R v Mehajer
[2023] NSWDC 98
•5 April 2023
|
New South Wales |
Case Name: | R v Mehajer |
Medium Neutral Citation: | [2023] NSWDC 98 |
Hearing Date(s): | 27 March 2023 – 31 March 2023, 03 April 2023 & 05 April 2023 |
Date of Orders: | 05 April 2023 |
Decision Date: | 5 April 2023 |
Jurisdiction: | Criminal |
Before: | Bennett SC DCJ |
Decision: | (1) The application for the stay of these proceedings until the accused is able to arrange representation by a legal practitioner for the conduct of the trial is refused |
Catchwords: | CRIMINAL LAW – Dietrich application – accused charged with domestic violence offences – application to recuse – accused’s health – accused’s expenses –– exceptional circumstances warranting the trial to continue without legal representation – accused’s onus not discharged – stay refused |
Legislation Cited: | Crimes Act 1900 (NSW) |
Cases Cited: | Craig v South Australia [1994/1995] 184 CLR 163 |
Category: | Procedural rulings |
Parties: | Rex (Crown) |
Representation: | Counsel: |
File Number(s): | 2020/00369490 & 2021/00016899 |
Publication Restriction: | Non-publication order over the identity of the complainant or of any information which may cause her identity to be ascertained |
REVISED JUDGEMENT
Introduction
On Monday 27 March 2023 the accused appeared for trial in the District Court, Sydney. After I granted the Crown leave to amend Count Seven in the indictment with the accused’s consent, to accurately reflect the elements for that offence, he was arraigned and pleaded not guilty to each count.
This is but the first of trials that the accused must face this year.
The accused appeared unrepresented. As will appear below, my decision averse to his application to stay the proceedings is now before the Court of Criminal Appeal. Thus, I suspended the trial at this point pending the argument he wishes to pursue there. This is to take place on Monday 17 April 2023. The jury empanelled on 12 April 2023 has heard no more than the brief outline of the Crown case and the names of the witnesses and others who might be referenced in the trial, and my initial directions to them advising them what they might expect and what the court and the community expect of them. The proceedings are thereupon adjourned until Tuesday 18 April 2023 to resume then subject to the decision in the Court of Criminal Appeal.
The Offences
Count One
Between 1 April 2018 and 30 April 2018 at Lidcombe in the State of New South Wales did assault [the complainant].
S 61 Crimes Act 1900 Law part code 64782
Count Two
Between 1 April 2018 and 30 April 2018 at Lidcombe in the State of New South Wales did assault [the complainant].
S 61 Crimes Act 1900 Law part code 64782
Count Three
Between 1 June 2019 and 31 July 2019 at Lidcombe in the State of New South Wales did assault [the complainant].
S 61 Crimes Act 1900 Law part code 64782
Count Four
Between 1 June 2019 and 31 July 2019 at Lidcombe in the State of New South Wales did intimidate [the complainant] with the intention of causing [the complainant] to fear physical or mental harm
S 13 Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753
Count Five
On 4 October 2020 at Lidcombe in the State of New South Wales did assault [the complainant], thereby occasioning actual bodily harm to her.
S 59(1) Crimes Act 1900 Law part code 243
Count Six in the alternative to Count Five
On 4 October 2020 at Lidcombe in the State of New South Wales did assault [the complainant].
S 61 Crimes Act 1900 Law part code 64782
Count Seven
On 4 October 2020 at Lidcombe in the State of New South Wales did intentionally suffocate [the complainant] so as to render unconscious, insensible or incapable of resistance and was reckless as to causing that result
S 37(1) Crimes Act 1900 Law part code 82221
The Recent History
In the days before the trial was allocated to my court, her Honour Judge Huggett dealt with most preliminary questions that I thought she resolved, leaving for the trial judge limited matters upon which to adjudicate.
Other proceedings listed later in the year were also before her Honour.
The accused began with his application that I recuse myself from hearing his application for a stay of the proceedings. My understanding was that the bulk of the accused’s applications resolved by Judge Huggett reflected in the orders made by her Honour according to JusticeLink. Relevantly, they were:
(1)15 March 2023
Appearances: Mr K Gilson, Crown Prosecutor. Accused in person.
File 2018/00023732-006 - false representation resulting in police investigation - listed for hearing on 16 March 2023 at 12 midday in the District Court Sydney Downing Centre.
Part heard before Judge Huggett - estimated duration: 60 Minutes – the accused to attend via AVL.
(2)16 March 2023
Appearances: Mr K Gilson, Crown Prosecutor. Accused , In person.
File 2018/00023732-006 - false representation resulting in police investigation - listed for mention on 20 March 2023 at 9:30 am before the District Court - at Sydney Downing Centre.
Part heard before Judge Huggett - estimated duration 5 Minutes – the accused to attend via AVL.
Non-publication order made in relation to all pre-trial proceedings.
(3)16 March 2023
Appearances: Mr K Gilson, Crown Prosecutor. Accused, in person.
File 2018/00023732-006 - false representation resulting in police investigation - application of 21 February 2023 to vacate trial date of 27 March 2023 withdrawn by the accused.
(4)20 March 2023
Appearances: Mr K Gilson, Crown Prosecutor. Accused, in person.
File 2018/00023732-006 – false representation resulting in police investigation - listed for Mention on 24 March 2023 2:00 pm before the District Court Sydney, Downing Centre.
Part heard before Judge Huggett - estimated duration 5 minutes.
Accused to attend via AVL.
(5)24 March 2023
Appearances: Director of Public Prosecutions, Prosecuting Authority. MEHAJER, SALIM, Accused
File 2018/00023732-006 -false representation resulting in police investigation –
1. Notice of Motion to vacate the trial (dated 21 February 2023) formally withdrawn.
2. Accused does not move on the Notice of Motion seeking a temporary stay (forwarded to the Registry on 20 March 2023)1.
3. Accused to be brought to court in person on Monday 27 March 2023.
4. The SACP issue in relation to the subpoena to Cumberland Hospital adjourned to Monday 27 March 2023 to be dealt with by the trial judge. (This refers to protected confidences)
NOTES
1. Records from Cumberland Hospital –redacted and unredacted – are marked as Exhibit 8.
2. The Protected Confider’s Affidavit marked Exhibit 9.
3. Ms Pietrini’s submissions in relation to the records from Cumberland Hospital ae on the file.
4. Jury not required on Monday 27 March.
5. The parties will update court on Monday 27 March as to when empanelment may take place.
6. Matter not part-heard before me.
Although these on their face appear to be for proceedings the subject of another file, to be conducted later in the year, the orders all concern the present matter.
On the first day of the proceedings before me I raised with the accused the decision not to move on the notice for the stay of these proceedings.[1] The accused responded:
ACCUSED: It isn’t - it wasn’t at the time but it was never - it was put on the record that it will be pursued in due course. So there was a bit of a time restriction as well over the past week to have the stay application heard because we were waiting to see if the grants, the division who grants aid which they didn’t on the last minute. Then a callover was on 23 March and that’s when I intended to have the stay application but then I got told to go to the 24th before Judge Huggett. Then that proceedings only went for half an hour because I was in the process of getting transported to a different gaol so that didn’t get mentioned at all but I did put on record that--
[1] This was issued in the proceedings for trial the subject of this judgement.
I interjected to clarify these propositions; the transcript continues at page 2 with the accused’s further explanation for the need to stay the proceedings. I shall return to this.
Application to Recuse
The first application the accused pursued was to have me recuse myself from hearing the application he intended to make for the temporary stay of the proceedings. The accused confined the application to the determination of that question. He revealed this on the second day, 28 March 2023. The transcript begins at page 25.
The document regarding this addressed to my Associate arrived in my chambers on the evening of 27 March 2023. I marked it Exhibit One. In it he wrote,
Unfortunately, it just came to my mind that the proceedings (bail) his Honour had made reference to are proceedings where his Honour may be conflicted due to the following reasons:
The reasons advanced were,
(1)During his last application for variation of bail before me he tendered an affidavit from the complainant in the current matters.
(2)The affidavit spoke of his qualities as a good partner.
(3)The creation of the complainant’s affidavit was temporally connected with allegations against him and might contradict her statement.
(4)He could not recall my findings regarding the complainant, if any. The complainant was involved on at least one occasion when property was stolen from his home in Frances Street.
(5)There was property stolen from “the” Frances Street properly and a COPS entry asserted the complainant’s involvement in this on at least one occasion.
(6)There were many issues addressed in the bail applications that may give rise to a conflict. The hearing continued for about 20 days. Reviewing transcripts will be time consuming.
(7)Other issues in the bail application might give rise to a conflict. Reviewing transcripts would be time consuming. He could not recall my findings regarding the complainant, if any.
He concluded,
If I may respectfully request (politely and with my utmost respects) that my trial matter and stay application be listed before a different judicial officer.
When sitting as the list judge at Parramatta, I determined the accused’s application for variation of bail granted by Fagan J in the Supreme Court. I delivered ex tempore judgements on 28 June 2019, 25 July 2019, and 23 October 2019. I accessed these to bring to mind my decisions and reasons for them. I provided the accused with copies of the judgements and the transcripts of the proceedings on 22 May 2019, 28 May 2019, 29 May 2019, 6 June 2019, 11 June 2019, 13 June 2019, 18 June 2019, 20 June 2019, 21 June 2019, 24 July 2019.[2]
[2] Transcript page 1.
