Mehajer v Director of Public Prosecutions (NSW)

1. [1]

   HAMILL J: Salim Mehajer (“Mr Mehajer” or “the applicant”) makes a release application pursuant to the provisions of the Bail Act 2013 (NSW). The Director of Public Prosecutions (“the Director” or “the respondent”) opposes the application.

2. [2]

   Subject to the provision in s 74 of the Bail Act, the Court has the power to hear the application because there is an appeal and/or an application for leave to appeal pending in the Court: Bail Act, s 61. Mr Mehajer was sentenced on 9 May 2024 following his convictions in two separate trials. The first trial related to offences of violence, including domestic violence offences relating to his former partner (“the domestic violence offences”), while the second trial concerned offences of making false documents (“the fraud offences”). The domestic violence offences were allegedly committed between 2018 and 2020, while the fraud offences are said to have been committed in March 2020. The verdicts in the two trials were returned respectively on 10 May 2023 and 30 June 2023. However, Mr Mehajer has been in more or less continuous custody since 20 January 2021 when he was first refused bail in relation to the domestic violence offences. That period of custody relates not only to the convictions currently under appeal, but also to unrelated matters. A more detailed chronology set out at [11] shows that there was a brief period between 10 January 2023 and 31 January 2023 when the applicant had bail.

3. [3]

   Putting aside any assessment of risk pursuant to ss 17-19 of the Bail Act, the application faces two substantial obstacles. First, as foreshadowed in the previous paragraph, it is caught by s 74 of the Bail Act which prohibits multiple release applications to the same Court unless there are grounds for such an application. Secondly, assuming there are grounds upon which the Court decides to entertain the application, the Court is “not to grant bail” unless “special or exceptional circumstances exist that justify” that decision: Bail Act, s 22. The latter provision applies because Mr Mehajer’s proposed appeal is against his conviction and sentence on indictment. Its operation has been considered in several decision of this Court: see, for example, El-Hilli & Melville v R [2015] NSWCCA 146, HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141, Fantakis v Director of Public Prosecutions (NSW) [2021] NSWCCA 271 and more than one application involving the applicant himself.

4. [4]

   The case has a substantial history, which I will set out in more detail below. On 28 August 2024, this Court (Fagan, N Adams and Faulkner JJ) refused a release application: Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172. Then, on 6 December 2024, the Court (Kirk JA, Rothman and Yehia JJ) refused another release application: Mehajer v R [2024] NSWCCA 226. Two weeks later, on 20 December 2024, the Court (similarly constituted) refused leave to re-open the bail proceedings: Mehajer v R (No 2) [2024] NSWCCA 247. In the first of those December decisions, Yehia J provided clear and detailed reasons for judgment with which Kirk JA and Rothman J agreed. Her Honour set out the history and facts of the case, the issues at the trial and some of the matters to be ventilated on the appeal. Her Honour also dealt with the submissions and relevant considerations governing the outcome of the release application. These reasons assume some familiarity with the judgment of Yehia J and also that delivered by the Court in August 2024.

5. [5]

   The present release application was lodged with the Court registry on (or around) 5 February 2025. Following an exchange of evidence and filing of written submissions, the application was heard on 26 March 2025. Because the applicant filed important documents in the days before the hearing, the Director was granted seven days to file further written submissions. These “supplementary submissions” were filed on 31 March 2025. Mr Mehajer responded on 7 April 2025 by filing more evidence, as well as submissions in reply to the respondent’s supplementary submissions.

6. [6]

   On 7 May 2025, Mr Mehajer raised additional matters in a letter to the Court and the respondent was, again, given seven days to respond. That last response was received on 19 May 2025.

7. [7]

   Because Mr Mehajer is self-represented and is in custody, the Court took an indulgent approach to the receipt and consideration of evidence and submissions which were filed in apparent contravention of the Registrar’s directions and/or after the arguments closed. For pragmatic reasons, and because the Director did not strongly oppose it doing so, the Court decided to consider all of the material filed to this point.

8. [8]

   Mr Mehajer relied on the following material on the release application:

9. [9]

   The documentation provided in advance of the hearing also included a draft subpoena (directed to the complainant in the domestic violence offences) along with a letter dated 26 February 2025 purporting to place various conditions on the respondent’s conduct of the case; for example, that she not oppose the filing of the subpoena and will be ready to take a hearing date on the next call-over of the appeal. Mr Mehajer did not press that material on the hearing of the release application.

