Mehajer v The King

[2023] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mehajer v R [2023] NSWCCA 101

Hearing dates:

17 April 2023

Date of orders:

17 April 2023

Decision date:

17 April 2023

Before:

Davies J; Ierace J; Cavanagh J

Decision:

Leave to appeal is refused.

Catchwords:

APPEALS — application for leave to appeal – appeal against exercise of discretion – where trial judge refused an application to stay proceedings – whether applicant is indigent – whether applicant is incapable of conducting his trial as a self-represented person

Legislation Cited:

Crimes Act 1900 (NSW), ss 37(1), 59(1), 61

Criminal Appeal Act 1912 (NSW), s 5F

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Legal Aid Commission Act 1979 (NSW), ss 25(4)(l), 60

Cases Cited:

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

House v The King (1936) 55 CLR 499; [1936] HCA 40

R v BK (2000) 110 A Crim R 298

R v Cranston [2020] NSWSC 469

R v Cranston (No 8) [2021] NSWSC 9

R v Cox [1999] NSWCCA 229

R v Macdonald (No 4) [2016] NSWSC 486

R v Mehajer [2018] NSWSC 1687

Category:

Principal judgment

Parties:

Salim Mehajer (Applicant)
Crown (Respondent)

Representation:

Counsel:
Mr S Mehajer (Applicant)
Mr G Newton SC with Mr K Gilson (Respondent)

Solicitors:
Mr S Mehajer (Applicant)
NSW Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2021/16899

Publication restriction:

Non-publication order over the identity of the complainant in the trial.

Non-publication order in relation to the hearing of the application to appeal and the orders made therein until the conclusion of the criminal proceedings.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 April 2023

Before:

Bennett SC DCJ

File Number(s):

2020/369490 and 2021/16899

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from an interlocutory decision of the Judge conducting his trial in the District Court, Bennett SC DCJ (‘the trial judge’). The applicant was facing a number of charges relating to domestic violence against his former partner.

The trial judge rejected the applicant’s application for a temporary stay of the proceedings on the grounds that he was indigent and not capable of conducting the trial as a self-represented person.

The applicant sought leave to appeal on four grounds:

1. the trial judge erred in finding that the applicant failed to establish that he was indigent;

2. the trial judge erred in the exercise of his discretion in refusing an application for a temporary stay;

3. the trial judge erred by placing insufficient weight on the medical evidence and determining that the applicant was competent and capable to run his own trial unrepresented; and

4. the trial judge erred by not staying the proceedings until such time as the Officer in Charge had produced a download (Cellebrite) of the applicant’s phone(s).

The Court (per Davies, Ierace and Cavanagh JJ) refused leave to appeal.

Held:

Grounds 1 and 2

At [60]-[64], the Court observed that, on an application for a temporary stay of proceedings by a self-represented person, it is necessary for the applicant to establish: (1) that they are indigent; and (2) through no fault of their own, they are unable to obtain legal representation.

In those circumstances, except in exceptional circumstances, a trial should be adjourned so as to avoid the possibility of an unfair trial (see Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, per Mason CJ and McHugh J at [40]).

The applicant bears the onus of proving, on the balance of probabilities, that he is indigent (R v Cox [1999] NSWCCA 229, per Sperling J at [8]. See also R v Cranston [2020] NSWSC 469).

At [65], the Court noted that one factor which might lead to a doubt or cause a Court to not be satisfied that the accused person is indigent is evidence that the accused has not been open, transparent and forthcoming about their financial circumstances (referring to R v Cox at [8]; Cranston at [11]; Macdonald (No 4) at [104] and [111]).

It was open to the trial judge to not be satisfied that the applicant had established that he was indigent. The Court found that the trial judge was entitled to reject the applicant’s submission that he must be taken to be indigent because he was bankrupt and in custody (at [112]).

Judgment

1. THE COURT: This appeal comes before the Court on an urgent basis, pursuant to an application for leave to appeal filed by the applicant on 11 April 2023 by Mr Salim Mehajer (‘the applicant’). The applicant seeks to appeal against a decision of Bennett SC DCJ (‘the trial judge’) refusing the applicant’s application for a temporary stay of the trial proceedings on the ground that he is indigent and not capable of conducting the trial as a self-represented person.

2. The applicant appeared by AVL, as he remains in custody. He was not legally represented.

3. The applicant is facing a number of charges relating to domestic violence against his former partner (‘the complainant’).