The reference to an affidavit from the complainant extended to the transcript at page 33, where the accused acknowledged that he did not lead evidence from the complainant because of her mental health and the Crown would not consent to the tender or filing of her document without the opportunity to cross examine her. After this discussion, the accused said,[3]
ACCUSED: Yes, that's right. So, that put a bit of pressure to [the complainant], and we thought it in her best interest, mental health and so on, that she not be called. But the affidavit was executed on the day. So, in light of that, your Honour, I think the best way moving forward, and I say this with my utter respect to your Honour, that the recusal application should only extend potentially to the stay application because the jury trial, I don't think there'll be much of an impact having your Honour appear for the jury trial, but for the stay application is what I would be seeking the Court to have his Honour step aside, and I say that respectfully, and the main basis for that, your Honour, is the adverse findings made in his Honour's judgment
[3] Transcript page 29.
I invited the accused to identify those findings. The relevant judgement was on 23 October 2019. He noted page 43 and the passage,
There is one further aspect upon which I would comment and that is this: he represented to this Court that there was grave difficulty in him having a landline to his premises for various reasons proffered and an expert witness was called in that regard as well as evidence from investigations by police with regard to Telstra. The evidence led me to reject the representations advanced by the applicant in respect of those matters.
The accused amplified the circumstances behind that summary and concluded,[4]
So, I just have genuine fears, and I say this respectfully, that you may be unconsciously perhaps have a pre‑judgment against me in that regard. That's all I really have to say. Unless the Crown has to say something, I may respond
[4] Transcript page 33 line 43.
I asked if there was anything else in the judgement that he would have me consider, and he added, alluding to my reference to a detention application, [5]
It was for a detention application. So, page 43, third paragraph beginning, "I am satisfied". As to the adverse findings, that's all I wanted to point his Honour to and as I was saying earlier, what I'm concerned about and I used the Telstra line as an example where I had an expert witness and documentation from Telstra if I wasn't able to convince his Honour that I was telling the truth. I don't know how I'm going to be able to satisfy your Honour that I'll be telling the truth in respect to unable to self‑represent myself adequately and the fact that I don't have legal representation not because I choose to, but because it's out of my control.
[5] Transcript page 35 line 6.
I identified the relevant passage beginning on page 43 and extending over onto page 44:
I am satisfied that the concern that the applicant might commit further serious offences or interfere with witnesses or evidence are such as would require the Court to give careful consideration to an application for detention by the Crown, however, the Crown does not seek such an order. Regrettably the applicant has demonstrated that he is unable to comply even with the most easily observed conditions of limiting himself to the use of one mobile telephone.
There is one further aspect upon which I would comment and that is this: he represented to this Court that there was grave difficulty in him having a landline to his premises for various reasons proffered and an expert witness was called in that regard as well as evidence from investigations by police with regard to Telstra. The evidence led me to reject the representations advanced by the applicant in respect of those matters.
The accused said that his argument was that even though the bail variation went in his favour, the adverse findings were about his credibility, important for his application to stay the proceedings and how the jury would perceive him representing himself. He suggested there was scope for an unconscious bias, or lack of impartiality, and held fears that the stay application might work against him.
The Crown opposed the application.[6]
[6] Transcript page 35 line 40.
The Crown brought to my attention McIver v R [2020] NSWCCA 343 and the judgement of Davies J with whom Johnson and Adamson JJ agreed. The Crown noted that this was to be a trial before a jury, and not a judge alone, and submitted that the essence of the test was whether it was possible that the informed, objective observer would regard a particular judge as biased or unable to bring an impartial mind to a decision required in the proceedings. Successful applications in cases such as this would log jam the criminal justice system if achieved upon refusal of an application to vary bail upon sworn evidence not accepted as credible.
The Crown submitted that I reached a decision against the accused regarding his credit in a bail determination that extended over more than 16 days in 2019. The Crown brought to attention page 36 of my judgement,
There were other matters that arose in the course of this application on the occasions when the applicant was not present and produced a medical certificate to justify his absence. I do not intend to take time dealing with that. I did form an unfavourable view of the applicant and his explanations for not being at court but I put it to one side and that is not material upon which I have come to the decision that was made in this case.
The Crown submitted that this resonated with what Davies J said in McIver v R ibid at para [67],
In applying the test, the reasonable bystander will have regard to the fact that the person being observed is a professional Judge whose training, traditions and oath or affirmation require the Judge to discard the irrelevant, the immaterial and the prejudicial (Johnson v Johnson at [12]). However, a judicial oath is not a guarantee of impartiality and a judge’s professional status and experience is but one factor which a fair-minded observer will have in mind when forming an objective judgment as to the risk of bias (Helow v Secretary of State for Home Department at [57] (Lord Mance); Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98 at [103]-[108]).
His Honour wrote at para [63],
The assertion in the present case is not that the trial judge was actually biased but that from the time she disclosed that she knew CN there was an apprehension of bias. The test is stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. The judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6]:
… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
The judgement went on to say at [7]:
The question is one of possibility (real and not remote), not probability
The Crown noted that frequently a judge makes decisions in trials, which might reflect adversely on an accused's credit, and sometimes the credit of witnesses in the case, but a judge must separate that from other issues. The Crown noted that notwithstanding my express reservations regarding aspects of the accused and his circumstances, in reaching my decision favourable the accused in the application for bail variations, I determined the issue, as Mr Mehajer conceded, fairly and beneficially for him.
The Crown submitted that the reasonable objective observer would not anticipate that I would act with bias in the determination of the application for the stay of these proceedings, upon consideration of what occurred in the earlier proceedings and the outcome. In McIver v R ibid Davies J wrote at para 66]:
In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 Lord Hope of Craighead said at [2]-[3]:
The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. ... Her approach must not be confused with that of the person who has brought the complaint. ... The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. ...
Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
The Crown drew another analogy from the anticipated tender by consent of the accused’s ERISP with limited challenges to portions of it. A ruling averse to the accused upon that issue could not reflect the possibility that a fair-minded lay observer might reasonably apprehend I might not bring an impartial mind to the resolution of the question I must decide.
The Crown concluded that if every time a judge made a determination against an accused on one aspect of credit, whether on oath or otherwise, it was capable of reflecting possibility of bias, there would be a log jam in the criminal justice system and few trials would proceed without an accused de-railing the case by having the judge recuse him or herself.
After weighing the arguments presented, and upon the review of my judgement delivered in earlier proceedings when I allowed variations to bail conditions sought by the accused, I refused the application.
The reasons for this were summarised, with the intention of providing a judgement for Caselaw dealing with this and the application for the stay of the proceedings.[7]
[7] Transcript page 37 line 48.
I do not accept entirely the significance the Crown placed upon the analogies offered in its submissions. Although it is correct to say that trial judges are frequently called upon to rule upon applications in voir dire proceedings which might require an assessment of the credit of the accused or witnesses the accused calls, limited though those occasions might be when the jury has responsibility for the issue raised, it remains that the bare fact that a ruling is against the accused’s position could not justify the decision to recuse.
The question is whether the conduct of the hearing by the court, and the reasons given for the decision, whether averse to the accused or the Crown, might cause a fair-minded lay observer to reasonably apprehend that it might not bring an impartial mind to the resolution of the question it is required to decide, in this instance whether the accused should be granted a stay of the trial until he is in a position to fund at public expense or privately the costs of legal representation in the trial.
It is true that there were aspects of the accused’s presentation in the earlier proceedings for the variation of bail that were of concern, and I believe required comment, since the hearing of that application extended over days with material before the court increasing as the proceedings continued. These concerns did not work to the accused’s disadvantage in the assessment of the orders sought, which I granted at the conclusion of the proceedings before me as the list judge in the court in Sydney West.
A matter not raised is the notoriety that the accused has arising from various circumstances in his personal life and his position in public office, frequently and extensively exposed in all forms of media in Sydney. Not only will the trial judge need to be assiduous in resisting the impact of those publications but must also explain to the jury that those matters are irrelevant to the task at hand and ought not to bear in in any manner upon their deliberations.
I am persuaded that the conduct of the earlier hearing, in 2019, and the terms of my judgement leading to the orders made consistent with the accused’s wishes in that matter, would not cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the question I must decide, in this instance whether the accused should be granted a stay of the trial until he is in a position to fund at public expense or privately the costs of legal representation in the trial.
It is for these reasons that I did not grant the application to recuse myself.
The Application to Stay the Proceedings
As with the application for recusal, my intention was to prepare and publish a judgement dealing with this issue. The volume of material tendered is so great that I was unable to do so by Wednesday 5 April 2023 when I wanted to announce my decision to accommodate the accused’s indicated intention. The accused indicated as the matter progressed and before my decision that he would pursue an appeal from it should it be averse to him. I decided to refuse the application. Accordingly, I took the course of providing an interim judgement to facilitate the course the accused indicated, and continued preparation of this judgement with reference to the documents tendered and evidence led. Unfortunately, for reasons that are beyond the accused’s control in his present circumstances, almost a week expired before notice of his intention reached the registry of the Court Criminal Appeal.
I read all of the material produced in the time available to me and upon which I reached my decision before coming to it.
Due to the urgent need for these reasons for the Court of Criminal Appeal after I refused the accused’s applications, I have taken the step of providing the lists of exhibits and documents marked for identification within this judgement to assist those with the task of presenting argument and deciding the application in the Court of Criminal Appeal.
At the risk of repetition, I decided to include content of the interim judgement here, for inclusion in the document I shall publish on Caselaw to facilitate the steps the accused has now taken to have my decision considered in the appellate court.
The accused pursued the stay of the proceedings so that he might arrange to have counsel represent him in the trial. His reasons were that he was indigent, as that term is understood in the authorities beginning with Dietrich v The Queen [1992] HCA 292, that he had been unfairly denied Legal Aid which he was confident would be provided if given more time to persuade Legal Aid NSW of his circumstances, and that he was not competent to conduct the trial without the benefit of an appropriately qualified legal representative.
In my ex-tempore interim judgement, I said that the accused includes in his reasons for the assertion that he was not competent to represent himself from his impaired mental health (with which I deal later in this judgement), upon which judges in earlier proceedings assessed his fitness for proceedings. I here misspoke. The earlier proceedings in which this issue was raised were an application for bail before another judge in this court and the subsequent application for revocation of bail by the Crown in the Supreme Court.
