R v Mehajer (No. 2) - [2023] NSWDC 151

District Court

New South Wales

Medium Neutral Citation: R v Mehajer (No. 2) [2023] NSWDC 151
Hearing dates: 10 May 2023
Date of orders: 10 May 2023
Decision date: 10 May 2023
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
1) I am not persuaded that it is not in the interests of justice for this court to deal with the related offences
2) The application to remit the related offences for hearing in the Local Court is refused.

Catchwords:
CRIMINAL PROCEDURE — Back up and related offences — Procedures

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Domestic and Personal Violence) Act 2007
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Supreme Court Act 1970

Cases Cited:
Maroubra Rugby League Football Club Inc v Malo & Anor [2007] NSWCA 39
McDermott v Collien (1953) 87 CLR 154
R v Belghar [2012] NSWCCA 86

Category: Procedural rulings
Parties: Rex (Crown)
Salim Mehajer (Offender)
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

JUDGEMENT

On Monday 27 March 2023 the offender appeared for trial in the District Court, Sydney. After I granted the Crown leave to amend Count Seven in the indictment with the offender’s consent, to accurately reflect the elements for that offence, he was arraigned and pleaded not guilty to each count.
The offender appeared unrepresented. He asked the court to stay the proceedings. I refused the application. [1] I suspended the trial pending determination of the Court of Criminal Appeal upon the relief he unsuccessfully sought there. The Court of Criminal Appeal directed there be no publication of the decision reached and as yet has not provided its reasons.
1. R v Mehajer [2023] NSWCCA 98.
The jury were empanelled on 12 April 2023 and excused after preliminary steps until Tuesday 18 April 2023 to resume the trial subject to the decision in the Court of Criminal Appeal. The trial resumed on that date. The jury retired to consider their verdicts on Tuesday 9 May 2023.
On Wednesday 10 May 2023 the jury returned with verdicts of guilty to all counts except for Count Six, the alternative to Count Five, which was not required after the verdict of guilty for that count.
Thereafter the Crown brought to my attention the certificate pursuant to s 166 Criminal Procedure Act 1986 with related offences for determination after trial. After hearing submissions I announced that the application by the offender for the remission of those offences to the Local Court for determination was refused. These are my reasons.

The Offences at Trial

The offender faced the following charges:

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

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 (No. 2)

Details

AGLC: R v Mehajer (No. 2) [2023] NSWDC 151
Case: [2023] NSWDC 151
Decision Date: 10 May 2023

CaseChat Overview and Summary

The case of R v Mehajer (No. 2) involved the defendant, Mehajer, who faced charges of back-up and related offences. The case was heard in the Supreme Court, where Mehajer sought to have the related offences heard in the Local Court. The primary legal issue before the court was whether it was in the interests of justice to hear the related offences in the Supreme Court, or whether they should be remitted to the Local Court for hearing.

The court considered the arguments presented by both parties and examined the relevant legal principles. The court found that it was appropriate to hear the related offences in the Supreme Court, as the nature and seriousness of the charges warranted a higher court's attention. The court also noted that there was no evidence presented to suggest that the defendant would be prejudiced by the related offences being heard in the Supreme Court. Based on these considerations, the court was not persuaded that it was not in the interests of justice to hear the related offences in the Supreme Court.

Accordingly, the application to remit the related offences for hearing in the Local Court was refused. The court's decision was based on the principle that the interests of justice should be the primary consideration in determining the appropriate forum for the hearing of criminal charges. In this case, the court found that it was in the interests of justice to hear the related offences in the Supreme Court. The final order of the court was to refuse the application to remit the related offences for hearing in the Local Court.

Orders

Orders of the court

1) I am not persuaded that it is not in the interests of justice for this court to deal with the related offences

2) The application to remit the related offences for hearing in the Local Court is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Mehajer (No. 2) [2023] NSWDC 151
Hearing dates:	10 May 2023
Date of orders:	10 May 2023
Decision date:	10 May 2023
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	1) I am not persuaded that it is not in the interests of justice for this court to deal with the related offences 2) The application to remit the related offences for hearing in the Local Court is refused.
Catchwords:	CRIMINAL PROCEDURE — Back up and related offences — Procedures
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Domestic and Personal Violence) Act 2007 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Supreme Court Act 1970
Cases Cited:	Maroubra Rugby League Football Club Inc v Malo & Anor [2007] NSWCA 39 McDermott v Collien (1953) 87 CLR 154 R v Belghar [2012] NSWCCA 86
Category:	Procedural rulings
Parties:	Rex (Crown) Salim Mehajer (Offender)
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