4. The applicant is also facing a number of other charges and trials in the District Court at Sydney, including:

1. a trial commencing on 13 June 2023 relating to the alleged use of a false statutory declaration and forged signature;

2. a trial commencing on 7 August 2023 whereby the applicant allegedly falsely nominated drivers in respect of driving offences; and

3. a trial commencing on 9 October 2023 in relation to the alleged orchestration of a car accident to delay Local Court proceedings and the making of a false insurance claim.

5. This appeal only relates to the trial for alleged domestic violence offences, which is due to recommence in the District Court on 18 April 2023.

6. Having refused the application for a stay of the proceedings in the Court below, the trial judge commenced the trial on 12 April 2023. The jury has been empanelled. However, the further hearing of the trial has been adjourned until Tuesday, 18 April 2023. The jury has been instructed to return on that date.

7. After hearing the present application on an urgent basis, the Court delivered its decision, being that leave to appeal was refused.

8. The Court indicated that it would provide reasons as soon as possible. These are the reasons.

Grounds of appeal

9. The applicant relies on four grounds of appeal, being:

1. the trial judge erred in finding that the applicant failed to establish that he was indigent;

2. the trial judge erred in the exercise of his discretion in refusing an application for a temporary stay;

3. the trial judge erred by placing insufficient weight on the medical evidence and determining that the applicant was competent and capable to run his own trial unrepresented; and

4. the trial judge erred by not staying the proceedings until such time as the Officer in Charge had produced a download (Cellebrite) of the applicant’s phone(s).

10. Further, the applicant seeks to rely on (said to be) fresh evidence, being:

1. a letter from his trustee in bankruptcy; and

2. a letter from the Legal Aid Commission (‘LAC’) dated 14 April 2023.

11. The Crown did not object to the Court receiving the fresh evidence but submitted that it was inadmissible on an appeal such as this.

12. The applicant seeks the following orders:

1. stay the trial pending the outcome of the appeal;

2. grant the applicant leave to appeal;

3. set aside the order of Bennett SC DCJ, being an order that the trial be vacated/stayed; and

4. grant the applicant bail.

Basis of appeal

13. As this is an appeal from an interlocutory decision of the trial judge, the applicant is required to seek leave to appeal (see s 5F of the Criminal Appeal Act 1912 (NSW)). Further, as the decision of the trial judge must be viewed as discretionary, the principles set out in House v The King ^[1] apply.

    1. (1936) 55 CLR 499; [1936] HCA 40.

Background

14. The applicant has been in custody since 27 November 2020, having been convicted of offences including swear and use a false affidavit with intent to pervert the course of justice, make false statement under oath and provide false information with intent to pervert the course of justice.

15. On 21 January 2021, whilst he was in custody, the applicant was charged with the offences which give rise to the current proceedings. The offences are:

1. four counts of assault (of the complainant) contrary to s 61 of the Crimes Act 1900 (NSW) (‘Crimes Act’), said to have taken place between 1 April 2018 and 30 April 2018, and also between 1 June 2019 and 21 June 2019;

2. one count of intimidation with the intention of causing fear, physical and mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW);

3. one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; and

4. one count of intentionally suffocate a person (the complainant) so as to render her unconscious, insensible or incapable of resistance, being reckless as to causing that result, contrary to s 37(1) of the Crimes Act.

16. Upon arraignment on 10 September 2021, the applicant pleaded not guilty. The matter was listed for trial on 6 June 2022.

17. On 27 May 2022, the trial was vacated on the application of the applicant. At that time, the applicant was self-represented, as his earlier grant of legal aid had been terminated. The Crown was ready to proceed.

18. A new hearing date of 27 March 2023 was set.

19. When the matter came before the Court (Huggett DCJ) on 15 March 2023, the applicant made an application to vacate the trial date, but he later withdrew that application.

20. On 20 March 2023, the applicant filed a notice of motion seeking a temporary stay of the proceedings on the grounds that he was indigent and not capable of conducting the trial as a self-represented person.

21. The matter came on for trial before the trial judge (Bennett SC DCJ) on 27 March 2023. His Honour heard the application and, on 5 April 2023, delivered a brief judgment refusing the application. The trial was adjourned to recommence on 12 April 2023. His Honour has subsequently provided his full judgment outlining that decision.

22. On 12 April 2023, the trial recommenced and a jury was empanelled. However, as the applicant had filed this application for leave to appeal, his Honour stood the matter over and the trial is now due to resume on 18 April 2023.