The authorities relevant to this question, as I said, begin with Dietrich v The Queen ibid, followed in the judgement at first instance before Beech Jones CJ at CL in R v Cranston [2020] NSWSC 469. In that judgement, his Honour helpfully assembled the statements of principle and considered them to the extent that they applied to the case before him. His Honour cited from the judgement of Mason CJ and McHugh J in Dietrich at p 315 of the published judgement:
"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 approached 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."
I note Beech-Jones CJ at CL added emphasis by way of italics. The passage quoted reflects what appears in the beginning of the judgement by Mason CJ and McHugh J at page one of the High Court judgement. It is in the following terms:
"In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognise the right of an accused person to be provided with counsel at public expense. However, the Courts possess undoubted powers to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial;, as it is in most cases in which an accused person is charged with a serious offence."
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.
The question that then arises is whether if that evidence is accepted the accused has satisfied the burden of proof upon him to show to the Court that he is indigent and is unable to provide the necessary resources to have legal representation for him in the course of the trial. I am not satisfied that he has discharged that burden.
Lest I be wrong in that view, I would add the following. I have had the opportunity to observe the accused throughout the conduct of this voir dire. He has addressed me both in writing and orally in the courtroom. He gave evidence and faced cross‑examination from a competent and thoughtful Crown Prosecutor who carefully raised the matters for consideration by the Court upon which the decision is to be reached. I have no doubt that he is competent and capable for the conduct of the trial which is to now commence next week.
I note that in the most recent document provided outlining the submissions he makes in support of his application that he was assisted in that regard by Mr Adam Cranston, who I understand to be the accused in the trial that was before his Honour Beech-Jones CJ at CL. Without knowing the extent of that assistance for preparation of that document, when I compare the documents in the form of affidavits that he has prepared from time to time throughout the conduct of this voir dire, it is apparent that he is articulate, can marshal his thoughts, and present argument in a logical and sensible manner.
The conduct of this trial will involve a person who will be engaged to conduct cross-examination of the complainant because of the nature of the offences upon which the accused is presented. Thus, he will not face alone the task of formulating questions and putting them to the witness as she is tested in her assertions, though I accept that he must at least identify the topics for cross examination and identify the facts he would wish to elicit in cross examination. I note that the assistance is to be provided for him and that this is a requirement be followed in this trial.
I have conducted trials and other proceedings in the criminal justice system in which litigants were unrepresented. It is the obligation of the Court to ensure all accused and all those who come before the Court are fairly treated, have a proper hearing with the matters upon which they would advance being given appropriate consideration, with their right to be heard upon any matters that will ultimately exercise the Court's mind in coming to a decision.
I am confident that I can ensure that the accused will have a trial conducted fairly, which is his right. I will ensure that he is apprised of those matters that he might raise in the defence case so that he may formulate his arguments and pose questions as might be required to the witnesses who will be attending to give evidence.
The Crown has conceded that this is a case where it might not be appropriate for the Crown Prosecutor to address the jury. I agree with that observation. It would, in my view, be appropriate for the Crown to not pursue that opportunity but allow the accused to address, and I shall then instruct the jury, as I would in all trials, upon the relevant principles of law, identifying the issues for their consideration and making sure they understand the obligation of the Crown to prove the elements of each of the offences beyond reasonable doubt.
This will be a case which will involve the jury considering the truth and accuracy of the assertions by the complainant. The accused, of course, has no burden of proof. He will, if he wishes, not be called upon to give evidence in the trial. He may stand aside and ensure that the Crown is required to prove its case beyond reasonable doubt if it is to succeed in this prosecution. He shall be made aware of all relevant principles as the trial unfolds and as they and anything else become appropriate, to bring them to mind.
This is not a complex case, I might add. I have been given the benefit of the Crown case statement which outlines the facts and circumstances which the Crown anticipates the evidence will establish. It is not necessary for me for the purpose of this interim judgement to articulate each and every one of the summaries provided for each of the charges upon which the accused is presented. The Crown case statement in respect of count five and in the alternative count six includes text messages and images showing bruising to the arm of a person who I accept, for the purposes of this application, is the complainant.
The Evidence
As well as material that was tendered to Judge Huggett, there were many documents made available to the court. The accused had some difficulty in this regard, and accordingly I took steps for subpoenae to be issued for documents and the attendance of witnesses to ensure the accused had available all material upon which he wanted to argue his point. The following items of the evidence were marked:
| EXH | DATE | DESCRIPTION | PREV. MFI or VD |
| A | 28.03.23 | Statements of Constable Daniel Whittle dated 11 May 2022, 15 February 2023 and 27 March 2023 | |
| B | 28.03.23 | Statement of SC James McGahon dated 29 January 2021 | |
| C | 28.03.23 | Statement of SC James McGahon dated 23 March 2023 | |
| D | 28.03.23 | 4-page document described as an email chain between Galbraith, Whittle and [the complainant] beginning 07 Jan 2020 and concluding on 21 Jan 2020 | |
| E | 28.03.23 | Statements of [the complainant] dated 19, 22 and 26 March 2023 | |
| F | 28.03.23 | Two sets of SMS bundles one printed on 19 April 2021 and the other on 22 April 2022 | |
| G | 28.03.23 | 8-page document of phone screen shots and separate document with dates 04 Oct 2020, 17 Jan 2020 and 5 Oct 2020 with some photos of a telephone screen with SMS messages and one photo of an arm | |
| H | 28.03.23 | Summary of gaol calls | |
| J | 28.03.23 | Affidavit of Isabella Viney dated 10 June 2022 | |
| K | 30.03.23 | 2 pages of screenshots of a phone with message conversation, second page is the same as the first except that it contains the time and date of 7 Jan 2020 5:12pm | MFI 3 |
| L | 30.03.23 | News articles printed regarding this accused and $20m | |
| M | 31.03.23 | Copy of email from complainant to Daniel Whittle 30 March 2023 00:08 with redaction of email address | MFI 5 |
| N | 31.03.23 | ERISP between Police and Accused dated 20 January 2021 | |
| 1 | 28.03.23 | Correspondence from the accused addressed to the Associate of Judge Bennett dated 27 March 2023 | |
| 2 | 29.03.23 | Email chain concluding with one from Aloysiuis Robinson today at 1039 with the email trail thereafter including communications from Nicole Corner providing a history of the applications to the Legal Aid Commission | |
| 3 | 30.03.23 | Material produced by the Legal Aid Commission including; correspondence dated 2.2.23 from the LAC to the accused, internal LAC email, external email to the LAC, memorandum of fees NSW, documents from DW Advisory, correspondence from LAC to the accused dated 2/2/23, handwritten response, affidavit by Sabrina Wong of the ODPP, further handwritten documents from the accused, a further email and an email from the LAC to his Honour’s associate advising what they have not been able to produce | |
| 4 | 30.03.23 | A document in the form of an affidavit and annexures prepared and signed by the accused dated 30 March 2023 | |
| 5 | 30.03.23 | Material produced by Mr Weston of DW Advisory | |
| 6 | 30.03.23 | A document in the form of an affidavit and annexures prepared and signed by the accused dated 27 March 2023 | |
| 7 | 31.03.23 | A document in the form of an affidavit and annexures prepared and signed by the accused prepared on 30 and 31 March 2023 and dated 31 March 2023 | |
| 8 | 31.03.23 | Document titled Annexure E from NSW Health dated 30 Sept 2022 (3 pages, last 2 pages are a clearer copy of the original | MFI 6 |
The following were marked for identification.
| MFI | DATE | DESCRIPTION | WITNESS | C /D/ F | PREV. MFI or VD |
| 1 | 29.03.23 | COPS record E68301331 document dated 22 March 2023 | Daniel Whittle | C | |
| 2 | 29.03.23 | Redacted COPS entry with print date 17/2/22 at 0703.18 relating to the same event in MFI 1 | Daniel Whittle | F | |
| 3 | 30.03.23 | 2 pages of screenshots of a phone with message conversation, second page is the same as the first except that it contains the time and date of 7 Jan 2020 5:12pm | F | VD K | |
| 4 | 30.03.23 | Email from Paul Weston to associate to Judge Bennett SC on 29 March 2023 at 4:54pm | F | ||
| 5 | 30.03.23 | Copy of email from complainant to Daniel Whittle 30 March 2023 00:08 with redaction of email address | C | VD M | |
| 6 | 31.03.23 | Document titled Annexure E from NSW Health dated 30 Sept 2022 | Accused | F | VD 8 |
| 7 | 03.04.23 | Handwritten document bearing heading “Appellant’s Submissions” | F |
Evidence was led from Constable Daniel Whittle, the current officer in charge of the matter on 28 March 2023 from page 48, on 29 March 2023 from page 88 and on 30 March 2023 from page 141.
Information was provided by Mr Aloysius Robinson from Legal Aid NSW on 29 March 2023 at page 68 of the transcript. He produced documents but did not give evidence upon oath of affirmation. He returned on 29 March 2023 and is recorded from page 119 of the transcript where it is asserted that he was on his former oath. This is an error in the transcript for he was not required to give evidence under oath of affirmation regarding the matters to which he spoke. The Crown expressed reservation about whether Mr Robinson ought to be compelled to do so in light of the role he played in Legal Aid, to which Mr Robinson added that he was authorised to provide limited information and that it might be necessary to take advice about his position. The discussion is at page 69 of the transcript. As the issue evolved there was nothing controversial regarding the accuracy of the information provided and any need for any sworn evidence from Mr Robison evaporated.
Subsequently after extended discussion regarding the decisions not to grant legal aid to the accused Mr Robinson returned to provide further information. This was on 29 March 2023 at page 119 of the transcript.
