Mehajer v Director of Public Prosecutions

1. [1]

   JOHNSON J: This is an application by Salim Mehajer for bail pending the hearing of an application for leave to appeal against conviction and sentence to be heard by the Court of Criminal Appeal on 15 July 2022, together with bail in advance of a trial listed to proceed in the District Court in June 2022.

2. [2]

   The two sets of proceedings are as follows:

3. [3]

   The Applicant has been granted bail with respect to three other groups of charges which are fixed for separate trials in the Sydney District Court commencing on 21 March 2022, 5 September 2022 and 24 October 2022.

4. [4]

   On 5 February 2021, Ierace J refused the Applicant bail with respect to his conviction (but before sentence) by his Honour Judge Zahra SC at the Skypoint trial and also with respect to the alleged offences giving rise to the domestic violence trial.

5. [5]

   The present application is to be determined afresh by this Court and is not an appeal from or a review of the decision of Ierace J: R v Kugor [2015] NSWCCA 14 at [4]. That said, this Court is not precluded from having regard to the judgment and findings made by Ierace J: Viavattene v R [2018] NSWCCA 197 at [3].

Special or Exceptional Circumstances Under s.22(1) Bail Act 2013

1. [6]

   As this is an application for bail pending appeal to the Court of Criminal Appeal concerning the Skypoint trial, s.22(1) Bail Act 2013 applies so that the Applicant must demonstrate that special or exceptional circumstances exist that justify the granting of bail, otherwise the application must be refused.

2. [7]

   The proper construction and application of s.22 Bail Act 2013 was considered recently by this Court in Fantakis v Director of Public Prosecutions [2021] NSWCCA 271, where Beech-Jones CJ at CL (R A Hulme and Campbell JJ agreeing) said at [9]-[12]:

3. [8]

   Beech-Jones CJ at CL continued in Fantakis v Director of Public Prosecutions at [15]:

Show Cause Requirement

1. [9]

   In addition, the Applicant is required to show cause why he should be granted bail in relation to the charge of intentional choking (s.37 Crimes Act 1900) and intimidate (s.13(1) Crimes (Domestic and Personal Violence) Act 2007) which form part of the charges at the domestic violence trial.

2. [10]

   The show cause requirement applies to those charges because they are alleged to have been committed whilst the Applicant was on bail in relation to other matters: s.16B(1)(h)(i) Bail Act 2013.

3. [11]

   The onus is on the Applicant to establish on the balance of probabilities that his detention is not justified: s.16A(1), s.32(1) Bail Act 2013.

Material Before This Court on the Application

1. [12]

   In support of the application to this Court, the Applicant, who has appeared for himself, furnished a very substantial volume of material including written submissions in chief and in reply to the Crown written submissions, together with affidavits of the Applicant and his sister, Sanna Mehajer, and other documents said to relate to issues concerning his appeal and his future trials. The original material furnished with the bail application filed on 14 December 2021 was supplemented by further bundles emailed by the Applicant to the Court on 21 December 2021, 25 January 2022 and 2 February 2022.

2. [13]

   The Crown furnished written submissions on the application together with a Court Book comprising some 429 pages, including the detailed judgment of his Honour Judge Zahra SC following the Judge-alone trial and his Honour’s sentencing remarks together with a range of other documents relevant to the application. An affidavit of Isabella Viney, solicitor, dated 1 February 2022, supplemented the material in the Crown tender bundle.

3. [14]

   In Fantakis v Director of Public Prosecutions, Beech-Jones CJ at CL noted (at [16]) the voluminous material received by the Court on that bail application. His Honour continued at [17]:

4. [15]

   I have undertaken a similar review in the present application within the limits arising from the nature of the application and the need for a prompt decision.

Matters Relied Upon as Special or Exceptional Circumstances

1. [16]

   The Applicant made written submissions with respect to a range of topics which, it was argued, cumulatively gave rise to special or exceptional circumstances with respect to his appeal to this Court. The Crown written submissions identified correctly the following topics which were relied upon by the Applicant in this respect:

The Applicant’s Grounds of Appeal

1. [17]

   The Applicant’s grounds of appeal against conviction arising from the Skypoint trial are as follows:

2. [18]

   In addition, the Applicant relies upon six grounds of appeal on an application for leave to appeal against sentence.