The applicant’s circumstances

23. The applicant has been in custody since 27 November 2020. Having regard to the sentence imposed by the late Judge Zahra SC, in respect of his earlier conviction, the applicant was due for parole on 18 January 2023 but parole was refused.

24. The applicant is an undischarged bankrupt. On 20 March 2018, Paul Gerard Weston was appointed as trustee in bankruptcy pursuant to a creditor’s petition filed by a development company. Mr Weston has prepared three reports to creditors dated 25 May 2018, 15 October 2018 and 31 May 2021. The applicant filed a statement of affairs on 3 May 2018.

25. Mr Weston gave evidence in the District Court on the application the subject of this appeal. His evidence is referred to in the judgment.

26. The Report to Creditors of 31 May 2021 lists a deficit of assets and liabilities of $25,547,454. The assets include a property valued at $3.9 million. Secured and unsecured creditors amount to $29,615,384.

27. The applicant was previously the principal of a number of companies which appear to have been involved in property development. A major creditor is the Australian Taxation Office.

28. In that same report of 31 May 2021, the trustee stated that the applicant had been uncooperative in dealing with the trustee, which had resulted in a significant blowout in costs associated with the administration of the estate. The trustee sought funding in respect of further investigations.

29. Having regard to that third report to creditors, the trustee appears to have been investigating a number of corporate structures associated with the applicant or his family members.

30. Both of the applicant’s parents were previously rendered bankrupt and are now pensioners. He says that his six sisters similarly now have no property or income.

31. The applicant says that:

1. he remains in custody;

2. he has no income;

3. his affairs are in the hands of the trustee and there is a significant deficit of liabilities over assets; and

4. he has no means of obtaining any financial assistance so as to obtain legal representation.

32. The applicant also says that he is incapable of conducting his own defence, particularly having regard to the medical evidence upon which he relies.

33. Some of the medical reports he relies upon have been obtained for prior purposes, such as defending his earlier criminal proceedings and a previous bail application.

34. In a report dated 9 September 2020 (addressed to the applicant’s former solicitors, Mitry Lawyers), Dr Anthony Henderson, a consultant forensic psychiatrist, diagnosed the applicant with bipolar disorder. Dr Henderson opined that the applicant’s mental illness could account for the erroneous or poorly chosen words and misleading information provided in evidence in his earlier trial. This is presumably intended to provide some excuse for the conduct the subject of those charges, of which the applicant has already been convicted.

35. In a report dated 12 May 2022, Ms Anne-Marie De Santa Brigida, a counsellor and psychologist who provided counselling to the applicant on a number of occasions between August 2019 and November 2020, offered a similar opinion. She also opined that the applicant was not capable of running his own trial, particularly when he was not appropriately medicated and treated.

36. On 8 November 2022, Dr John Albert Roberts, psychiatrist, offered an opinion based on an assessment he made whilst the applicant was in custody on 14 March 2022 (presumably via Zoom). Dr Roberts opined that the implications of the applicant’s psychopathology were substantial and of such severity that he could not be said to have the capacity to represent himself.

37. There is also a letter from Justice Health dated 30 September 2022 in response to an enquiry from the applicant. In that letter, Justice Health refers to a review by a practitioner Dr MacDonald on 2 February 2022. Dr MacDonald stated that she had observed no evidence of mental illness during her assessment of the applicant. That is, based on the applicant’s presentation, he was not suffering from acute symptoms of bipolar, albeit Dr MacDonald did not make any positive statement that the applicant did not have an underlying diagnosis of bipolar disorder.

38. It is worth noting at this stage that the applicant asserts error on the part of the trial judge in the consideration of the medical evidence, in part because the trial judge had regard to medical reports which were not in evidence, being the reports of Dr Roberts and Dr Henderson. That was conceded by the Crown, although we are not sure why it was raised by the applicant, as the two reports tend to assist his case rather than detract from it. No prejudice or miscarriage of justice could arise from the trial judge’s consideration of evidence which was favourable to the applicant.

Dealings with the Legal Aid Commission (‘LAC’)

39. The original trial date of 27 May 2022 was vacated so that the applicant could further pursue his application for legal aid. There appears to have been some delay or hiatus in either pursuing the application or in LAC’s response.

40. On 2 February 2023, LAC wrote to the applicant indicating that it would reconsider his application upon the provision of further information. LAC referred to a bail application in which Counsel and solicitors had been retained by the applicant, and the fact that his parents had provided $200,000 surety for his recent bail application.