On 30 March 2023 material was provided by the accused’s trustee in bankruptcy, Mr Paul Gerard Weston. His sworn evidence commenced at page 128 of the transcript.
The accused gave evidence on 30 March 2023 from page 154 in which he adopted his representations formulated in the forms of unsworn affidavits that he prepared outside of court hours. These were marked as exhibits. He was cross examined until the end of the day and resumed the witness box on 31 March 2023 commencing at page 175 of the transcript. To fill the void left in the evidence upon which he relied he returned to the witness box on that day, adopting as true and accurate his further document which I marked as an exhibit. The Crown did not cross examine on this.
Thereafter the Crown addressed, followed by the accused after the luncheon adjournment.
I adjourned the court for the weekend and upon resumption on Monday, 3 April 2023 the accused presented a further document with a blend of fact and submissions upon which he intended to rely. This was marked for identification, MFI 7, and thereafter I adjourned to consider the questions before me. I delivered my interim judgement on Wednesday, 5 April 2023, to allow the accused to pursue his expressed intention of having an adverse decision reviewed by an appellate court.
Interspersed with the evidence adduced speaking to the impecunious circumstances claimed by the accused, his status as an undischarged bankrupt, and the rejection of his applications for legal aid, were two additional issues both of which were resolved.
The first of these was to do with communications by the complainant as a protected confider recorded by those who provided her with assistance. When considering the material that her representative sought to be protected from disclosure I was informed that the complainant no longer wished to deny the accused or the Crown access to these records subject to orders protecting from disclosure generally the material that would have otherwise been denied to the parties. Consequently I made orders as follow:
(1)Ms Pietrini appears for the protected confider.
(2)Material has been produced on subpoena by the NSW Legal Aid Commission (Bundle S-2)
(a)Grant first access to the accused
(b)Accused has no objection to the Crown’s access
(c)Bundle S-2 returned to the court file
(3)Pursuant to s 7 Court Suppression and Non-Publication Orders Act 2010, the publication or other disclosure of information tending to reveal the identity of or otherwise concerning [the complainant]., also known by the family name [REDACTED], the complainant in proceedings, is prohibited.
(4)Pursuant to s 126E(b) Evidence Act 1995, there is to be no publication of the evidence given by [the complainant], also known by the family name [REDACTED], the complainant in these proceedings, that relates to any “protected confidence” as defined in s 126A(1) recorded in the notes made in respect of the complainant at the Cumberland Hospital, produced to the Court in these proceedings.
The other issue, perhaps more correctly issues, and upon which the accused initially sought to rely in support of his application for the stay, was to do with the omission from the Crown material of evidence of the communications between the accused and the complainant which the accused said would contain exculpatory material, in the absence of which he suffered prejudice. This summarises his position which he put forward in greater detail when this issue was alive. The police had difficulty using their technology interrogating the telephones they had seized in the investigation. The officer in charge, Constable Whittle, continued in his role preparing the matter for trial guided by the Crown and recovered from the complainant records from her telephone that were stored in “the Cloud”. Further statements were taken from the complainant and the information there stored recovered and as I understand matters was provided to the accused, with supplementation as further material came to hand. There may yet be an argument about some of this material, but at the present this issue appears to have evaporated and there was no need to bring the accused’s concerns to account when deciding whether to grant his application.
One of the reasons advanced by the accused in support of his argument that he is not capable of conducting his trial is his state of health. He relies upon evidence tendered before Judge Huggett and which was presented to me during this voir dire.
Consideration
The Accused’s Health
Exhibit three before Judge Huggett includes an affidavit sworn by Isabella Viney from the Office of the DPP annexed to which and marked E is a report from Ann-Marie De Santa Brigida written on 9 November 2022. Before this report there was an initial report of 8 January 2019, followed by treatment reports on 2 September 2020, 17 November 2020, and 12 May 2022.
There was an initial assessment on 7 January 2019 followed by treatment consultations on 12 August 2019, 22 August 2019, 3 October 2019, 29 October 2019, 7 November 2019, 22 May 2020, 25 August 2020, 29 August 2020, and 16 November 2020.
This report was prepared for a barrister, when the accused was seeking parole from his current sentence. The use to which the report is put in these proceedings is to support the application for the stay of the proceedings, upon the premise that he is not capable of conducting his trial without the assistance of an advocate.
The psychologist drew upon her clinical assessment and the Personality assessment Inventory, and the opinions of psychiatrists Dr Olav Nielssen and Dr Anthony Henderson, adhering to her view previously formed that the accused is afflicted with Bipolar II Disorder. A treatment plan is offered in anticipation that parole will be granted.
A second report included provided by this psychologist written on 12 May 2022 prepared against the background of the charges the subject of this trial includes his proposed management in the community of granted bail. This appears to be the reason the report was obtained. The report includes the opinion that the accused suffers bipolar disorder but has a good understanding of the condition and is motivated to pursue treatment. His difficulties in custody, with solitary confinement and depression are discussed.
There is a report from Dr John Albert Roberts written on 10 April 2022 upon a teleconsultation on 14 March 2022. This report alludes to an alleged sexual assault suffered when the accused was in school, and the diagnosis by Dr Nielssen and by Dr Henderson of bipolar disorder. His history of psychological treatment from 2014 was discussed with the accused. This also revealed preoccupation with perceived defects or flaws in his physical appearance consistent with a Body Dysmorphic Disorder. Connected with this was the accused’s resort to testosterone supplements with resultant aggressive behaviour.
Dr Roberts elicited a comprehensive array of facts and circumstances, albeit by way of a less than ideal medium, but which did not appear to impede the task. The Overview and Psychiatric History includes reference to the bipolar disorder, the accentuating impact of post-traumatic stress disorder arising from his experiences in school in respect of which there is reference to pleadings by way of a Statement of Claim, and the additional impact of his resort to steroids to address the Body Dysmorphic Syndrome. Nonetheless, Dr Robert noted at page 11,
His current mood disorder is well controlled with current medication such that his mental status in terms of mood and affect is within normal limits, however his account of symptoms relating to body dysmorphic syndrome remains a source of concern for him.
The Crown did not require any of these authors for cross examination and did not offer any challenge to the opinions they gave. Indeed, when one considers the allegations against the accused in this trial they might have characteristics that resonate with the opinions expressed.
However, I am not persuaded that the findings offered are sufficient to conclude that the accused could not conduct his trial. I have watched the accused though the proceedings so far and he presents in a manner entirely consistent with the opinion quoted from Dr Robert’s report.
There is no aspect of his current presentation that cause me concern about his capacity to conduct this trial without the assistance of a lawyer.
The accused was asked questions about his present regime of medication in the course of cross examination on 31 March 2023 at page 183 line 40.
Q. How many days have been now currently at Silverwater?
A. Since the 24th or 25th ‑ since 25 March 2023.
Q. Saturday, last Saturday.
A. Correct.
Q. It's almost a week today.
A. Correct.
Q. In that time, have you asked to see any nurse or psychiatrist or any medical staff?
A. I've asked to see the nurse, yes.
Q. Have you been given access to nursing staff?
A. It's a bit difficult where I'm housed at.
Q. Could you just answer the question first? Have you been given access? Have you seen a nurse or doctor?
A. I've seen a nurse. The short answer is I've seen a nurse, yes.
Q. Have you expressed any concerns about any aspect of your medical health to that nurse?
A. Yes, I have.
Q. What area? If it's private, please tell me. I'm obviously talking about primary about any significant matter that you think might affect your running of the trial.
A. That's okay. I'm willing to disclose that information. So I asked to see the nurse for three reasons. The first reason was they've got a green card placed outside my door cell, which means frequent, every hour, the officers come to my door, turn on the light or flash the torchlight to see if I'm awake. Only inmates that are a threat of suicide or similar have to have that green card, so I said to them; I have court; can I please not have the light flashing in my face every hour, and the nurse that I seen is only the nurse that delivers pills to the cells neighbouring my cell, and that nurse said she'll put a request so a nurse could come and see me. The second issue is my back medication I was receiving at Kempsey has discontinued whilst I've come to Silverwater. I've received it only once.
Q. Can you say what that medication is?
A. The Panamax Co.
Q. Panamax.
A. Yes.
Q. That's not an opiate type‑‑
A. No, and Nurofen, so just gives me ‑ and also they've given me magnesium every night, and I've told them I've already got the pack of 30. There's no need to give me extra every night. I didn't mention anything about mental health, purely because the last time I've mentioned it was I'm on the waiting list, and, I mean, it's a process that you tend to learn in gaol, when you put your name you have to trust that this is ‑ what you have to do is allow the process to play out, so I did not mention anything about mental health to them.
Q. I suppose in a nutshell ‑ you may have already answered this; what I'd like to know is whether you believe that you're taking an medication that you need to take at the moment to stabilise your mood.
A. No, I'm not on mood medication. I've been requesting that for some time, but it's not an easy type of medication to get in custody, as I've been told.
Q. What have you had before? What have you taken to stabilise your mood?
A. What was assisting me before was Epilim and Seroquel. I know Seroquel has been discontinued in the custody. Endep is not a mood stabiliser. I've had Endep before, but the issue with Endep was that it's for anxiety, so it calms you down and puts to you kind of to sleep, but because it was supervised I couldn't take it at that time because I had AVO or court proceedings, and it would make me drowsy, and I didn't like that drowsy feeling, and it was only supervised at that time, so I couldn't take that medication, hence my request to go back to another medication.