3. [19]

   The Applicant’s sentence appeal asserts that the aggregate sentence was manifestly excessive and that errors occurred with respect to the weight given to certain factors on sentence and in the sentencing Judge’s approach to psychiatric evidence on sentence.

The Judge-Alone Trial and Sentence Arising from the Skypoint Trial

1. [20]

   To the extent that it is necessary for this Court to consider the Applicant’s grounds of appeal, it is appropriate to observe that the trial before his Honour Judge Zahra SC extended over some 24 days with the Applicant giving evidence over five days in August 2020. His Honour delivered written reasons for returning verdicts of guilty which extended to 206 pages (481 paragraphs). His Honour’s sentencing remarks on 23 April 2021 extended to 41 pages (115 paragraphs).

2. [21]

   In considering the conviction grounds, it is appropriate to note the structure and detail of the trial Judge’s judgment of 2 October 2020. His Honour gave detailed directions of law, none of which are challenged on appeal (Part A – [5]-[70]). Thereafter, his Honour set out an overview of the Crown case in relation to each of the three counts on the indictment (Part B – [71]-[91]). His Honour then undertook consideration of the evidence in the trial (Part C – [92]-[279]). His Honour considered the case of the Accused and an overview of particular issues raised in the case of the Accused (Part D – [280]-[363]). His Honour then moved to a determination, including findings with respect to each of the three counts (Part E – [364]-[456]). This part of the judgment culminated in a finding by his Honour that the Crown had proved beyond reasonable doubt each of the counts in the indictment (at [(456]). His Honour then referred to other misleading statements in the affidavit of the Accused (at [457]-[477]), before entering verdicts of guilty with respect to each of the three counts on the indictment (at [478]-[481]).

3. [22]

   In the course of detailed sentencing remarks delivered on 23 April 2021, his Honour Judge Zahra SC noted the objective gravity of the offending which had occurred in the context of an application by the Applicant to vary bail conditions under the Bail Act 2013 and for associated purposes. In this context, his Honour made the following findings (at [70]-[73]):

4. [23]

   The following findings of his Honour Judge Zahra SC (at [74]-[78]) are also pertinent to the present bail application:

5. [24]

   His Honour imposed an aggregate sentence and nominated the following indicative sentences as part of the sentencing orders (at [113]-[114]):

6. [25]

   It is a significant aspect of the present application for bail that the Applicant himself has been convicted on indictment, and is serving a sentence, for public justice offences associated with a bail application made to a Court.

Consideration of The Applicant’s Grounds of Appeal

1. [26]

   The Court which hears the Applicant’s appeal will have the benefit of the extensive reasons of the trial and sentencing Judge.

2. [27]

   There is no claim here in the conviction appeal grounds of misdirection or error of law. Rather, the complaints made concerning the trial relate to procedural and adjectival matters and suggested factual errors, as well as a claim that the verdicts of guilty were unreasonable.

3. [28]

   The Court hearing the Applicant’s appeal will have available to it the full record of the trial and not merely the limited material before this Court on the present application. This application provides a useful illustration of the principle that this Court on a bail application must proceed on a broad overall view of the Applicant’s apparent prospects of success on appeal: Fantakis v Director of Public Prosecutions at [15] (see [8] above).

4. [29]

   Further, the analysis with respect to the Applicant’s conviction appeal undertaken by Ierace J in the judgment of 5 February 2021 is helpful to this Court. It is the case that the Applicant has furnished substantial additional material for the purpose of the present application. It is pertinent, nevertheless, that, following an examination of the matters relied upon by the Applicant, Ierace J determined that special or exceptional circumstances had not been demonstrated for the purpose of s.22(1) Bail Act 2013.

5. [30]

   Having considered the material placed before the Court on this application, it is appropriate to record conclusions as to the Applicant’s prospects of success on the conviction grounds whilst keeping firmly in mind the limits upon this Court in undertaking this process.