41. LAC sought copies of all receipts of Counsel and documentation relating to the $200,000 surety.

42. On 15 February 2023, the applicant’s sister (Zenah Osman) responded to LAC’s request, stating that:

1. the applicant had no source of income;

2. he did not have access to bank statements or bank accounts;

3. a tax invoice was enclosed from the applicant’s prior barrister, which Ms Osman said remained unpaid;

4. the solicitor had not been paid and had agreed to be paid at a later date. There were no invoices from that solicitor;

5. Ms Osman had raised funds for the barrister but she no longer had any funding; and

6. the $200,000 surety in relation to the applicant’s bail application was from a third party by way of caveat only. Further, the person who was prepared to raise the third party surety was overseas.

43. In November 2021, the applicant’s grant of legal aid was terminated.

44. Then on 2 March 2023, the Legal Aid Review Committee (‘LARC’) further considered the applicant’s position and again declined to provide legal aid. It specified that, in accordance with s 60 of the Legal Aid Commission Act 1979 (NSW), its decision was final.

The judgment

45. The trial judge dealt with two applications. The first application was for the trial judge to recuse himself from hearing the application to stay the proceedings. The trial judge refused that application and there is no appeal from that decision.

46. The second application was for the stay of proceedings. As identified by the trial judge, the applicant submitted that he required a stay so that he may arrange for Counsel to represent him in the trial. He sought a stay on the basis that:

1. he was indigent;

2. he had been unfairly denied legal aid which he was confident would be provided if given more time to persuade LAC as such; and

3. he was not competent to conduct a trial without the benefit of appropriately qualified legal representation. He referred to his impaired mental health.

47. As his Honour sets out, significant evidence was adduced on the application, including:

1. evidence as to the circumstances of the alleged offending, including statements of police officers and the complainant and bundles of screenshots and text messages;

2. correspondence between the applicant and LAC and other persons, as well as material produced by LAC under a subpoena for production;

3. documents in the form of affidavits and annexures prepared by the applicant on 27 March 2023, 30 March 2023 and 31 March 2023;

4. material from the trustee in bankruptcy, Mr Weston; and

5. medical evidence, including material produced by Justice Health.

48. Oral evidence was adduced, including from the Officer in Charge of the police investigation, the trustee (Mr Weston) and the applicant.

49. It is clear from the judgment that his Honour paid due regard to all of this evidence.

50. Having considered the relevant principles, his Honour noted that it was apparent that LAC and the trustee in bankruptcy were not satisfied that the applicant had been completely and entirely accurate or honest in the material provided to them. His Honour said that the question which arose was whether, in those circumstances, the applicant had satisfied the burden of proof upon him to show the Court that he was indigent and without the necessary resources to secure legal representation.

51. Ultimately, his Honour was not satisfied that the applicant had discharged that burden.

52. His Honour then said that, lest he be wrong in that view, he would consider whether the applicant was competent and capable to conduct his own trial. His Honour had no doubt that he was.

53. His Honour considered the medical evidence, as raised. His Honour acknowledged that it would be necessary for the applicant to cross-examine the complainant due to the nature of the offences but that he would receive assistance from the Court in doing so. For example, the cross-examination could be conducted by a court-provided intermediary. His Honour noted that he (his Honour) had conducted a number of criminal trials in which litigants had been unrepresented. His Honour was confident in his ability to ensure that the applicant would receive a fair trial.

54. Further, his Honour noted the Crown’s concession that it may not be appropriate for the Crown Prosecutor to address the jury and he agreed with that. He observed that this was not a complex case, having regard to the Crown case statement.

48. The application for a stay of the trial was dismissed.

The appeal

56. On appeal, the applicant provided a 61-page handwritten document which includes the grounds of appeal, the orders sought, a chronology, his submissions and further submissions in respect of the bail application which the applicant intends to make, should his appeal be successful. He also relied upon a number of other documents received in the days prior to the appeal, including:

1. a handwritten letter to the Court dated 17 April 2013;

2. a handwritten letter to the Court of Criminal Appeal Registrar; and

3. a number of other emails, including emails sent by the applicant’s sister, Ms Osman, on 16 April 2023.

57. The Crown prepared a court book, which included all of the relevant documentation. The Court was also assisted by written and oral submissions from the Crown.

The principles to be applied

58. There is no dispute as to the legal principles which apply to an application such as that made in the Court below. The trial judge referred to those principles and the applicant does not dispute them.