10. [10]

    The respondent relied on the following material:

11. [11]

    From that material, along with judgments reported on NSW Caselaw and/or recorded on JusticeLink, the following chronology can be discerned:

12. [12]

    Meanwhile, the substantive appeal has been listed for hearing on 16 July 2025. The most recent exchange of correspondence and submissions – that is, the applicant’s letter of 7 May 2025 and the Director’s email of 19 May 2025 – suggests that Mr Mehajer may apply to vacate the hearing date and the Director will not, or may not, oppose that application subject to obtaining more time to file submissions.

13. [13]

    The applicant’s aggregate non-parole period will expire on 18 July 2025. Contrary to the applicant’s letter of 7 May 2025, that does not mean that “the applicant will be released to parole on 18 July 2025”. The total sentence will not expire until 18 October 2029 and whether Mr Mehajer is released on or after 18 July 2025 will turn on the decision of the State Parole Authority. However, there is at least a “provisional decision to grant parole” pending the Review Hearing on 12 June 2025.

Section 74 of the Bail Act

1. [14]

   Section 74 of the Bail Act relevantly provides:

2. [15]

   The respondent referred to the judgment of Campbell J in R v Fallon [2017] NSWSC 1796 [2] where his Honour noted the purpose of s 74 and its context in the Bail Act:

3. [16]

   Contrast may be made with a case like Crane v Director of Public Prosecutions (NSW) [2021] NSWSC 1341 where the decision in Fallon was distinguished at [7]-[11]. It has to be said that the history of Mr Mehajer’s matter has more in common with the chronology in Fallon. It must also be recognised that the word “material” is not included in s 74(3)(c). Even so, the matters concerning context and purpose to which Campbell J referred are matters of significance in the circumstances of this case and considering the proper application of s 74 to its particular facts and background.

4. [17]

   An analysis of the earlier judgments of this Court, particularly the reasons of Yehia J delivered in December 2024 [3] and the decision of the Court (Fagan, N Adams and Faulkner JJ) delivered in August 2024, [4] demonstrates that the respondent was correct in submitting that any changes in the proposed grounds of appeal, or the submissions to be made in support of those grounds, were not “material” for the purpose of s 74(3)(b) of the Bail Act. The grounds of appeal and arguments presented to the Court are, in essence, the same as those ventilated on the previous release applications with some minor variations, additions and subtractions. Putting aside instances where a ground is abandoned or deleted, the changes to the grounds of appeal can properly be described as cosmetic.

5. [18]

   Similarly, the fact that the documentation was formally filed at around the time of the hearing of the present release application and again, in slightly different form, a few days after the hearing does not constitute “material information relevant to the grant of bail … that was not presented to the court in the previous application”. That is so despite the fact that those documents had only been filed “provisionally” – or not at all, or in different form – at the time of the earlier applications.

6. [19]

   The proposed grounds of appeal set out in the reasons of Yehia J in the decision made in December 2024 at [20] – [23] were:

7. [20]

   Comparison can be made with the “intended grounds of appeal” reproduced by the Court in its judgment of 28 August 2024:

8. [21]

   Despite the similarity in those grounds, Yehia J was “prepared to find there are grounds for a further release application” and provided the following explanation for that conclusion:

9. [22]

   The grounds of appeal notified in the notice of appeal which formed part of Ex 2 in the present application were as follows:

10. [23]

    The grounds were set out in Ex 4 (the notice of appeal filed on 25 March 2025):

11. [24]

    The applicant filed further amended grounds on 1 April 2025 which are identical to the grounds outlined above at [22]:

12. [25]

    The applicant referred to the grounds relied on in the present application as “more settled”, a reference to the decision of Wilson J in Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662 where her Honour said at [16]:

13. [26]

    In that case, bail was refused by the trial Judge (Fullerton J) when a bail application was made immediately after sentence was imposed. It was around six months later that the matter came before Wilson J by which time grounds of appeal had been drafted by appellate counsel and draft written submissions were tendered on the bail application. Elsewhere in the judgment (at [9]) her Honour said they were “different draft grounds of appeal to those tendered to [the sentencing Judge]” (my emphasis).

14. [27]

    Nothing in Mr Mehajer’s extensive submissions on the issues to be ventilated on the appeal under his “more settled” grounds of appeal constitutes material information that was not presented in his earlier applications. Nor do his submissions, the amended grounds, or the fact that he has now formally filed the grounds or the submissions, establish that circumstances relevant to the grant of bail have changed since the earlier applications made to this Court.

15. [28]

    Mr Mehajer also relied on a family or personal matter that he raised shortly after the hearing which, as I understand it, he submitted may satisfy the requirement of the ground in s 74(3)(c), namely that “circumstances relevant to the grant of bail have changed since the previous application” for the purposes of s 74(3)(c). That matter related to his father’s coronary health. This had been referred to in his earlier affidavit by reference to his concerns arising from conversations with his sister.

