R v Mehajer (No. 2)
[2023] NSWDC 151
•10 May 2023
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:
Solicitors:
Ken Gilson (Crown Prosecutor)
Salim Mehajer (Self-represented)
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
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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.
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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.
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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.
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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.
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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
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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
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 30 April 2018 and 5 May 2018 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 30 April 2018 and 5 May 2018 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 her unconscious, insensible or incapable of resistance and was reckless as to causing that result.
S 37(1) Crimes Act 1900 Law part code 82221
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Counts Three and Four initially pleaded that the offences occurred between 1 June 2019 and 31 July 2019 but when evidence was led from the complainant, and from a witness, BG, with reference to messages in a telephone application it was possible to provide a more precise date range in which the Crown alleged that the offences occurred and by consent I permitted the Crown to amend.
Related Offences
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Pursuant to s 166 Criminal Procedure Act 1986 the following charges for offences contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007 were before the court as related offences within the meaning of that term defined in s 165 Criminal Procedure Act:
Sequence H 77477932/1:
Between 9:00pm on 27/12/2020 and 3:00pm on 28/12/2020 at Silverwater in the State of New South Wales Salim Mehajer did knowingly contravene a prohibition specified in an order.
Sequence H 77477932/2:
Between 12:49pm and 1:00pm on 24/12/2020 at Silverwater in the State of New South Wales Salim Mehajer did knowingly contravene a prohibition specified in an order.
Sequence H 77477932/3:
Between 1:00pm and 1:30pm on 28/12/2020 at Silverwater in the State of New South Wales Salim Mehajer did knowingly contravene a prohibition specified in an order.
Sequence H 77477932/4:
Between 1:30pm and 2:00pm on 29/12/2020 at Silverwater in the State of New South Wales Salim Mehajer did knowingly contravene a prohibition specified in an order.
Sequence H 77477932/5:
Between 9:00pm and 3:00pm on 30/12/2020 at Silverwater in the State of New South Wales Salim Mehajer did knowingly contravene a prohibition specified in an order.
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These offences were alleged to have been committed during the period between 24 December 2020 and 30 December 2020.
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The offences upon which the offender was tried were during the period between 1 April 2018 and 4 October 2020. The victim of those offences was the person in need of protection for whom orders were made after the commission of those offences, allegedly breached in the related offences now prosecuted. I am satisfied that these are related offences, as summary offences arising from, substantially, the same circumstances as those from which the indictable offences of which the offender is found guilty.
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S 166 Criminal Procedure Act 1986 provides relevantly,
(1) On committal for trial … of a person charged with an indictable offence—
(a) the prosecutor must inform the Magistrate as to whether or not the person has been charged with any … related offence, and
(b) if the person has been charged with any … related offence—
(i) the prosecutor is to produce to the court a certificate specifying each … related offence with which the person has been charged, and
(ii) the proceedings on each … related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate).
(2) This section does not prevent the person referred to in subsection (1) being charged with any offence after committal.
(3) Proceedings on a … related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence.
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S 167 Criminal Procedure Act 1986 provides relevantly,
(1) If, …at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court—
(a) …
(b) is to deal with … any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.
(1A) …
(2) …—
(3) (Repealed)
(4) ….
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S 168 Criminal Procedure Act 1986 provides relevantly,
(1) The court is to deal with a … related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section.
(2) The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the … related offence.
(3) In sentencing or otherwise dealing with a person for a … related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court.
(4) Rules of court may be made with respect to … related offences dealt with under this Part.
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S 169 Criminal Procedure Act 1986 relevantly provides.
(1) A court that is dealing with a … related offence under this Part may, if it is in the interests of justice to do so, remit the matter to the Local Court.
(2) Any … related offence that is not dealt with by a court in accordance with this Part is to be remitted back to the Local Court.
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Also relevant to the determination of whether the court should deal with the related offences is s 5AD Criminal Appeal Act 1912:
(1) Section 5AA applies to and in respect of a person convicted of an offence by the Supreme Court or District Court in the exercise of its jurisdiction under Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as it applies to a person referred to in section 5AA (1).
(2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the District Court.
(3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct unless—
(a) the judge considers that the appeal should be dealt with by the full court and notifies the Chief Justice accordingly, or
(b) an appeal is lodged under this Act in relation to the related indictable offence.