59. Integral to the conduct of criminal proceedings is that the applicant is entitled to a fair trial. The absence of legal representation may, in some circumstances, lead to a risk that an accused person facing serious criminal charges is not afforded a fair trial. This may be because the accused would be incapable of properly defending himself.

60. In Dietrich v The Queen,^[2] Mason CJ and McHugh J stated at [40]:

“In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of a lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.”

2. (1992) 177 CLR 292; [1992] HCA 57.

61. On an application such as that pursued by the applicant, it is thus necessary for the applicant to establish that:

1. he is indigent; and

2. through no fault of his own, he is unable to obtain legal representation.

62. In those circumstances, except in exceptional circumstances, the trial should be adjourned so as to avoid the possibility of an unfair trial.

63. The applicant bears the onus of proving, on the balance of probabilities, that he is indigent. In R v Cox [1999] NSWCCA 229 (in which a similar application and appeal was considered by this Court) the Court, per Sperling J, observed at [8]:

“The appellant bore the onus of establishing that he was indigent as a necessary condition for entitlement to the relief which he sought: Cinelli’s (1994) 181 CLR 309 at 328.”^[3]

3. See also R v BK (2000) 110 A Crim R 298; [2000] NSWCCA 4; R v Macdonald (No 4) [2016] NSWSC 486 (‘Macdonald (No 4)’); R v Cranston [2020] NSWSC 469.

64. The Court does not merely assume that a person is unable to obtain or afford legal representation because he appears unrepresented.

65. In many cases, the evidence of an accused person who says he is indigent may be clear and compelling or there may be no challenge to that essential proposition. However, one factor which might lead to a doubt or for a Court to not be satisfied that the accused person is indigent is evidence that the accused has not been open, transparent and forthcoming about their financial circumstances (see R v Cox at [8]; Cranston at [11]; Macdonald (No 4) at [104] and [111]).

66. It is a matter for the trial judge to assess all of the evidence on the application and then make a finding as to whether the accused person is indigent at the time of the application. Such a finding is a finding of fact; that is, a finding that because of the applicant’s financial circumstances, he is unable to afford legal representation. If the Court does not accept that fundamental assertion of the applicant, then the application for a stay on the basis that the applicant is indigent is bound to fail.

67. There may be other grounds for an adjournment or even a stay but it is important to observe that the application which is the subject of this appeal was pursued on the basis that the applicant was indigent.

Grounds 1 and 2

The applicant’s submissions

68. Success on Ground 1 is critical to the appeal as the application was based on the assertion that the applicant is indigent.

69. The applicant’s submissions were, to a large extent, well-written and appropriate. He provided some further short oral submissions and answered some questions from the Court during the hearing.

70. In his motion of 20 March 2023, the applicant sought an order that:

“In the interest of justice, the Applicant seeks an order that proceedings in matter 2021/16899 and 2020/369490 be [temporarily] stayed until such time that the court sees fit and appropriate, or alternatively, for a period of six (6) months for the reasons set in the Applicant’s 20 March 2023 affidavit.”

71. For the purposes of the application which the applicant pursued at the commencement of the trial, he relied upon a number of affidavits prepared by him, being affidavits of 27 March, 30 March and 31 March 2023.

72. Much of the content is in the form of submissions rather than evidence. He ultimately concludes that the trial should be stayed so that he is not denied a fair trial. He goes on to say that he believes that legal aid will be approved, subject to the clarification of certain matters.

73. He complains that the trial judge did not consider all of his submissions and he asks this Court to refer to all of them. However, it is not necessary for this Court to simply reiterate everything put forward by the applicant. We have had regard to all of the material and submissions adduced by the parties.

74. The applicant submits that the trial judge erred in not finding that he had established that he was indigent, having regard to the evidence adduced before the trial judge. As the applicant submits, the evidence showed that he was an undischarged bankrupt. The applicant submits that the trial judge fell into error by not being familiar with bankruptcy law, suggesting that his Honour failed to have regard to the fact that the applicant’s assets vested in the trustee in bankruptcy and that he had been in custody for the entire period that he was bankrupt.

75. The applicant submits that his Honour acted on a wrong principle and allowed extraneous matters to guide and affect him.

76. Further, the applicant submits that the only basis upon which legal aid has been refused was his failure to verify documents, suggesting that this is merely a temporary problem which can be easily resolved. Indeed, he expresses confidence that he will resolve the issue with LAC. The applicant submits that this is, again, a problem which arises out of his bankruptcy. That is, although there remains real property in his name which is vested in the trustee in bankruptcy, the applicant submits that the effect of bankruptcy is that he is “financially deceased”. This is said to have been confirmed by the evidence of Mr Weston.