Q. You made that request before you came to Silverwater.
A. Yes, that request was made on 24 January 2023 at page 10. So in the first column of page 10, it says, "Discussed with CD and agreed" ‑ that's the first line of page 10, paginated page 255. The first column says, "Discussed with CD and agreed to recommence to 10mg Endep". Now that Endep should be Avanza, which is a psychiatrist medication. Then, on 24 January, the Endep was provided, then I said to them, "This is the anxiety medication. I don't want this one. Can I please speak to a psychiatrist ‑ can I have Avanza?", and they said that's only through a psychiatrist, and the second column says, "I've requested Endep and wishes to be seen by psychiatrist prior to taking any medications." So that's when I mentioned I want to see the psychiatrist about the medication that the nurses are going to provide."
Q. You challenged the proposition that there was no explanation given by you for the decision that's there reflected on 24 January 2023.
A. Is that where is says ..(not transcribable)..
Q. The entry on 24 January 2023 includes, "Nil explanation given by the patient for this decision." That seems to be in contrast to what you're presently saying to me.
A. Yes, I agree with your Honour. I was quite vague to the nurse from memory that ‑ with Endep, I said this is not the right medication, then I called the Mental Health line on 2 February, which says here on the third paragraph and explains my reaction to Endep in that phone call.
The opinions to which I refer and this portion of the accused’s evidence reflect the material provided from Justice Health confirming the mental health issues that afflict the accused. Aside from accused’s criticism here there is no evidence upon which I could find that his care is inadequate or otherwise comprised in custody.
The Accused’s Impecuniosity
It is uncontroversial that the accused was denied legal aid and was unsuccessful in his appeals from the initial decisions rejecting his applications. It is also uncontroversial that he is bankrupt. Legal Aid NSW do not accept that he has been full and frank when informing them of his circumstances and responding to their requisitions for further information. The trustee in bankruptcy is also doubtful that the accused has been full and frank regarding his circumstances and access to funds.
It is not for this court to embark upon an investigation of those findings and the reasons behind them. It is the fact that the accused is denied access to funds that is significant.
My analysis of the accused’s evidence, and the material produced by Legal Aid NSW and the accused’s trustee is undertaken upon the understanding the accused bears the onus of proving that he is indigent: Cranston v R ibid.
The material from Legal Aid NSW, Exhibit Three in the voir dire, includes a letter to the accused on 2 February 2023 with the history of his applications and the request for further information, against the acknowledgement that he had provided new information allow for reconsideration of his application. This prompted a partial response via email from the accused’s sister, who I am told is a solicitor. The accused complains that it is unclear what further information might be sought by Legal Aid, however my reading of their letter suggest that what was needed was clearly sought against the history of the interactions with the accused.
The evidence from Mr Weston in response to the accused’s cross examination included the following exchanges – beginning at page 129 line 7:
Q. Could you confirm that all my assets have vested with the trustee?
A. Yes, I can.
Q. Could you please confirm or deny that I have control over any of my assets or the trustee's assets?
A. None that I am aware of.
Q. Are you able to say over the past two and half years, and up to date, whether I have been solvent or perhaps insolvent or..(not transcribable).. insolvent.
A. At the day of your bankruptcy, you were clearly insolvent. In relation to your activities from a financial perspective since the date of bankruptcy, I cannot attest to the fact that I am aware of everything that has occurred there. That is not my domain. If you do acquire property, assets, whilst you are undischarged bankrupt, and you are undischarged at this point until, I think it is, May 2026, those assets will vest in me. I'm not aware that you are in possession of any, but I cannot attest to the fact that you are not.
Q. Yes, that's clear, thank you. Would you also confirm that any potential cause of action that I might have also would vest with the trustee.
A. That's true.
Q. Including shares of companies.
A. That's correct.
Q. Are you able to confirm whether, over the past two or two and half years, I had initiated Federal Court proceedings where I was the applicant? Are you able to confirm, during that period, whether I was represented or unrepresented in the proceedings?
A. I'm not aware of what proceedings specifically you're referring to, Mr Mehajer. I'm aware that you've instigated quite a number of proceedings, some represented, some not represented by lawyers. I cannot attest to all of those.
Q. From the best of your recollection, I'm just referring to the period of the past two years, that is, December or January 2021 to date, do you recall of any representation by myself during that period?
A. I do not recall.
Q. Do you recall earlier this year, on or around January 2023, that Federal Court proceedings had to be discontinued by myself on the basis that it was overwhelming to satisfy with the Court orders absent resources available to me from custody?
HIS HONOUR: Just before you answer that Mr Weston, Mr Mehajer, these would be a matter of public record in the proceedings to which you refer. Whether Mr Weston knows this or doesn't know this are really matters of little moment, aren't they?
ACCUSED: Your Honour, the point where I'm trying to get at is I was facilitated with a notice of discontinuation from the trustee's office in order to discontinue those proceedings, and that's what I was leading to.
HIS HONOUR: Maybe if you get straight to the [point], and then we can flesh it out if there's a need.
ACCUSED: So I'll withdraw the last question.
Q. The next question was are you aware of your office facilitating with providing me with a notice of discontinuation of the Federal Court proceedings due to the fact that I had no access to resources or application forms from custody?
A. Mr Mehajer, I believe you're referring to your appeal to the decision of the AAT, and in relation to that particular matter, I am aware that you wished to discontinue those proceedings earlier this year, and you advised the Court and myself at the time that you did not have access to the necessary documents and, as a courtesy, we provided those documents to you, yes.
Q. Just the last topic is‑‑
HIS HONOUR
Q. Sorry, just so we're clear, the documents to which you refer, Mr Weston, are they our documents for the purposes of the discontinuation of those proceedings?
A. Yes, your Honour.
ACCUSED
Q. Are you aware of an article, that is, a press or media article written about me on or around year 2020 about either myself or a family member having US$20 million overseas?
A. I don't recall the articles that I read, Mr Mehajer. I don't recall that specific one.
In response to questions from the Crown, Mr Weston provided the following further evidence, from page 131 line 3,
Q. I'm somebody not familiar with sequestration law, bankruptcy law generally. Could you just enlighten me and enlighten the Court what if any obligation has Mr Mehajer had, for instance, in the last 12 months to report anything to DW Advisory in relation to any loan agreements that he enters, whether it be for legal fees or any other purpose, and is there a cut‑off limit applying to that kind of disclosure; in other words, if he sought to enter into a loan with somebody for ‑ I'm just talking hypothetically ‑ say for $100,000 to obtain legal assistance, is that something that he would obliged to notify his trustee in bankruptcy of?
A. No, he is not required to advise me. What he is required to do is to advise the party with whom he is entering into a credit contract that he is an undischarged bankrupt.
Q. Other than the reports that you've mentioned, the last of which is dated 31 May 2021, are there any documents that you are able to disclose to the Court, obviously that you don't believe are touched by or covered by a sensitivity or privilege, that reflect any further developments in relation Mr Mehajer's assets and/or liabilities in that period since May of last year?
A. Since May of last year?
Q. Sorry, May 2021, my apologies.
A. 2021. I'm not sure offhand, unfortunately I can't directly answer that question. There are numerous documents that run to the financial affairs of Mr Mehajer, but that's a period that covers almost two years since our last report to creditors. We have continued to do significant investigations as we are preparing to do examinations of a number of parties in the months ahead. Those documents actually are being served right at this particular juncture, and along the way we have received significant documents and continue to receive significant documents in support of our proposed examinations, and a lot of them go to the financial affairs, or what we suspect to be related to the financial affairs of Mr Mehajer.
Some of the documents we have received have been supplied with the assistance of the Australian Taxation Office, and all those documents were required to be vetted by the Australian Taxation Officer before supplying them to me as part of our investigations. The Australian Taxation Office is in fact funding me for these examinations, and a lot of those documents cannot be generally supplied to other parties. I hope that at least attempts to answer your question, sir.
Q. Yes, thank you. In the course of various bits of information being provided to the Court, primarily through affidavits over the last ‑ certainly over the last approximately 12 months, two properties, the potential dealings with two properties have been mentioned, one being at 1 Ann Street, Lidcombe, and the other being at 15 Frances Street, Lidcombe, which I understand vest its ‑ at least at some stage ‑ in one or other members of Mr Mehajer's own family. Have you been kept abreast of developments in relation to the disposition of those two properties over the past 12 months as a trustee in bankruptcy?
A. Yes, I am aware generally of what is occurring with those two properties. The position is that I understand that the secured creditor, the National Australia Bank, has taken possession of one or both of those properties with a view to realisation. They are heavily incumbent. There is no equity available to the benefit of the bankrupt estate and creditors of the bankrupt estate, and that is why I am just taking a monitoring role on that position. But that's pretty much the limit of my knowledge of what is happening at the moment.
The accused gave evidence in response to the Crown at page 156 from line 42,
Q. Now, if you don't get out of custody between now and whenever this trial was listed again, if it doesn't start this or next week, you have made it plain in previous affidavits, have you not, that it is very difficult, if not, impossible for you to raise funds whilst you're in custody. Correct?
A. That is correct.
Q. You have asserted on more than one occasion in previous affidavits before various courts that you believe if released from custody though, you would be able to raise loans or either loans or gifts from people for legal representation for one or more of your trials. Is that correct?
A. Yes, potentially.
Q. Potentially?
A. Potentially.
Q. I think in one affidavit this year, you indicated that not having your phones was particularly problematic because you would need your phone to ‑ at least one of your phones to access people who might provide gifts or loans. Is that a fair statement?
A. Yes, that was mentioned from 2021 initially and I kept repeating the issue up until recently ‑ 2022 perhaps.
Q. But you have managed to raise some money for legal representation since being placed in custody in November 2020 albeit not enough money, not of the amount that you've estimated at $52,000 to run a trial like this. Correct?
A. Not correct to the point that it wasn't myself that was the borrower of that loan. It was a third party.
The cross examination from page 157 elicited from the accused responses regarding various transactions and arrangements whereby he directly or indirectly had funds provided for the pursuit of bail in the District Court and the Supreme Court.