6. [31]

   With respect to the first ground of appeal which asserts excessive intervention by the trial Judge, the Applicant provides illustrations of the suggested excessive intervention which is said to give rise to a miscarriage of justice. The Applicant said that there were some 320 questions asked by the trial Judge during his cross-examination and re-examination at trial. The Applicant’s written submissions provide illustrations of the claimed excessive intervention (pages 54-77, Applicant’s bail material filed 14 December 2021).

7. [32]

   The extracts relied upon by the Applicant do not, in my view, give rise to a legitimate complaint of excessive intervention by the trial Judge. A Judge presiding at a Judge-alone trial is entitled, within reasonable and legitimate boundaries, to ask questions of witnesses during the trial: FB v R [2011] NSWCCA 217 at [84]-[110].

8. [33]

   Concerning the claim of excessive intervention by the trial Judge, it does not appear that any complaint or objection was made during the course of the trial by counsel then representing the Applicant about the matters now sought to be raised under this ground. This does not assist the Applicant with respect to this ground of appeal. Further, the examples relied upon by the Applicant in support of this ground do not appear to extend beyond areas of reasonable and legitimate questioning by a trial Judge at a Judge-alone trial.

9. [34]

   Working with the material placed before the Court on the present application, I do not consider that the Applicant has a reasonably arguable ground based upon alleged intervention by the trial Judge during the trial.

10. [35]

    The second ground of appeal with respect to conviction raises issues concerning prosecution disclosure. The material provided by the Applicant is somewhat discursive concerning this ground.

11. [36]

    I have considered the submissions made by the Applicant and the Crown with respect to disclosure concerns relating to the Crown witness, Maree Lane. Given the task which the Court is undertaking on this bail application, I express the view that this complaint does not have reasonable prospects of success.

12. [37]

    Under the second ground of appeal, the Applicant complains next with respect to disclosure of the contents of his mobile telephones. The Crown indicates that the Applicant’s assertions will need to be addressed by further evidence with respect to the Cellebrite extractions of the Applicant’s mobile telephones.

13. [38]

    Having regard to the principles stated in Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28, no reasonably arguable ground appears to emerge from this aspect of the Applicant’s complaints. As the Crown observed in submissions, the Applicant has not identified any particular message or document said to be on the mobile telephones which would give rise to any concern that the non-availability of such a document (even if established) could have given rise to a miscarriage of justice.

14. [39]

    Under this ground, the Applicant complains, as well, about the non-availability of Norman Sarraf at the trial. Mr Sarraf was subject to a short-service subpoena to give evidence which was issued on behalf of the Applicant. Subsequently, the Applicant asked New South Wales Police to obtain a statement from Mr Sarraf and this was done. The statement was tendered at the trial with the consent of the Applicant after the parties and the Court were informed that Mr Sarraf was not immediately available to give evidence for health reasons. The Applicant’s counsel confirmed this course was taken with consent in his closing address. In these circumstances, it is difficult to see that any reasonably arguable ground arises from this aspect of the trial.

15. [40]

    I do not consider that any aspect of the second ground of appeal against conviction is reasonably arguable.

16. [41]

    The third ground of appeal asserts that the verdicts of guilty of the trial Judge were unreasonable. As Beech-Jones CJ at CL observed in Fantakis v Director of Public Prosecutions at [58], a finding on a bail application that it is likely that the Court will later determine the verdict was unreasonable and cannot be supported by the evidence is likely to be rare. This is even more so where the trial proceeded as a Judge-alone trial.

17. [42]

    In support of this ground, the Applicant has made extensive submissions by reference to certain parts of the evidence. The Applicant’s submissions do not embark upon any analysis of the detailed judgment of the trial Judge on conviction which, as noted earlier, contained a systematic analysis of the directions of law, the evidence and reasons for reaching verdicts of guilty with respect to each count.

18. [43]

    It will be necessary for the Court, at the hearing of the appeal, to assess the whole of the record of the trial, including the reasons of the trial Judge, for the purpose of determining the unreasonable verdict ground: Byrne v R [2020] NSWCCA 218 at [22]-[28].

19. [44]

    It is sufficient to observe, for present purposes, that no reasonably arguable ground is advanced by the Applicant at this stage on the material presented to the Court on the present application.

