pending appeal was dismissed. The court reiterated that bail pending appeal is not a matter of right and that the applicant must demonstrate exceptional circumstances to succeed. The court found that the applicant had not met this burden. The applicant was to remain in custody pending the outcome of the appeal. The court's decision emphasised the high threshold for granting bail pending appeal, particularly where the applicant is unrepresented and the proposed grounds of appeal are not strong.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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