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This provision is important considering that if the related offences were dealt with in accordance with s 166 Criminal Procedure Act 1986 the offender would not have available to him his appeal rights pursuant to Part 3 Crimes (Appeal and Review) Act 2001. Without the opportunity for appeal pursuant to s 5AD Criminal Appeal Act 1912 there would I believe have been sound reasons to find that it would not be in the interests of justice to deal with the related offences in this court.
The Crown Submissions
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The Crown brought to my attention authority where consideration was given to what “interests of justice” might involve, reminding the court that there was no evidence before it upon which one could conclude that it would not be in the interests of justice to deal with the related offences in this court before the hearing for the determination of sentence.
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The Crown noted that the accused did not provide any reference to evidence or facts that might be thereby established either directly or by inference that this court would not be other than impartial and objective in the assessment of whether the accused guilty of the related offences.
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In R v Belghar [2012] NSWCCA 86 an appeal was upheld from a decision at first instance granting a judge alone trial. The issue turned upon s 132 Criminal Procedure Act 1986 which provides the opportunity for the parties to criminal proceedings to seek a trial by judge alone, and in sub section (4),
If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.
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The judge at first instance ordered the trial by judge alone upon the application of the accused but did so without evidence which would support the proposition that it was in the interests of justice to exclude the community from their role in the criminal trial process to ensure that there was a fair trial for the accused. In doing so the appellate court held that the primary judge was in error. At para [100] and following the court said (my emphasis),
100 Where an alleged offence involves objective community standards, the Parliament has made plain that it may be preferable, "in the interests of justice", that there should be trial by jury. However, where, as in the present case, the trial will not require the application of community standards to resolve any issue, the factors favouring a jury trial are diminished at least by the absence of that factor.
101 However, the decision that the judge is required to make must be founded upon evidence. That evidence may disclose that, notwithstanding that the accused has a concern that he or she may not receive a fair trial, the concern is misplaced. There are conceivably many people in the community who have particular allegiances or who are members of a minority group and who believe that other members of the community would be prejudiced against them. However, whether those fears should be accepted as having the potential to corrupt the fairness of an accused's trial if tried by a jury must be evaluated having regard to all of the relevant circumstances. Those circumstances will include an assessment of whether the accused's apprehension is soundly based.
102 ….
103 ….
104 In the present case, although the primary judge had before him the records of interview of the respondent and the statements from his wife and the complainant, his Honour did not have evidence before him to allow an evaluation of whether the respondent's concerns had substance. The respondent's position was confined to a submission by his counsel that he feared that a jury may be prejudiced against him because of his conservative Muslim beliefs.
105 It may be inferred from the primary judge's reasons that his Honour accepted that the subjective views of an accused person that he may not get a fair trial if tried by a jury are relevant when considering an application. Of course, in every case the inspiration for the application will be the accused's perception as to the likely fairness of a trial by jury in his or her particular circumstances.
106 In Arthurs there was evidence before the court of the burden of pre-trial publicity which the accused had been required to endure. Although Martin CJ said that it would have been preferable for there to be evidence of Arthurs' subjective views before they could be considered, it was not difficult to identify them and reach the conclusion that he might rationally fear whether he would receive a fair trial. The position is different in the present case.
107 ….. The jury may conclude that the respondent acted as he did because of his strict Muslim views, but this would be a conclusion founded upon the evidence and not resulting from any prejudice against Muslim people. The respondent's conservative views in relation to women may be an important element in the Crown case, but not because of any inherent prejudice in the community against persons who hold those views.
108 The primary judge did not approach the issue in this manner. There was no evidence of the existence in the community of the prejudice which was asserted. His Honour did not consider whether, if such a prejudice exists, it could be neutralised or removed by the directions of the trial judge. Although I recognise the caution which this Court must take when asked to reconsider the decision of a trial judge made under s 132, I am satisfied that in the present case the decision which his Honour made was not open. His Honour did not have evidence to allow him to make the finding which he did. Furthermore, his Honour did not consider whether by following the conventional procedures for trial by jury the prejudice which the respondent feared could be avoided. For these reasons the appeal must be upheld and the decision of the primary judge quashed.
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The essence of the Crown submissions relying upon these passages is that the court called upon to determine what in the particular context is in the interests of justice must have evidence of relevant facts unless the facts relevant to this question are matters of which the court may take notice without the need for evidence to establish them. Although the context in which R v Belghar ibid was decided differs from the context in which the phrase is considered here. I agree with the Crown’s submission that the offender must identify evidence of facts upon which he argues that the matter should be remitted to the Local Court in the interests of justice.