The transactions and relationships between individuals and corporations explained by the accused and their sequence were complex. In light of the concessions made by the Crown I do not intend to here embark upon an analysis of the accused’s representations regarding the accused’s claim of indigence for ultimately it is not the reason for which I have decided to refuse the application for the stay of the trial.
The Crown Submissions
The Crown submitted a number of points upon which it urged the court to refuse this application.
The Crown conceded that a text communication between the accused and the complainant asserting that he had $20,000,000 secreted overseas ought to be disregarded. This information became known from further enquiries by police in preparation for the trial which revealed text messaging in which the accused informed the complainant that he had this amount of money secreted overseas. With reference to the accused’s explanation for this, without suggesting whether the court would accept the explanation, weighing its utility as evidence on this application, if the Crown wished to rely upon it the ought to call the complainant for her evidence and cross‑examination. I agree that this is so, and that the issue cannot be resolved in this application upon the present state of the evidence.
The Crown addressed first to allow the accused to have the structure of the Crown’s arguments against the application.
The Crown referred to Craig v South Australia [1994/1995] 184 CLR 163, concerned with certiorari jurisdictional error, the central factual issue in the trial leading to the appeal involving facts comparable to the situation in Dietrich ibid. At pp 183 and 184 the Court considered trial judge's remarks about indigence and said toward the end of p 183:
The decision of this Court in Dietrich v The Queen established that in a criminal case where an unrepresented accused is facing trial for serious offences, the trial judge has power to make an order staying the proceedings, if in the circumstances of the case it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment, Mason CJ, and McHugh J made the following comments as reflecting their approach and that of the other majority justices:
'… we identify what the majority considers to be the approach which should be adopted by a trial judge who's faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence, who, through no fault of 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.'"
The Crown posed five interrelated questions,
(1)Is the accused indigent in the sense referred to by the High Court?
(2)Are the charges serious?
(3)Is the accused unable to obtain legal representation?
(4)If so, is it through no fault of his, assessed upon the reasonableness of the accused‘s conduct in all of the circumstances, not extending necessarily to gratuitous or unreasonable conduct by which the accused is the author of his own misfortune?
(5)Are there exceptional circumstances which nevertheless militate against allowing an adjournment or stay to rectify the absence of representation?
The Crown submitted that what was meant in Dietrich ibid was not that exceptional circumstances should exist before an accused is granted a stay, but that exceptional circumstances should exist before the trial proceeds without representation, despite indigence or lack of representation.
The Crown submitted that whether the charges are serious should also be considered as one of many relevant factors when assessing whether there are exceptional circumstances. The Crown referred to the accused's bipolar diagnosis, his comfort generally, that he is in custody, and difficulties he might have in the trial, his level of intelligence, and his ability to advocate his cause, which he must do if unrepresented.
The Crown argued further that the seriousness of the charges was connected to the degree of complexity of the case for the analysis whether there are exceptional circumstances.
The Crown submitted that it is not of itself unfair if an accused is unrepresented in his or her trial. Whether it is unfair must be assessed upon the synthesis of relevant considerations from the circumstances of the accused.
The Crown noted that ordinarily charges of assault contrary to s 61 Crimes Act 1900 are resolved in the Local Court and fall at the lowest end of the range of offences tried upon indictment. The offence of intimidation contrary to s 31 Crimes (Domestic and Personal Violence) Act 2007 with a higher maximum penalty than specified for common assault would also be dealt with in the Local Court more than upon indictment. This is less so for the offence of assault occasion actual bodily harm contrary to s 59(1) Crimes Act 1900, and even less so for the offence of intentional suffocation contrary s 37(1) Crimes Act 1900. The Crown submitted that although the authorities do not suggest that offences dealt with summarily are of the type that would be considered as serious for these purposes, it would concede that the offence charged in count seven would within the overall context of the conduct be considered serious misconduct to be brought to bear in the assessment of whether the accused ought to be represented in the trial.
I agree with this but when one analyses the alleged conduct across the entire context in which it occurred and the evidence anticipated speaking to the individual acts upon which the charges are framed, including count seven of course, I am not persuaded that the trial is complex to the extent that the accused could not with his demonstrated competence represent himself.
The Crown submitted that the accused’s right for which Dietrich ibid is authority is not a right to representation, but the right to a fair trial, which in the particular circumstances of a given case might require that the accused have legal representation.
The Crown noted from the Cranston trial in which Beech-Jones CJ at CL presided that the accused’s mental health led to fitness proceedings in which medical opinion offered was to the effect that the accused’s mental health would not have been so much of a problem if the trial were not so complex. Amongst other considerations the length of the trial was a matter of concern. The Crown submission with which I agree is that this is not such a case.
The Crown drew upon the decision in Cranston ibid offered the analysis provided by Beech-Jones CJ at CL for the submission that the accused in this trial had not discharged his burden of proof upon the balance of probabilities to establish that he was indigent in sense contemplated in Dietrich ibid.
The Crown referred to the material provided by Mr Robinson from Legal Aid NSW, which is not before the court as evidence, other than by way of the documents provided by him and marked as an exhibit. This led the Crown to focus his submissions upon the accused’s evidence and responses in cross examination for evidence upon the status of the legal aid applications and the evidence from Mr Weston regarding the accused as a bankrupt.
The Crown spoke of the significance of the evidence of Mr Weston to meet the claim that the accused is indigent. The Crown referred to the report 31 May 2021 produced by Mr Weston, demonstrating the accused’s financial circumstances two years ago, when he was in custody (since 27 November 2020) without any direct source of income, unemployed, leaving no positive evidence that the accused has assets or cash presently available to him which he could put towards legal representation. This notwithstanding, the Crown submitted, the question whether the accused has proven to the Court that he does not have access to assets or money or loans, remains.
The Crown submitted that the evidence does not show a change in circumstances from the date of the report, which at page six included,
"The bankrupt has been uncooperative in dealing with his officer, and as a result, his conduct has caused a significant blowout in the costs associated with the proper administration of the estate."
and
"In my previous reports I advised creditors that I formed the view that the bankrupt's SOA (Statement of Assets) was incomplete and inadequate. Despite the deficiencies, the bankrupt's SOA was nonetheless accepted by the OR. Throughout the administration of the estate, I have on numerous occasions directed the bankrupt to produced records and information pertinent to his examinable affairs, and the bankrupt has failed to provide any meaningful response."
The Crown referred to page seven,
"As mentioned in my previous reports, I claimed an amount of 3,500 from the bankrupt's bank account operated with ING Bank, which was deemed as property under the Act. The bankrupt has previously asserted in court appearances and affidavits that he holds cash in the sum of $65,000. I have on a number of occasions directed the bankrupt to deliver up all cash in his possession or control, but he has failed to do so. Throughout the administration, I have been liaising with the police, who have been advised that on several occasions they have identified the bankrupt as having significant amounts of cash in his possession. These attendances by the police on the bankrupt occur from time to time as a result of the bankrupt's bail conditions prior to his more recent incarceration.
and
As a consequence of the information provided to my officer by the police, they were requested to seek any cash in possession of the bankrupt in their future attendances at his premises. In March 2020, the police seized the sum of $6,530 from the bankrupt's then residential address at Kirribilli premises and passed it onto my office for the benefit of the estate."
The report referred to the accused’s assertion that the funds belonged to Zena Osman and Mehajer Vision Pty Ltd and at the final paragraph under the heading of cash, including cash at bank,
"In the absence of any satisfactory evidence being provided by the bankrupt or any other party, the funds were claimed as property for the benefit of the estate."
The report dealt with properties in which it appeared the accused had interest, namely, 14 Frances Street, Lidcombe and 1 Ann Street, Lidcombe, and provided details of bank accounts.
The Crown referred to page ten under income contribution assessment,
"Throughout the administration of the bankrupt's estate, the bankrupt has been unemployed and currently incarcerated. My investigations to date have identified the following: The bankrupt …has been involved in various legal proceedings and had legal representation in most of these proceedings. The bankrupt has received advances from associated entities. The bankrupt has had use of luxury motor vehicles registered in the name of associated entities. For a period, the bankrupt had been residing at 33/48 Upper Pitt Street, Kirribilli, and rental expenses were being paid by an associated entity. From time to time, the bankrupt has been in possession of large amounts of cash. Despite numerous requests, the bankrupt has failed to provide me with details of benefits received for the duration of the bankruptcy. After consultation with my lawyers, given her involvement and knowledge of the legal proceedings involved in the bankrupt, I assessed the bankrupt for income contribution purposes with respect to contribution assessment periods (CAPS) 1 and 2 as follows, based on the benefits received."
The report thereafter set out amounts assessed, and then indicates that after further intervention by the bankrupt, himself having made an application to the Inspector General in Bankruptcy, and a reassessment in relation to those amounts.
This material is drawn from Exhibit Five in the voir dire.
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.
The Crown conceded that the portions of the report read could not prove that Mr Mehajer has secreted money or assets outside of the reach of the trustee in bankruptcy, but they challenge the accused’s evidence that he has not parked money elsewhere, and the court would not accept that assertion or that he has no assets available to him.
The Crown referred to the medical evidence by way of the material originally before Adams J in the Supreme Court for the determination of the detention application. The medical evidence is not disputed by the Crown. The Crown referred to the material provided by the accused marked Exhibit 4 on the voir dire, including the annexed report of Dr Henderson of 9 September 2020 at paragraph 6.4 where he wrote,
"Although I am not able to determine Mr Mehajer’s mental state at the time of the alleged offending behaviour with any degree of certainty, it appears he had been emerging from a predominantly depressive phase of illness related to his marital breakdown and business related stress and entering a phase more characterised by hypomanic (sic) mood states with report that his family was worried about his erratic behaviour, impulsive spending and debt accumulation. Should it be accepted that Mr Mehajer was in a mood elevated state at the time of the alleged offending, I am of the view that he would have been experiencing a degree of grandiosity with an exaggerated sense of his own abilities, talents and importance, whereby he would have been prone to exaggerating or embellishing his role as a building developer and manager. I also believe Me Mehajer is likely to have been invested in beliefs that supported his goal directed purpose and, at the same time, impulsive, disorganised and inattentive to details. I am of the view that Mr Mehajer's mental illness could account for the errors, poorly chosen words and misleading information he provided in evidence, given hypermania is almost universally associated with a lack of insight and often compromised judgment. I'm also of the view that Mr Mehajer is probably not aware that he was making exaggerated or misleading statements or that he was aware of wrongdoing at the material time."