16. [29]

    The issue was raised as a matter relevant to s 74 in the applicant’s submissions of 7 April 2025 which purported to be a response to the respondent’s supplementary submissions. However, it appears the relevant document was served on the Director on 30 March 2025. The document is dated 25 March 2025 and indicates that Mohamad Mehajer (the applicant’s father) had an appointment scheduled on Thursday 17 April 2025 for a Coronary Angiogram procedure at Royal Prince Alfred Hospital.

17. [30]

    The applicant wrote that he has a very strong relationship with his father. He said that, if granted bail, he would live with his parents and “provide [his father] with all the support required”. The applicant acknowledged that both his mother and sister were available to assist but that his mother is “battling with her own health concerns, namely, pneumonia” and that his sister is a full-time university student who also has part-time employment.

18. [31]

    The respondent, “without diminishing the potential significance of the procedure”, submitted that the document suggested the angiogram was a “day procedure” and that the material, “neither in isolation, nor in combination with any other matter, is sufficient to meet the s 74 Bail Act threshold.” At the time that submission was made, the more recent development concerning the hearings before the State Parole Authority had not occurred.

19. [32]

    In reply to those submissions, the applicant acknowledged the angiogram was a day procedure but raised the possibility that “complications” may arise and that his sister has told him about the seriousness of the heart condition, a matter referred to in his affidavit of 1 April 2025.

20. [33]

    The evidence does not establish a relevant change of circumstances for the purpose of s 74 of the Bail Act. While Mr Mehajer’s concern for his father is not doubted, there is nothing to suggest any complications are likely to, or did, arise as a result of the angiogram. Similarly, the history of the heart condition is not known and there is no evidence that circumstances around that condition have changed or deteriorated between the time of the August and December bail decisions and now. Finally, Mr Mehajer acknowledges that both his mother and his sister provide appropriate care to his father.

21. [34]

    The applicant’s non-parole period expires on 18 July 2025 and his appeal is listed for hearing two days earlier, on 16 July 2025.

22. [35]

    The respondent was given the opportunity to respond to the information regarding the developments concerning the applicant’s parole. In conformity with a prosecutor’s duty of fairness, the respondent provided the Court with the information it obtained from the State Parole Authority which, on its face, is positive news for Mr Mehajer.

23. [36]

    The information provided by the State Parole Authority is that it has made a “provisional decision” to grant parole. However, it has called for submissions from the Commissioner and a report from a Community Corrections Officer. While the Court cannot predict the outcome of the Review Hearing to be conducted on 12 June 2025, one possibility is that the applicant will be granted parole, to take effect at the expiration of the non-parole period or at some later date.

24. [37]

    In an ordinary bail application, the fact that parole may be granted is a significant circumstance relevant to the grant of bail. That is because the conditions of parole, and requirement for supervision, provide a structure upon an applicant’s release which may mitigate the risk of re-offending and any possible risk or bail concern under ss 17-19 of the Bail Act. Accordingly, it may be arguable that the recent developments concerning parole might overcome the prohibition in s 74, by reference to the ground set out in s 74(3)(c).

25. [38]

    However, in this case, the applicant has no outstanding charges in relation to which he is on remand with bail refused. It is not an ordinary bail application in the sense to which I referred in the preceding paragraph. What the applicant seeks is what is often described, in lawyers’ shorthand, as “appeals bail”. That is, he asks to be released on bail pending the Court of Criminal Appeal determining whether his conviction or sentence should be quashed, overturned or reduced. If the applicant is granted parole, he will be released whether his appeal has been finalised or not.

26. [39]

    Accordingly, while the development is a circumstance that has changed since the last release application was heard, it is not a circumstance that would impact on the grant of [appeals] bail. The applicant’s non-parole period, and the date upon which he would first become eligible for parole, was known at the time of previous application(s). In her judgment on the most recent application before this Court, Yehia J noted the applicant’s submission at [45]:

27. [40]

    For the foregoing reasons, I am not satisfied that there are grounds for a further release application and, accordingly, the Court must refuse to entertain the application.

Note and proposed order

1. [41]

   Nothing in this decision should fetter, influence or interfere in any way with the decision to be made by the State Parole Authority when it conducts its Review Hearing. Because of the conclusion I have reached under s 74 of the Bail Act, it has been unnecessary to undertake any assessment of risk for the purposes of ss 22 or 17-19 of the Bail Act.

2. [42]

   The order I would make is:

   1. (1)

      Dismiss the further release application pursuant to s 74 of the Bail Act 2013 (NSW).

3. [43]

   McNAUGHTON J: I agree with Hamill J.

4. [44]

   RIGG J: I agree with Hamill J.