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Mehajer v The The King

Mehajer v The The King

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Case Copied 18 November 2022 84 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mehajer v R [2022] NSWCCA 240
Hearing dates: 15 July 2022
Date of orders: 18 November 2022
Decision date: 18 November 2022
Before: Bell CJ; Gleeson JA; Yehia J
Decision:
(1)   Leave to appeal against conviction granted on grounds 1, 2, 4 and 5.
(2)   The application to admit fresh or new evidence on appeal is refused.
(3)   Appeal against conviction dismissed.
(4)   Leave to appeal against sentence granted.
(5)   Appeal against sentence dismissed.
(6)   Release application filed 5 August 2022 dismissed.

Catchwords:
CRIME – Appeal against conviction – leave to appeal – judge alone trial – application to rely on new and fresh evidence – whether excessive intervention by trial judge – whether judge’s questioning caused miscarriage of justice – whether prosecution complied with disclosure obligations – data downloaded from applicant’s mobile phones – whether data provided in advance of trial – whether guilty verdicts unreasonable or unsupported by the evidence
CRIME – Appeal against sentence – leave to appeal – appeal against sentence – two offences of perverting the course of justice and one offence of perjury – whether error in assessment of need for specific deterrence – whether aggregate sentence double punishment or crushing – whether failure to give adequate weight to conditions in custody – whether sentence was manifestly excessive
CRIME – Bail – bail pending appeal – where two previous appeal bail applications dismissed by Court of appeal – whether change in circumstances since previous application – Bail Act 2013 (NSW) ss 74(1), (3)

Legislation Cited:
Bail Act 2013 (NSW), ss 4, 22, 49, 74
Crimes Act 1900 (NSW), ss 319, 327
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 53A
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c), 6(1)
Criminal Procedure Act 1986 (NSW), ss 61, 62, 63
Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases Cited:
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
Ellis v R [2015] NSWCCA 262
FB v R; R v FB [2011] NSWCCA 217
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Galea v Galea (1990) 19 NSWLR 263
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
JJ v R [2020] NSWCCA 165
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Marinellis v R [2006] NSWCCA 307
Masters v R [2022] NSWCCA 228
Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23
Mehajer v R [2022] NSWCCA 135
MRW v R [2011] NSWCCA 260
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
PO v R [2020] NSWCCA 129
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016]…

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: [2022] NSWCCA 240
Decision Date: 18 November 2022

CaseChat Overview and Summary

The appeal, brought by the respondent, concerns a conviction and sentence imposed following a judge alone trial. The applicant seeks leave to appeal against both his conviction and sentence, as well as an order for bail pending the appeal. The trial resulted in convictions for two offences of perverting the course of justice and one offence of perjury. The applicant was sentenced to a total of nine years imprisonment, with a non-parole period of six years and three months. The primary issues before the court were whether the trial judge had excessively intervened during the trial, whether the prosecution had complied with its disclosure obligations, and whether the sentence imposed was manifestly excessive.

The court found that the trial judge had not excessively intervened during the trial, and that the judge's questioning did not cause a miscarriage of justice. The court also found that the prosecution had complied with its disclosure obligations, including the provision of data downloaded from the applicant’s mobile phones. The court held that the guilty verdicts were reasonable and supported by the evidence. In relation to the appeal against sentence, the court found that there was no error in the assessment of the need for specific deterrence and that the aggregate sentence was not double punishment or crushing. The court also found that the sentence did not fail to give adequate weight to the conditions in custody.

The court ultimately dismissed the application for leave to appeal against conviction and sentence, as well as the application for bail pending appeal. The court found that there had been no change in circumstances since the previous appeal bail applications were dismissed, and that the criteria for grant of bail under the Bail Act 2013 (NSW) had not been satisfied. The court held that the application for leave to appeal should be dismissed, and that the application for bail pending appeal should be refused.

Orders