77. The applicant further submits that, having regard to the documents produced by the trustee, any failure to obtain legal representation is through no fault of his own. He is reliant on the trustee for provision of information. Further, he points out that he has been dealing with LAC for more than a year but he was only informed on 13 March 2023 that he has not satisfied the verification test pursuant to Policy 7.11.2 (part of LAC’s ‘Means Test’ policy). He says that refusal of legal aid on a verification basis is different from being refused legal aid due to having sufficient assets or income.

78. The Crown accepts that the question of whether the applicant is unable to obtain legal representation through no fault of his own was not raised before the trial judge. It is not necessary to consider this point further on appeal, although it remains an important aspect of this type of application.

79. The applicant submits that he has not exhausted all avenues of obtaining legal aid and, as he emphasised orally, he intends to resolve the issue with LAC if given an opportunity to do so, thereby allowing him to obtain representation. He says that the trial judge erred in considering that he had exhausted all avenues of obtaining legal aid.

80. Further, the applicant points to the affidavits in which he says he addresses his inability to secure private funding from other sources and pro bono assistance. He says that his parents have been bankrupt and his sisters do not own any property. His bankruptcy has had a domino effect on other properties connected with family members who were guarantors in respect of some of his debts.

81. Further, he submits that if a stay is not granted, it will imperil his other trials and future legal representation. He points to the observations in R v Cranston (No 8) [2021] NSWSC 9 at [44] per Payne JA, suggesting that if a stay is granted it may be that LAC decides to re-consider its refusal.

82. The applicant provided further submissions in writing on Ground 1 through his sister, Ms Osman, on 16 April 2023. In those submissions, the applicant challenges the trial judge’s reference to LAC not accepting that the applicant had been full and frank, suggesting that the LAC solicitor had used different words to describe his application, being “incomplete and inadequate”. The applicant also refers to the trial judge’s statement that the LAC solicitor described the applicant’s information as “incomplete and inaccurate”. He emphasises that the solicitor did not use the word ‘inaccurate’.

83. The applicant says that LAC did not clearly describe the further information it sought.

84. In his further submissions, the applicant again refers to the evidence of the trustee, challenging the trial judge’s characterisation of that evidence.

85. Fundamental to the application in the Court below and on this appeal is the applicant’s assertion that he is indigent. He says that he must be because he is a bankrupt and all of his assets are vested in the trustee in bankruptcy. His statements as to the financial position of his parents and his six sisters are all intended to establish that he has no capacity to raise any funds to obtain legal representation.

Consideration

86. The evidence that he relies upon to establish that he is indigent is primarily:

1. his own statements as to his lack of income or assets and the financial position of his family;

2. supporting material from his sister; and

3. the reports to creditors of the trustee in bankruptcy.

87. There is no dispute that the applicant bears the onus of proving that he is indigent. He accepted this in his own affidavit.

88. In considering whether he was satisfied that the applicant had discharged his onus, the trial judge paid particular attention to the information provided by LAC and the trustee in bankruptcy.

89. The trial judge summarised the position of LAC and the trustee in bankruptcy as follows:

“By way of summary only, it is apparent that Legal Aid NSW and the accused’s trustee in bankruptcy were not satisfied that he had been complete and entirely accurate or honest in material that he provided them from time to time, in the course of the myriad of proceedings in which he has been involved.”

90. The applicant submits that his Honour’s use of different language (as referred to above) was an error on his part. This is because on the applicant’s case, the problem with LAC was merely a verification issue which, as he said during oral submissions, he was confident he would be able to resolve.

91. However, the basis of such a submission is unclear. The applicant’s confidence that the verification issue can be resolved is contrary to the evidence and also contrary to the finding by the trial judge. Whilst his Honour did summarise his understanding of the position of LAC in his initial brief judgment, he came back to the evidence of LAC in his final judgment. His Honour referred to the applicant’s dealings with LAC which we have outlined earlier in this judgment.

92. In responding to the submission that the requirements of LAC were unclear, his Honour said:

“The accused complains that it is unclear what further information might be sought by Legal Aid, however my reading of their letter suggests that what was needed was clearly sought against the history of the interactions with the accused.”