The Crown conceded that this requires caution when assessing the responses by the accused to cross examination.
The opinion upon its face is given in respect of conduct other than that which is before this court. Moreover, throughout the proceedings so far with the opportunity I have had to observe the accused’s demeanour when observing the evidence, addressing the court, providing his documents, and responding to cross examination, there was no evidence of hypermania, or exaggeration. I do not accept that the opinion offered on 9 September 2020 impacts upon my assessment of the accused in these proceedings to the extent that his presentation here was thereby comprised. The relevant report is found in Exhibit Four in the voir dire and the passage is drawn from the last page of the report.
I agree with the Crown’s observation that the accused presented calmly and carefully and in a considered manner and responded logically to each question put to him.
The commentary by Dr Henderson was in response to the question, "Is there any link between Mr Mehajer's condition and the circumstances of any alleged offences, including any effect on his state of mind at the relevant times." The response referred to "errors, poorly chosen words and misleading information provided in evidence", and noted that the doctor "could not form an opinion as to his mental state at the time of the alleged offending behaviour with any degree of certainty …"
The Crown submitted and I agree that there is no evidence or any indication that the accused’s mental health is not presently managed adequately.
The Crown referred to the transcript of the accused’s cross examination from page 159 and following dealing with the various payments made to senior counsel, and senior junior counsel, in the pursuit of bail and the transactions from which the accused asserted the funds emanated.
The facts elicited included three transactions from an entity described as ACE company, for a total of $36,000 to $40,000 over six months, that the funds came through a law firm leaving as much as $30,000 for his sister Ms Osman for those purposes; his assertion that he had a Legal Aid application on foot at the time and therefore did not consider closely what she had available to her then; his assertion that he was not hiding this information from Legal Aid and that he would have informed them that he was attempting to raise private funding at the same time and paying privately for representation in his pursuit of bail. The Crown submitted that this was evidence of the accused, in conjunction with his sister, deploying resources to obtain release on bail rather than devote them to the contest in respect of which bail had been denied.
Implicitly at least, the Crown contention included that the nature of this funding was curious in the circumstances. The Crown pointed to the rendering of an invoice to Legal Aid for counsel for an application for bail which on its face coincided with the transactions to which the accused was taken from which funds were available for this purpose. The Crown referred to the report from Mr Weston earlier discussed, and the request by Legal Aid for further information to support the application.
The Crown provided an analysis of this material against the background of the proceedings in pursuit of bail, granted in the District Court but later revoked in the Supreme Court, and representations by the accused’s sister to Legal Aid NSW to the effect that he had exhausted his resources.
The Crown noted that there was no evidence from the accused’s sister, Ms Osman, as to what dealings she had with ACE Constructions, whether or not $30,000 or $40,000, or more was available or could be made available for this trial of limited length, and for which such a fund would be sufficient the Crown suggests.
The Crown conceded that the evidence showed only $20,000, approximately, in cash came to Mr Mehajer for legal representation in the bail applications, but nevertheless this is significant when considering whether he has endeavoured to avail himself of representation for this trial. The Crown submitted that he chose the course leaving him presently unrepresented.
The Crown acknowledged that the evidence was clear that the accused is presently unable to arrange legal representation in this trial through Legal Aid.
The Crown referred to the passage at page 184 in the decision in Craig ibid, and the question whether his predicament is through fault of his own. The Crown submitted that this phrase was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay and that what was in contemplation was a test focused on the reasonableness of the conduct of an accused in all of the circumstances; excluding situations in which in which it could fairly said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune. The words used were not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault of the part of the accused.
The Crown conceded that the court might not be able to determine upon this point ultimately. The Crown conceded that it might be said that the accused was entitled to use private money for the pursuit of bail.
The Crown identified as the crucial issue, whether there are exceptional circumstances which militate against an adjournment to rectify the absence of representation. The Crown submitted that there are exceptional circumstances warranting this trial proceeding without legal representation. There is this trial and others pending later this year, all of which have had to be vacated previously. As matters stand the accused will not be represented in any of the trials if his financial circumstances do not change. The decision now required must be reached upon the understanding that these trials must proceed this year with the accused unrepresented unless each trial judge makes an order vacating the trial because he is unrepresented. This the Crown submits is the overall picture and relevant to my decision.
The Crown pointed to the contrast between this relatively simple trial and the far more complex and lengthy trial faced by Mr Cranston before Beech-Jones CJ at CL. In this trial the verdicts will turn upon the evidence of the complainant supported by medical evidence and evidence of complaint. The accused participated in a lengthy ERISP of which it is said that the investigator fairly took the accused to each allegation which he denied and in which he made comment about the complainant and her medical history. The Crown referred to tactics counsel might adopt when cross examining the complainant which might include a conservative approach to control the extent to which she might be tempted to repeat or embellish the allegations.
I do not agree that it is appropriate to attribute to the accused tactical considerations that experienced counsel might adopt.
The Crown conceded that there is no evidence the accused feigned any incapability or any incapacity to act for himself, despite the medical conditions that he suffers, and that although it will be more difficult without legal representation, given the lack of complexity in the matter, and despite the fact, that he must cross‑examine the complainant through an intermediary, he appears to be much better equipped than the average accused to represent himself.
I agree with this observation.
The Crown conceded that he might require breaks and assistance, which the court will provide him.
If the court ruled that the Crown should not make a closing address, the Crown would ensure that directions covered the necessary points the Crown might otherwise have raised but did not expect to argue against this in a case of this relative simplicity.
The Crown conceded that the evidence from his phones is not going to be available because the information cannot be forced from their contents. There is some prospect, according to the officer in charge, of the phones being triaged that is likely to take many months, perhaps not within this year.
The phones of the complainant it appeared might fill the void and enquiries regarding that continue.
The Crown drew attention to Brennan J Dietrich ibid at p 198 of the report of that case in 64 A Crim R,
"When the criminal jurisdiction is invoked for the purpose it is designed to serve, there is no abuse of process. The jurisdiction must be exercised in a way that prevents unfairness as far as possible, but it must be exercised. As a matter of constitutional duty, the courts cannot indefinitely adjourn a trial to force the provision of Legal Aid."
The Crown noted the very high burden on the court to guide the accused through the trial, and a higher burden on the Crown to be fair.
The Crown tendered the ERISP by consent: Exhibit N on the voir dire.
The Accused’s Submissions
I addressed the accused noting that I would not require him to tell me what the issues are in the trial according to his case, for he has no onus of proof in the trial. I reminded him that the onus of proof is on the Crown.
The accused objected to the tender of the ERISP on this application. He had not seen it for some time. He did not have a copy with him.
I suggested that live issues might be a reason for the complainant telling a lie, does he have some perception of a motive that she might have for making these complaints against him, whether, on any of the occasions when it's alleged these things are to have occurred, he could not have participated in that conduct because he wasn't there or he might have been elsewhere, hence alibi, whether he would want to give evidence before the jury, and whether there'd be any objection to the whole, or part of the content of the ERISP.
Cranston v R [2020] NSWCCA 143, which the accused sought was noted to be restricted. After the luncheon adjournment the Crown announced that it was unable to locate the judgement.
The accused was allowed the weekend to marshal his thoughts and make submissions on Monday 3 April 2023. He asked whether he had a right of appeal from my decision, to prepare himself. Discussion followed as to the arrangements he might need to pursue if the decision was against him.
When the proceedings resumed that day there was discussion about a document delivered directly to the Crown upon which instructions were to be sought from the Director’s chambers. The proceedings were thus delayed until 2:00pm.
The accused produced what he described were very rough written submissions of 31 pages. I marked these for identification, MFI 37. These were styled submissions but went beyond to suggest facts upon which there might not have been evidence. The Crown conceded that nonetheless I should attribute to them weight bearing in mind that the accused was unrepresented.
After the luncheon adjournment, extended until almost 3:00 pm because corrective services offices were not available to bring the accused to the court, the Crown provided for delivery to the accused further material in the form of a one-page statement from the complainant and additional material gathered upon the examination of her phone. I invited the accused to speak further if he wished. He initially declined but in further discussion he advanced the propositions hereunder after I indicated that if I did not accept that he had discharged his burden of proof upon the question of his alleged impecuniosity and indigence that I would proceed to consider the matter against the possibility that I might be shown to be in error in that respect. I referred to the aspect of the seriousness of the offences charged. I noted my perception that he was articulate with significant capacity to represent his interests in the proceedings reflected in the documents he presented and his oral presentation including responses to cross examination. I said that I wished to review the medial evidence once more. I asked if he wished to say anything further.
The accused accepted the opportunity and made the following points:
(1)His evidence viva voce was only about his financial position.
(2)He gave evidence in Federal Court proceedings where a vexatious order was made against him and where he was attempting to prove his solvency.
(3)He has never run a trial.
(4)Preparing affidavits and/or submissions as he did overnight was like an open book exam where he would look at notes, and highlight passages, but in a trial he would not have that capacity. He would need to be guided step by step, and he understood that the judge or the Crown cannot guide him in that regard.
