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
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
KIRK JA: I agree with Yehia J.
ROTHMAN J: I agree with the orders proposed by Yehia J and her Honour’s reasons for those orders.
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”).
On 9 May 2024, the applicant was sentenced by Bennett SC DCJ for both sets of offences. The applicant most recently filed a Notice…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.