93. This finding was well open to the trial judge.

94. In an email of 10 February 2023, the solicitor employed by LAC provided the following update with respect to its position, pursuant to s 25(4)(l) of the Legal Aid Commission Act 1979 (NSW):

“1. In November 2021. Mr Mehajer’s grants of aid were terminated.

2. Mr Mehajer subsequently appealed those terminations of aid to The Legal Aid Review Committee (LARC).

3. On 2 March 2022 LARC heard and refused the appeals.

4. Pursuant to s 60 of the Legal Aid Commission Act 1979 (NSW), the decision of the Legal Aid Review Committee is final.

5. In cases where, new information comes to hand subsequent to the decision of the Legal Aid Review Committee, a redetermination of an application for legal aid under s 34(1) of the Act may be relevant.

6. By letter dated 14 July 2022 Legal Aid NSW informed Mr Mehajer that any application for legal aid in the future he would need to include information to satisfy Legal Aid NSW that he is eligible for legal aid under the Legal Aid NSW means test.

7. From 9 January 2023 through to 30 January [20203] Mr Mehajer sent several letters with attachments to Legal Aid NSW. In that correspondence Mr Mehajer requested that Legal Aid NSW reconsider granting him legal aid in relation to his current matters.

8. On 2 February 2023 Legal Aid NSW made the decision that there was new information that justified re-consideration of his applications for legal aid. On that same day Legal Aid NSW wrote to Mr Mehajer informing him of this decision and reminding him to provide information and documents so that his eligibility under the Legal Aid NSW means test can be assessed. That letter was posted to Mr Mehajer in custody and sent by email on 2 February 2023 to the person Mr Mehajer was authorised to receive correspondence on his behalf. He was asked to provide the information requested by 16 February 2023 and was advised that if a response is not received by that date, a decision would be made on the information available. The short time frame was due to the pending court dates. That due date can be extended if necessary and appropriate.

9. To date Mr Mehajer he has not provided any of the information and documents relating to his means listed in the letter dated 2 February 2023.

10. Legal Aid NSW will not be able to determine Mr Mehajer’s eligibility for legal aid until he provides the requested information and documents.

11. Should Mr Mehajer provide the information requested a decision as to his eligibility for legal aid should be able to be made within 7 days of receipt of that material.”

95. Although the applicant’s sister, Ms Osman, provided a partial response to the information sought, in reality, her response was inadequate. She did not provide any additional information, merely stating that the applicant had no source of income and did not have access to bank statements or bank accounts.

96. She said that although there was an invoice from a barrister for $5,000 in respect of a bail application, the barrister had not been paid and the solicitor had provided his legal services on the basis that he would be paid at a later date. No invoice was provided from the solicitor.

97. No correspondence from the solicitor to the effect that he had undertaken to accept payment for legal services at a later date, nor that the barrister’s invoice had not been paid, was provided by the applicant.

98. Further, the only explanation provided as to the applicant’s ability to source a surety of $200,000 in respect of his bail application was that his parents did not source any surety funding and that, in 2018, the applicant was offered $200,000 surety from a third party by way of caveat only. The third party was said to be overseas.

99. The offer for surety of $200,000 is referred to in the judgment regarding the applicant’s bail application in 2018 (see R v Mehajer [2018] NSWSC 1687, per Davies J). No further information was provided about the source of that surety.

100. In coming to the view that, despite the applicant’s bankruptcy, he had not discharged the burden of establishing that he is indigent, the trial judge had regard not only to the material from LAC but also to the evidence from Mr Weston, the applicant’s evidence and the contents of the reports to creditors.

101. In particular, his Honour referred to various aspects of the report of 31 May 2021 produced by Mr Weston, including statements by Mr Weston that:

1. the applicant had been uncooperative in dealing with the trustee and, as a result, his conduct had caused a significant blowout in costs associated with the proper administration of the estate;

2. he formed the view that the applicant’s statement of assets was incomplete and inadequate;

3. he said that on numerous occasions, he had directed the applicant to produce records and information pertinent to his examinable affairs and the applicant had failed to provide any meaningful response;

4. further, he had, on numerous occasions, directed the applicant to deliver up cash in his possession or control but he had failed to do, having previously asserted that he held cash in the sum of $65,000;

5. at one stage, police seized the sum of $6,530 from the applicant’s then residential address at Kirribilli. The applicant asserted that it belonged to his sister and a company associated with him; and

6. the applicant has been involved in various legal proceedings and had legal representation in most of the proceedings, had received advances from associated entities, had the use of luxury motor vehicles, had been residing Kirribilli and rental expenses were paid by the associated entity. Despite requests, the applicant had failed to provide the trustee with details of benefits received throughout the duration of the bankruptcy.

