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Mehajer v The King

Mehajer v The King

Case [2023] NSWCCA 101 17 April 2023

Appeal

Standing

Indigent Defendant

Self-Represented Litigant

Criminal Law

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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:

the trial judge erred in finding that the applicant failed to establish that he was indigent;
the trial judge erred in the exercise of his discretion in refusing an application for a temporary stay;
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
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…

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.

Continue reading Mehajer v The King

Details

AGLC: Mehajer v The King [2023] NSWCCA 101
Case: [2023] NSWCCA 101
Decision Date: 17 April 2023

CaseChat Overview and Summary

The appellant, Mr Mehajer, appealed against the refusal of a trial judge to grant an application to stay the criminal proceedings against him. The application was based on the premise that he was indigent and unable to represent himself at trial. The High Court of Australia was asked to consider whether the trial judge's refusal to stay the proceedings was an error of law. The appellant argued that he was not only indigent but also incapable of conducting his own trial effectively. The central issue before the court was whether the trial judge's decision to deny the stay was a clear error of law, given the appellant's financial situation and self-representation capabilities.

The court considered whether the trial judge's refusal to grant the stay was an error of law. It examined the evidence presented regarding the appellant's financial status and his ability to represent himself at trial. The court noted that the trial judge had considered the appellant's financial circumstances and his capacity to act as his own legal representative. The court held that the trial judge's decision was not an error of law, as there was no clear indication that the appellant was unable to represent himself due to indigence or incapacity. The court found that the trial judge had properly exercised their discretion in denying the stay.

The High Court dismissed the appeal, affirming the trial judge's decision. The court concluded that there was no basis for finding that the trial judge's refusal to stay the proceedings was an error of law. The appellant's indigence and self-representation issues did not provide a sufficient ground for the court to overturn the trial judge's decision. The court's ruling stood, and the criminal proceedings against the appellant continued as scheduled.

Orders