I sought to assure the accused that he would have every accommodation that I would, as trial judge, give to any unrepresented accused. The transcript records that I said this was the first time I have had an unrepresented accused appear before me. This is not so. I either misspoke, was misheard, or there is a transcription error. I have had multiple proceedings in which litigants appeared unrepresented and I so informed the accused, confirming my enhanced obligation to ensure that he had every opportunity to put his case, and to the extent that he might misstate or not clearly state his position, I would, as I have done in other trials where there have been unpresented accused, make sure that his case was fairly put to the jury, if I come to the view that the trial should be with him representing himself.
I noted the Crown’s obligation to conduct the trial fairly, and that will extend to not addressing the jury at the end of the evidence, because traditionally the Crown might not do so when the accused is unrepresented. I noted that the Crown had acknowledged this already, and that I agreed with what he has said, namely, that it might not be appropriate for him to be addressing the jury attempting to persuade them of an outcome in the trial, bearing in mind you are unrepresented. I noted that this would not be my task either, but I would make sure that the argument upon which the Crown relies, concerning the evidence of the complainant and such other evidence that might be supportive of the Crown case that will be presented in the course of the trial, should be clearly understood.
The accused continued:
(1)He understood what I said, but that these matters would be simple for a judicial officer. He saw the processes as involving another language about which he complained previously to Judge Huggett.
(2)He has never run a trial, and there is a risk of conviction.
(3)He did not like speaking of his mental illness and relied upon the reports tendered. If I rule against him that will aggravate this issue. Matters can overwhelm him. There is much more than the complainant’s evidence that concerns him.
(4)As written in his submissions, that even if on paper it may seem to he is guilty, without providing a defence he will be convicted.
(5)The story regarding the complainant was not as simple as the Crown suggested. It was not as simple as a case to be assessed upon a word-on-word basis.
(6)He does not know how to cross examine.
(7)He is required to provide the intermediary with the questions for cross examination for which he is not adequate. There would be a challenge for him to listen the complainant’s responses and formulate additional questions that they might indicate as appropriate so that the intermediary might be given them.
(8)There remains the option of an application to the Attorney General which he did the day before.
(9)The adjournment by way of the stay of the trial would be for no more than twelve months.
(10)The Legal Aid material included a document that says if new information comes to light, they are willing to consider it. He emailed through a third party to Legal Aid yesterday seeking that they itemise each issue they have with the verification test, so that he can understand.
(11)He complained in terms that he was denied procedural fairness when the Legal Aid Review Committee reviewed the rejection of his application. He said he had no opportunity to address them.
Discussion followed upon the procedures in Legal Aid in which he maintained his complaint that he did not address them on the verification of facts relevant to his lack of resources.
The Crown Case
This is not a complex prosecution, though I do not overlook that all prosecutions before a judge and jury, regardless of the nature of the charges, will have a measure of complexity with which a lay person must grapple if they choose to represent themselves or must do so because of circumstances. When this occurs the court must meet the standards expected in the guidance required to facilitate the accused in the presentation of their case, to ensure that the trial is a fair one.
The allegations against the accused arose in a domestic setting. They are:
Count One
Assault contrary to s 61 Crimes Act 1900. When the complainant dressed to leave the home the accused saw she had a crucifix on her and asked that she remove it lest it cause him embarrassment as inconsistent with his faith. As they drove away, she noticed he wore a necklace consistent with his faith and challenged him for doing so when he would not allow her to wear cross. He responded with profanity and began to drive erratically and dangerously. The complainant was scared – she grabbed at the steering wheel – he grabbed her arm and continued through the traffic – he punched her head about ten times and abused her. They continued to a restaurant where the complainant continued to cry prompting the accused to tell her she was embarrassing him.
The complainant told her friend of the incident.
Count Two
Assault contrary to s 61 Crimes Act 1900. During An argument over the complainant’s conduct allowing others to enter the accused’s home and steal, and when the complainant was texting a message to her mother, the accused demanded to see her phone. The accused pinned the complainant to the bed and prevented her from moving. He pressed and squeezed her right hand in which she held the phone, thereby causing the glass screen to break. The complainant suffered pain in her right hand, scratched from the cracked glass screen. The accused searched the phone and wiped from it anything to do with him
Count Three & Count Four
Assault contrary to s 61 Crimes Act 1900 and intimidation contrary to s 13 Crimes (Domestic and Personal Violence) Act 2007. The complainant was at the accused’s home where he began to yell at her for searching on her Instagram account for information about her former partner, against the history of the accused following the ex-partner and attempting to meet him. She tried to have the accused calm down against the risk that neighbours would call police. The argument continued. He grabbed her by the arm and dragged her to the laundry from the lounge room. In the laundry he took her phone and held her against the wall, pushing her forearm against her chest. He was abusive and threatened to kill her mother, and then her, and even if in gaol he would send someone to do this. She apologised to calm him down. There were multiple threats of harm to the complainant’s family since this event
Count Five in the alternative Count Six & Count Seven
Assault occasion actual bodily harm contrary to s 59 Crimes Act 1900, assault contrary to s 61 Crimes Act 1900, and intentional suffocation contrary to s 37(1) Crimes Act 1900. At the accused’s home, where the complainant was staying but not sharing his bedroom. He became angry because there was an insufficient supply of bottled water in the refrigerator. The complainant retrieved her bag, before then prepared for her departure on such occasions, and went to find food before she left. The accused threw an item at her, striking her arm causing a dead feeling and pain. He took the keys to the car she used. The complainant went to her bedroom to use the toilet. He followed her, cornered her between the sink and the toilet suite, put a hand on her chest, she screamed, and he put his hand over her mouth and nose which stopped her breathing. He threatened to knock her unconscious. She feared for her life. She woke on the floor with the accused screaming to himself and banging his head against the toilet bowl. It took her half an hour to rise from the floor. He remained on the floor and refused to move. The complainant sent a Facebook message to a friend asserting what she had experienced.
The Crown included particulars of the messages between the complainant and her friend in the Crown Case Statement with the screen shots from her phone.
The complainant left and went to her mother’s home. She later attended a medical centre, a couple of days later, and reported her experience. The doctor attending recorded her observations. There are photographs of the complainant’s bruises included in the Crown Case Statement.
The Crown Case Statement deals with related or back up summary offences before the court by way of s 166 Criminal Procedure Act 1986 but there is no need to deal with those at this point in the proceedings.
The Crown case thus depends upon the evidence anticipated from the complainant, supported by evidence of her injury including as it appears in images captured of her and as assessed by a medical practitioner, and evidence of complaint. The Crown does not rely upon evidence for tendency purposes, but there might be evidence to demonstrate context relevant to the summary offences before the court by way of the s 166 Criminal Procedure Act 1986 certificate.
This is not a complex trial. I am satisfied that the accused has the capacity to effectively represent himself, assisted by the guidance I will provide for him as the trial progresses. I have already provided him with an oral summary of the matters of which he must immediately be aware and provided him with a document styled “The Conduct of the Trial” drawn from the Criminal Trials Bench Book. I marked this for identification, MFI Twelve.
My confidence in the accused’s ability to conduct his trial is informed by his oral presentation in court in the conduct of this voir dire, his questioning of witnesses called in the voir dire, his patent comfort as he sat in court to follow the proceedings, when he rose to address or challenge some aspect of the proceedings, and the quality of the written documents he provided day by day, including those in the form of unsworn affidavits. These were for the most part as I understood what he said to me crafted overnight for presentation when the hearing resumed the following day.
I note that he said on 12 April 2023 from time that he has difficulty because he cannot understand what I say. This I reject. He has not complained so at any time before then over the seven days to 5 April 2023 during which the voir dire was conduct.
Decision
As earlier indicated the accused has not discharged his burden of proof to show that he is indigent. As I indicated in the interim judgement, lest I be in error in that regard I would proceed to consider whether, regardless of his financial circumstances, and lack of legal aid, applying the principles in the authorities to which I referred, the trial should proceed.
Assuming for present purposes that the accused is indigent in the sense provided in the authorities, beginning with Dietrich ibid, I find that the charges are serious, considered in combination arising from a domestic setting, and resulting in the allegation of the serious offence charged in Count Seven. I accept the reality that the accused is unable to arrange legal representation. It is not for this court to review the decisions made by Legal Aid New South Wales to assess their merit. It is the fact that he was denied legal aid, and that his applications for review were unsuccessful that is important. I accept the Crown’s concession that I should proceed without finding that the accused was the author of his own harm. Although it does appear that he exhausted resources in pursuit of bail that might have been better applied to his trial, he was permitted to seek the relief he sought in the District Court and face the counter attack in the Supreme Court when the Crown succeeded in having his bail revoked. He should suffer no penalty from those decisions.
There are exceptional circumstances which nevertheless militate against allowing an adjournment or stay to rectify the absence of representation. The alleged offences were some time ago and ought to be resolved as expeditiously as possible. The accused may have his trial forthwith. He presents as articulate, with sufficient skill to present his case with appropriate guidance from the court in a trial that I accept will be presented by the Crown with appropriate fairness. I accept the Crown submission regard the existence of exceptional circumstances justifying this course.
I accept that there is no evidence that the accused is presently impaired from the mental health issues identified in the reports, prepared for other purposes in other related proceedings, and in the record from Justice Health. By all appearances, the regime of medication that is presently provided leaves him fit and well and in control.
Order
The orders made were as follows:
(1)The application for the stay of these proceedings until the accused is able to arrange representation by a legal practitioner for the conduct of the trial is refused.
(2)The proceedings are adjourned to Wednesday 12th April 2023 for commencement of the trial.
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Amendments
17 April 2023 - 17 April 2023 - Typographical errors corrected and NPO over identity of complainant specified.
11 May 2023 - Remove restriction as trial has concluded.
Change s 31 Crimes (Domestic and Personal Violence) Act 2007 to s13 Crimes (Domestic and Personal Violence) Act 2007
References to the complainant by her name has been changed to [the complainant] or redacted to protect her identity
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