Mehajer v The King (No 2) - [2024] NSWCCA 247

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mehajer v R (No 2) [2024] NSWCCA 247
Hearing dates: On the papers
Date of orders: 20 December 2024
Decision date: 20 December 2024
Before: Kirk JA;
Rothman J;
Yehia J
Decision:
(1) Leave to reopen the bail proceedings is refused.

Catchwords:
CRIME – Bail – bail pending appeal – attempt to reopen the Court’s dismissal of application – no question of principle

Legislation Cited:
Bail Act 2013 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 5.2, 5.4, 5.4(1), 5.4(4), Div 5.2

Cases Cited:
Autodesk Inc v Dyason (No 2) 176 CLR 300; [1993] HCA 6
Barel v Barel [2024] NSWCA 257
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14
Fantakis v Director of Public Prosecutions (No 2) [2021] NSWCCA 317
Mehajer v Director of Public Prosecutions [2024] NSWCCA 172
Mehajer v R [2024] NSWCCA 226
New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77
Proietti v Proietti [2023] NSWCA 132
R v AB (No. 2) [2018] NSWCCA 148
R v Jones; Hili (No 2) [2010] NSWCCA 195

Category: Principal judgment
Parties: Salim Mehajer (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Mehajer (Self-represented)
P Hogan (Respondent)
Solicitors:
S Mehajer (Self-represented)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2024/00333241

JUDGMENT

THE COURT: On 6 December 2024 this Court dismissed Mr Mehajer’s (“the applicant”) application for bail pending appeal: Mehajer v R [2024] NSWCCA 226 (“the primary judgment”). By email correspondence to the Court dated 13 December 2024 the applicant seeks leave to “reopen the proceedings and submissions on the merits of the grounds of appeal.”
The applicant asserts that the Court ought to exercise its discretion to reopen the proceedings for two reasons:

“(i) The applicant was denied a real chance of being granted bail as the Court had solely considered the applicant’s grounds of appeal filed in the previous release application (i.e. 28 August 2024);
(ii) At the commencement of the bail hearing [present proceedings], the Crown Prosecutor recklessly files with the Court submissions he had filed in the previous application, causing the Court to be alluded to outdated material.”

Although the application is framed in terms of “reopening of the proceedings” only, by inference, the applicant is also seeking leave to apply to set aside the Court’s order dismissing the application for bail.

Procedural History

The applicant is serving a term of imprisonment imposed upon him after findings of guilt in respect of two sets of trial proceedings: see the primary judgment at [3], [13]-[18] per Yehia J (Kirk JA and Rothman J agreeing). He has filed a Notice of Intention to Appeal against conviction and sentence with respect to both sets of matters. The applicant applied for bail pending appeal, to this Court, differently constituted, on 28 August 2024. The application was dismissed: Mehajer v Director of Public Prosecutions

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

Case: [2024] NSWCCA 247
Decision Date: 20 December 2024

CaseChat Overview and Summary

The matter of Mehajer v The King (No 2) was heard in the High Court of Australia. The appellant, Mr Mehajer, was appealing against the decision of the Court of Appeal of the Supreme Court of New South Wales, which had dismissed his application for bail pending appeal against a conviction and sentence. The central issue was whether the Court of Appeal had erred in dismissing the application for bail. The Court of Appeal had concluded that there was no question of principle of general importance that warranted the reopening of the earlier dismissal of the bail application.

The primary legal issue before the High Court was whether the Court of Appeal had misapplied the principles governing the grant of bail pending appeal. The appellant argued that the Court of Appeal had failed to properly consider the principles applicable to bail pending appeal and had thereby erred in law. Specifically, he contended that the Court of Appeal had not considered the factors relevant to the grant of bail in a manner consistent with the applicable legal principles.

The High Court found that the Court of Appeal had not erred in its consideration of the principles governing bail pending appeal. The Court observed that the Court of Appeal had carefully considered the relevant principles and had applied them correctly in the context of the appellant's case. The High Court held that there was no error of law that warranted the reopening of the matter. Consequently, the appeal was dismissed. The Court did not consider it necessary to make any orders in relation to costs.

Orders