20. [45]

    The fourth ground of appeal against conviction asserts the existence of fresh evidence in the form of an affidavit of Ahmed Gharib and various documents.

21. [46]

    A question will arise on appeal as to whether the items of evidence referred to by the Applicant constitute “fresh” or “new” evidence: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]; Xie v R [2021] NSWCCA 1 at [433]-[434]. The Crown notes an acknowledgement by the Applicant that a number of the items sought to be relied upon were provided to the Applicant’s counsel at the trial, but that counsel declined to use them. The Crown notes that a response is to be sought from the Applicant’s trial counsel in circumstances where client legal privilege has been waived. It may be expected that material of that type will be before the Court hearing the appeal.

22. [47]

    For present purposes, it is difficult to make any assessment as to the strength of the Applicant’s arguments on the limited material available to this Court. The written submissions of the Applicant do not seek to challenge particular parts of the reasoning of the trial Judge by reference to this alleged fresh evidence. In these circumstances, it cannot be said that this ground of appeal is reasonably arguable.

23. [48]

    The fifth ground of appeal asserts a number of factual errors in the judgment on conviction. Brief submissions were made on this ground in the Applicant’s written submissions. The matters raised by the Applicant do not appear to be of particular significance in the trial Judge’s decision. Beyond that, no more favourable assessment can be made as to the Applicant’s prospects of success to that ground.

24. [49]

    As noted earlier (at [18]-[19]) the sentence appeal claims manifest excess and other errors. The sentencing remarks in this case were detailed and included findings that each of the three offences fell within the middle of the range of objective seriousness (see [22] above). The sentencing Judge had regard to a range of matters relied upon by the Applicant and attributed weight to various factors as was considered appropriate in the circumstances of the case.

25. [50]

    On a preliminary view, it could not be said that the sentencing appeal is reasonably arguable or has reasonable prospects of success.

26. [51]

    Having considered the material before this Court, with all its limitations, the broad overall view which I have reached is that the Applicant does not have reasonable prospects of success on his appeal against conviction and sentence.

Other Matters Relied Upon by the Applicant

1. [52]

   As noted earlier, an assessment as to whether special or exceptional circumstances exist can involve a combination of factors including the Applicant’s prospects of success on appeal. It is appropriate to refer to a range of other factors to be taken into account in making this assessment.

2. [53]

   The non-parole period of the Applicant’s existing sentence will expire on 18 January 2023. His appeal against conviction is listed for hearing on 15 July 2022. Earlier hearing dates for the appeal on 27 September 2021 and 3 February 2022 were vacated, with there being competing submissions as to the circumstances which have led to the vacation of those hearing dates.

3. [54]

   The length of the Applicant’s sentence is relevant on this application, but it is pertinent that the expiration of the non-parole period will be six months beyond the scheduled hearing day.

4. [55]

   With respect to the risk of absconding, reoffending or otherwise breaching bail, the principal aspect operating against the Applicant on this application is his poor record of compliance with bail conditions. These breaches have included contacting a prosecution witness in breach of bail conditions, posting an intimidatory message about his former partner on social media and the use of multiple mobile telephones when bail conditions only allowed the Applicant to be in possession of a single device.

5. [56]

   The risk of absconding may be less significant, although the Applicant has a range of criminal proceedings pending so that this risk cannot be ignored.

6. [57]

   A further unusual and significant factor operating against the Applicant is the nature of the offences for which he has been tried, convicted and sentenced by his Honour Judge Zahra SC, being offences which strike at the integrity of the bail system in this State. These various factors do not assist the Applicant on the present bail application.

7. [58]

   With respect to the need to prepare for court matters, the Applicant has undertaken substantial preparation for the purpose of his appeal, involving detailed submissions. Generally speaking, being at liberty on bail may allow greater preparation for court matters, but there are a range of other factors to be taken into account as well on the present application.

8. [59]

   The Applicant’s reliance upon his conditions of custody and the need for medical treatment are relevant to this application. However, the material before the Court does not suggest that his medical needs are not being addressed by Justice Health, although treatment in the community may always be regarded as preferable to medical treatment in custody.