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Maroubra Rugby League Football Club Inc v Malo & Anor [2007] NSWCA 39 arose from civil proceedings in which damages were sought by a footballer for injuries suffered in a game of rugby league. The decision turned upon s 85(2)(b) Supreme Court Act 1970 which provides that proceedings are to be without a jury unless the court otherwise orders upon the filing of a requisition for a trial with a jury with payment of the appropriate fee, and, the court is satisfied that it is in the interests of justice to require a trial by a jury in the proceedings.
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Mason P, with whom Ipp and Tobias JJA agreed, said (my emphasis),
32 Section 85(2)(b) does not direct or permit the Court to weigh which mode of trial is preferable in the proceedings and to prefer trial by jury if traditional considerations or perceptions would have supported that mode (see McDermott v Collien (1953) 87 CLR 154 at 157). Nor does it permit judicial fact-finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern “moral, ethical or general social values”, assuming them to be relevant to the task at hand. The standard required by s85(2)(b) is high and absolute, namely that the judge must be satisfied that the interests of justice require trial by jury in the instant proceedings.
33 …, I do not think that the presence of fraud allegations or major credibility issues will suffice. Judges can and do decide such matters frequently. Unlike juries, their reasons are fully exposed, thereby aiding appellate accountability, itself a matter that serves the interests of justice. This is not to deny that the combination of serious credibility issues and something more (for example, a serving judge as a potential witness) might require trial by jury in the interests of justice.
34 Decision-making may be value-laden. But great caution is, in my view, required before a court could be satisfied that reference to “community” or “moral, ethical or general social values” were pertinent to any proceedings and that this could satisfy the judge that the interests of justice require departure from the general rule.
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Mason P devoted attention to the construction of the provision when coming to the decision that the primary judge was in error in concluding that it was in the interests of justice for the trial to be conducted with a jury and did not expressly address the need for evidence or upon whom the burden fell to provide evidence to satisfy the judge of the interests of justice to be brought to bear. Nonetheless the premises upon which the President analysed this question included the need for sound bases upon which the court should decide whether it is in the interests of justice to proceed with a jury. His Honour’s remarks at para [32] are clear that s 85(2)(b) does not direct or permit the Court to weigh which mode of trial is preferable in the proceedings and to prefer trial by jury if traditional considerations or perceptions would have supported that mode, does not permit judicial fact-finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern “moral, ethical or general social values”, assuming them to be relevant to the task at hand, and, the judge must be satisfied that the interests of justice require trial by jury in the proceedings. This authority may also be read as supporting the proposition that the offender has the burden of advancing evidence to show that it is in the interests of justice to remit the proceedings to the Local Court.
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The Crown conceded that these decisions did not evolve from comparable circumstances as those before this court but argued that they provide guidance to be applied here. The Crown repeated that there is no evidence from the manner in which the trial was conducted or otherwise upon which one could assert that my conduct could be said to reflect bias, whether actual or apprehended against the offender or toward the complainant. Moreover, there is likely to be little focus upon the complainant’s credibility considering the evidence upon which the Crown would rely for the related offences.
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The Crown submitted that the interests of justice are not confined to the accused’s concerns but extend to the interests of the community, those of the prosecuting authority, those of the witnesses, and include the loss of efficiency and increased cost that would involve remission of the related charges to the Local Court for a magistrate to embark upon the hearing afresh, with at least some consideration of the matters in the trial relevant to whether the offences are proven.
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The Crown concluded with the proposition that it would not be unfair to the offender to have the related offences dealt with in accordance with s 166 Criminal Procedure At 1986.
The Accused’s Approach
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The accused resented his arguments by way of his handwritten document MFI 80. He argued the following propositions:
The offences would usually be determined before a magistrate in the Local Court.
He would have a slight advantage in the assessment of sentence if the matters were remitted to the Local Court. This point is not expressed with clarity. He wrote,
There is a slight advantage to the accused if the matters return to the local court in terms of sentencing and potentially time that the accused has already spent in custody – (in respect to unrelated ‘affidavit matter’) – in other words, if the matters return to the local court, the accused would most likely not be subject to additional time in custody having any sentence be run concurrent (sic). (More research required on this point.)
The offender will be defending the charges and therefore it would be in the interests of justice that both he and the complainant give evidence to be assessed by a judicial officer who has not been privy to voluminous material tendered in the trial.