102. The trial judge said:

“113. The Crown conceded that the accused might have tested these assertions in cross examination and should not be thought to have necessarily accepted entirely their truth and accuracy, but it remains that this is powerful evidence upon which the court would find that the accused has not met his burden of proof.”

103. Further, at least to a certain extent, the applicant’s own evidence elicited during cross-examination raised further doubts as to whether he was indigent. For example, he agreed that he had asserted in previous affidavits before various Courts that, if released from custody, he would be able to raise loans or gifts from people in order to secure legal representation. He agreed that he had said that in affidavits “potentially”.

104. The basis upon which the applicant would be able to raise funds for legal representation if released from custody was never explained. Secondly, he agreed that he had managed to raise some money for legal representation since being placed in custody.

105. Further, there is some inconsistency between the applicant’s evidence and the email from his sister stating that his solicitor had agreed not to be paid until a later date. The applicant referred to having $13,500 jointly with the complainant (who is a former partner of the applicant) and a further $7,000 on trust with his then solicitors in December 2020. He accepted that he had retained Senior Counsel in a bail application before the Court of Criminal Appeal in 2022, albeit he said that Counsel had appeared at a 50% discount. He said the money for Senior Counsel’s fees came from Ace Demolition and Excavation Pty Ltd (‘Ace Demolition’) by way of a loan agreement. He said the money did not come to him directly but, rather, it was his sister who borrowed the money from Ace Demolition. The applicant said that this arrangement was made based on half of a debt owed by Ace Demolition to his sister, although he said he could not recall the full amount of the money available to his sister because there were different transactions involved and the loan had been topped up at some stage.

103. The applicant agreed that, as of November 2022, there were three transactions from Ace Demolition which he said came to a total of about $36,000 to $40,000 over six months.

104. When it was put to him that Ms Osman had only provided an invoice from Tom Hughes of Counsel in the amount of $5,500 to LAC, the applicant said that he and his sister had struggled obtaining invoices from law firms. When asked why Ms Osman had not disclosed other money paid to Mr Agius SC, the applicant said that LAC had asked a specific question about Mr Hughes’ fees, so they provided a response to the question exactly as was asked.

105. However, it emerged that Mr Hughes had represented the applicant in an application before N Adams J in the Supreme Court in 2023, and also in an application before Williams DCJ in the District Court.

106. The applicant also said in cross-examination that Mr Hughes had been paid $5,000 for the Supreme Court application and $3,500 for the District Court application. This is contrary to the information provided by Ms Osman to the effect that Mr Hughes had not been paid. When asked where the $8,500 came from, the applicant said that it was from a borrower and that evidence of the loan had been provided to LAC.

107. He was further asked about whether he had disclosed the fact that he was having discussions with third parties about obtaining money for legal fees to the trustee. The applicant asserted that he did not have to disclose this to the trustee.

108. It is clear that the trial judge had regard to the documentary evidence produced by LAC as well as other documentary evidence, including reports to creditors from the trustee in bankruptcy, the oral evidence of the trustee and the applicant’s affidavits and his oral evidence.

109. Having considered all of this evidence, the trial judge found that he was not satisfied that the applicant had established that he was indigent. In our view, that finding was open to the trial judge. The trial judge was entitled to reject the applicant’s submission that he must be taken to be indigent because he was bankrupt and in custody.

110. The applicant has not shown that the trial judge applied wrong principles or failed to consider relevant evidence or misinterpreted the facts. The applicant’s submissions in this appeal are largely a restatement of that which he asserted in the Court below.

111. This is not an appeal by way of a rehearing. If leave to appeal is granted, then the applicant must establish error of the type referred to in House v The King. As observed in R vCox at [8], establishing error in a discretionary judgment is particularly difficult when the basis of the decision was that the trial judge was not satisfied of a matter about which the applicant bore the onus of proof. The so-called fresh evidence does not assist him, even if it could be used in the way sought by the applicant.

112. As the applicant has not succeeded on Ground 1, then the other grounds fall away. The trial judge did not accept that the applicant was indigent and, thus, the application was bound to fail. The trial judge acknowledged this when he went on to consider whether the applicant could properly represent himself, only on the basis that “lest he be wrong” on the indigent issue.

113. In all of these circumstances, the appropriate order is that leave to appeal is refused.

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Endnotes

Decision last updated: 18 May 2023