9. [60]

   The Applicant makes a general assertion of the need to be at liberty to support his elderly parents. However, the evidence does not expand upon that factor in a material way.

Conclusion Concerning Special or Exceptional Circumstances

1. [61]

   After having regard to these various factors in a compendious way, I am not persuaded that the Applicant has demonstrated special of exceptional circumstances so as to meet the requirement in s.22(1) Bail Act 2013.

The Show Cause Requirement, Bail Concerns and Unacceptable Risk

1. [62]

   As noted earlier, the show cause requirement applies to at least some of the charges to be heard at the domestic violence trial. The various factors referred to when considering the special or exceptional circumstances test do not assist the Applicant in overcoming the show cause requirement for these matters.

2. [63]

   With respect to bail concerns and an assessment of unacceptable risk, I agree with the assessment of Ierace J (at [60]-[61]) that the bail concerns set out in s.17(2)(a)-(d) Bail Act 2013 exist and that, if this point had been reached on the application, these concerns constitute unacceptable risks which are not mitigated by the proposed conditions of bail.

3. [64]

   I have kept in mind the affidavit of the Applicant’s sister, Sanna Mehajer, which offered a surety of $20,000.00 in support of the present application.

4. [65]

   It is noteworthy that Sanna Mehajer said in her affidavit of 1 February 2022 (at paragraph 9) that, if the Applicant was released on bail, he would reside at 14 Frances Street, Lidcombe. There is uncontradicted evidence before the Court, in the affidavit of Matthew Taylor dated 23 January 2022, that the National Australia Bank has exercised its rights under a mortgage over that property and has taken possession of it, with there being no consent or arrangement in existence for the Applicant to re-enter the property or to reside in it.

5. [66]

   This constitutes a further significant hurdle for the Applicant, even if other aspects of his application met with a favourable determination. The Applicant told the Court at the hearing that he would be able to find alternative accommodation. However, there is no evidence of that on the present application.

Conclusion

1. [67]

   The Applicant has a history of non-compliance with bail conditions and has been found guilty of, and sentenced for, serious public justice offences in the context of applications to Courts under the Bail Act 2013.

2. [68]

   The Applicant has failed to demonstrate special or exceptional circumstances for the purposes of s.22(1) Bail Act 2013.

3. [69]

   Even if special or exceptional circumstances had been demonstrated, there would remain significant bail concerns which would not be mitigated by the proposed bail conditions.

4. [70]

   For these reasons, I would decline the Applicant’s release application and refuse bail.

5. [71]

   HARRISON J: I agree with Johnson J that the applicant’s release application should be refused. Although in general a history that includes a previous disregard for bail conditions does not automatically lead to a rejection of a further application for bail, the applicant’s convictions that are the subject of Judge Zahra’s decision in this case lead me to conclude, having regard to the bail concerns identified by the Crown, that there are unacceptable risks that cannot be ameliorated by the imposition of appropriate conditions. In so saying, I am not of the view that the applicant, if bail were granted, would pose a risk of failing to appear or of leaving the jurisdiction.

6. [72]

   FAGAN J: I agree with Johnson J. Insofar as bail is sought pending the application for leave to appeal against conviction and sentence, I have reviewed the applicant's "Summarised Appeal Points and Submissions" in light of the extensive reasons of Judge Zahra SC for finding the applicant guilty and for imposing the sentence that was pronounced on 23 April 2021. Adopting the broad overview approach that is required on an application such as the present, the applicant's submissions have not satisfied me that any of the appeal grounds has even reasonable prospects of success. I concur, particularly, in Johnson J's observations on each of the grounds of appeal. I do not consider that special or exceptional circumstances have been demonstrated, as required by s 22(1) of the Bail Act. In the application for bail pending disposition of the charges that are to be tried the District Court on 5 June 2022, the applicant must show cause why his detention is not justified, because two of those charges are for serious indictable offences alleged to have been committed while he was on bail in relation to other matters: s16B(1)(h)(i). In my view the applicant has not discharged his burden of showing cause, particularly having regard to his past breaches of bail and what I take to be a now established record of non-cooperation in the administration justice so far as it affects himself.