The next point is also confused and so I quote:
In the event that the matter returns to the court below, any argument made by the Crown in terms of ‘delay’ – is not irrelevant and insignificant. The accused has already written to the O.I.C. and has consented to an AVO (subject to facts) – and the accused is already in custody – serving his parole period.
His fifth point is that if the Crown consented to the remission of these charges to the Local Court the issues could be simplified with a plea of guilty with an explanation or agreed facts. This suggestion is said to be without prejudice and subject to the terms of agreed facts, and the offender needs to review CCTV and ADVO documents before reaching a decision in these terms. He continued, with reference to a letter he said he wrote to the first officer in charge of the investigation said to assert this,
The accused maintains, that despite any plea of guilty – the accused always believe (sic) that the ADVO will only be in effect once the matters does/return to court.
The Crown should reconsider the number of these charges. There should be three and not five that are subject to dispute. He continued,
The accused did not contact the PINOP on the two (2) occasions as alleged and did not reach the PINOP’s “voicemail”.
The PINOP has previously informed police, that the accused never, made direct contact with her via the offender’s telephone system – including reaching the PINOP’s voicemail.
Once ADVOs are in place, the offender’s telephone system will not allow phone calls to go through that are linked to the PINOP. The phone number gets disabled by default.
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The offender’s document was presented before the jury returned with the verdicts and should be read in that light.
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I understand the second point the offender argues to be that the time needed for the related charges to be listed and resolved in the Local Court would not result in additional custody because any time spent awaiting their determination would run concurrently with the sentences that would be imposed, if there were to be any, after the trial. This I would expect to be so, for unless there are compelling reasons that are yet to be presented in the proceedings for determination of sentence after the trial, no sentence other than imprisonment is appropriate for any of the offences of which the offender was found guilty. Nonetheless it is not appropriate to delay the determination of the related summary offences as the offender appears to suggest for the reasons he advanced.
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Regarding the offender’s third point the Crown indicated that it would rely upon the evidence in the trial, with such additional evidence as might be given by the complainant and if necessary the police officer in charged. This is in keeping with s 168 Criminal Procedure At 1986.
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I do not understand the offender’s fourth point.
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Regarding the offender’s fifth and sixth points these are matters more appropriately argued in the proceedings for the determination of the related charges.
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I invited the offender to speak further upon these questions but he relied upon the written document MFI 80.
Consideration
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I accept that the offender has the burden of persuading this court that it is in the interests of justice to remit the related charges to the Local Court for determination there. There is no evidence to which the offender points in support of facts which might support the application that the court make such an order, other than the general points he advanced in MFI 80.
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The legislation provides an efficient process for the determination of related offences after a trial thereby avoiding the cost and inconvenience to all of having the charges remitted to the Local Court for determination. The offender’s first point is of little if any significance considering this, and that appeal rights are provided in the Criminal Appeal Act 1912 should the offender wish to pursue them. It is not to be overlooked that the District Court is the appellate court from decisions of magistrates in the determination of summary offences under the Crimes (Appeal and Review) Act 2001.
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There is no merit in the argument that there is little if any prejudice by the delay in the determination of the related offences which is likely upon their remission to the Local Court. It is in the interests of the offender and the community to have the offences determined as soon as is possible which can be achieved by way of these arrangements which allow for all that procedural fairness and justice requires.
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The offender has not shown any basis upon which it might be said that consideration of these offences by another judicial officer is desirable.
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The matters raised in his fourth, fifth and sixth points are on their face matters for the consideration by the court hearing these charges, but there is nothing advanced to suggest that this court is less suitable for their consideration than the Local Court.
Decision
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I am not persuaded that it is not in the interests of justice for this court to deal with the related offences.
Order
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Announced on 10 May 2023: the application to remit the related offences for hearing in the Local Court is refused.
Further Developments
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The offender re-appeared on Thursday 11 May 2023.
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The Crown announced that there were discussions with the accused which led to resolution of the related offences. Pursuant to this the offender pleaded guilty to the first of the related offences, namely,
Sequence H 77477932/1:
Between 9:00pm on 27/12/2020 and 3:00pm on 28/12/2020 at Silverwater in the State of New South Wales Salim Mehajer did knowingly contravene a prohibition specified in an order.
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The Crown announced that upon the imposition of sentence for this offence the remaining four charges for related offences would be withdrawn. The facts relevant to the offence the offender admitted will be incorporated in the judgement on sentence.
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Endnote
Decision last updated: 12 July 2023
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