R v Mehajer - [2023] NSWDC 98

District Court

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 (2) The proceedings are adjourned to Wednesday 12th April 2023 for commencement of the trial
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) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Craig v South Australia [1994/1995] 184 CLR 163 Cranston v R [2020] NSWCCA 143 Dietrich v The Queen [1992] HCA 292 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98 Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 McIver v R [2020] NSWCCA 343 R v Cranston [2020] NSWSC 469
Category:	Procedural rulings
Parties:	Rex (Crown) Salim Mehajer (Accused)
Representation:	Counsel: Ken Gilson (Crown Prosecutor) Salim Mehajer (Self-represented) Solicitors: Director of Public Prosecutions (NSW) (Crown)
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mehajer

Details

AGLC: R v Mehajer [2023] NSWDC 98
Case: [2023] NSWDC 98
Decision Date: 5 April 2023

CaseChat Overview and Summary

The matter of R v Mehajer was heard in a relevant court, where the accused faced charges related to domestic violence offences. The accused applied for a stay of proceedings, requesting that the trial be postponed until he could arrange representation by a legal practitioner. The application also sought for the court to consider his health and expenses in the decision-making process. The court had to determine whether exceptional circumstances existed that would warrant the trial to proceed without legal representation and if the accused's onus had been discharged in this regard.

The court considered the legal issues surrounding the accused's application to recuse himself from the trial proceedings. This involved assessing the accused's health and expenses, as well as determining whether exceptional circumstances existed that would justify the continuation of the trial without legal representation. The court had to examine whether the accused had discharged his onus of proving the presence of exceptional circumstances that would warrant a stay of the proceedings. The court also had to consider whether the accused's health and expenses were relevant factors in the decision-making process.

Upon reviewing the evidence presented, the court found that the accused had not discharged his onus of proving exceptional circumstances warranting the trial to continue without legal representation. The court held that the accused's health and expenses did not constitute exceptional circumstances in this matter. Consequently, the court refused the accused's application for a stay of the proceedings and ordered that the trial would proceed as scheduled. The court also adjourned the proceedings to 12 April 2023 for the commencement of the trial.

The court's final orders were that the application for a stay of the proceedings until the accused was able to arrange representation by a legal practitioner for the conduct of the trial was refused. The proceedings were further adjourned to 12 April 2023 for the commencement of the trial. The court did not find the accused's health and expenses to be exceptional circumstances warranting a stay of the trial proceedings.

Orders

Orders of the court

(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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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