Mehajer v R

1. [1]

   WARD P: Following a trial by jury in the District Court of New South Wales before Bennett SC DCJ, on 10 May 2023 the applicant, Mr Salim Mehajer, was convicted of six charges for offences involving personal violence against his former partner (the complainant) (Counts 1-5 and 7, see below), to which I will refer as the personal violence offences. It was not necessary for the jury to consider the alternative charge to Count 5 (Count 6).

2. [2]

   Mr Mehajer was sentenced on 9 May 2024 (R v Mehajer [2024] NSWDC 240, the sentence judgment) for the personal violence offences as well as for offences involving the making and use of false documents (the false documents offences) of which he was convicted in a separate trial (again before Bennett SC DCJ) held from 19 to 30 June 2023. Bennett SC DCJ imposed an aggregate sentence of 7 years, 9 months’ imprisonment with a non-parole period of 3 years and 6 months, commencing on 19 January 2022. Mr Mehajer’s non-parole period expired on 18 July 2025 and he was released on parole on that date. His head sentence expires on 18 October 2029.

3. [3]

   Mr Mehajer seeks leave, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act), to appeal against his conviction in respect of the personal violence offences. Leave is required for all three proposed grounds of appeal against conviction (s 5(1)(b) of the Criminal Appeal Act) as Ground 1 raises mixed questions of fact and law and the remaining two grounds raise questions of fact alone. Mr Mehajer also seeks leave to appeal the sentence imposed on him by the trial judge. I set out the proposed grounds of appeal against conviction and sentence in due course.

4. [4]

   For the following reasons, leave to appeal against conviction should be granted but the appeal dismissed; leave to appeal against sentence should not be granted.

Background

1. [5]

   In January 2021, following the breakdown of Mr Mehajer’s three year relationship with the complainant, his then partner, and while Mr Mehajer was in custody for unrelated offences (one count of perjury by making a false statement on oath and two counts of perverting the course of justice, of which he had been found guilty in a judge alone trial before Zahra SC DCJ), Mr Mehajer was charged with the personal violence offences against the complainant.

2. [6]

   The first group of charges related to conduct alleged to have occurred in the period ranging from 1 April 2018 to 5 May 2018. Counts 1-3 were charges of common assault contrary to s 61 of the Crimes Act 1900 (NSW) (Crimes Act) during the period between 1 April 2018 and 30 April 2018 (Counts 1 and 2) and between 30 April 2018 and 5 May 2018 (Count 3). Count 4 alleged an offence of intimidation of the complainant, with the intention of causing her to fear physical or mental harm, between 30 April 2018 and 5 May 2018, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

3. [7]

   The second group of charges related to incidents allegedly occurring on 4 October 2020. Count 5 charged Mr Mehajer with assault occasioning actual bodily harm to the complainant on 4 October 2020, contrary to s 59(1) of the Crimes Act. Count 6 (an alternative to Count 5) was an allegation of common assault against the complainant on 4 October 2020. Count 7 charged that on 4 October 2020, Mr Mehajer intentionally suffocated the complainant so as to render her unconscious, insensible or incapable of resistance, and was reckless as to causing that result, contrary to s 37(1) of the Crimes Act.

4. [8]

   All of the offending conduct was alleged to have taken place at a property then owned by Mr Mehajer at Lidcombe, where the couple resided together at various periods in their relationship (see 19/4/23; T 112).

5. [9]

   The allegations in relation to the respective counts can be summarised as follows.

6. [10]

   Count 1 involved the allegation that Mr Mehajer assaulted the complainant during a car trip to a restaurant in Burwood. It was alleged that, following an argument during the journey in Mr Mehajer’s car, he pulled into a side street and punched the complainant in the head “extremely hard” about ten times (19/4/23; T 115); (24/4/23; T 318).

7. [11]

   Count 2 involved the allegation that Mr Mehajer pinned the complainant on a bed at the Lidcombe residence; grabbed the complainant’s hand, in which she was holding her mobile phone; and squeezed the complainant’s hand so hard that the phone screen cracked (19/4/23; T 118-119; 26/4/23; T 356).

8. [12]

   Counts 3 and 4 involved alleged offending that occurred on another occasion at the Lidcombe residence. Count 3 was an allegation that Mr Mehajer grabbed the complainant in the living room, dragged her by the arm into the laundry and held her up against a wall for a few minutes (19/4/23; T 121; 26/4/23; T 359). Count 4 alleged that Mr Mehajer then threatened to kill the complainant’s mother by putting a bullet through her head and to force the complainant to watch it (19/4/23; T 121-122; 26/4/23; T 359).

9. [13]

   The remaining counts (Counts 5, 6 and 7) related to an incident on 4 October 2020, at the Lidcombe residence. At the time of the incident, the complainant and Mr Mehajer had separate rooms (19/4/23; T 134). There was an argument between the couple and the complainant was getting ready to leave. Count 5 (to which Count 6 was an alternative) alleged that the complainant went to the kitchen and Mr Mehajer threw an object at her, which hit her upper right arm and which the complainant said gave her a “dead arm” and caused pain and significant bruising (19/4/23; T 134; 26/4/23; T 374; 4/5/23; T 833). The complainant described the object as being “very heavy and hard” (26/4/23; T 369).

10. [14]

    Count 7 followed on from the conduct alleged in Count 5 and the alternative Count 6. It was alleged that Mr Mehajer continued yelling at the complainant and then followed her to an ensuite bathroom, cornering her between a sink and a toilet and again pinning her up against a wall; that Mr Mehajer placed his forearm across the complainant’s chest and that, after the complainant began screaming, Mr Mehajer placed his hand over her nose and mouth and kept pressing his hand so that she was unable to breathe (19/4/23; T 135; 26/4/23; T 375). The complainant’s evidence was that she began shaking and passed out (19/4/23; T 136). The complainant estimated that she remained unconscious for a few minutes (26/4/23; T 376). When the complainant regained consciousness, she observed Mr Mehajer kneeling next to the toilet and banging his head against the toilet. The complainant’s evidence was that she was still in shock and sat in silence for a period of time, possibly half an hour, and then made a phone call to her friend, Ms Sophie Taylor (19/4/23; T 136). After speaking to Ms Taylor, the complainant left the Lidcombe residence and travelled by train to her parents’ home at Holgate. After arriving at her parents’ home, the complainant took a photograph of her bruised arm. The complainant sent the photograph to Mr Mehajer (19/4/23; T 137; 19/4/23; T 139; 26/4/23; T 371).

11. [15]

    Mr Mehajer was in custody for unrelated offences for various periods of time before and after Counts 1-4 (from 23 January 2018 to 4 April 2018, from 11 May 2018 to 9 June 2018, from 22 June 2018 to 21 May 2019 and on 4 June 2019) and then again after Counts 5-7 (from 27 November 2020) (Ex P).

12. [16]

    Prior to going into custody on 27 November 2020, following the trial before Zahra SC DCJ, and before the termination on 20 December 2020 by the complainant of their relationship, Mr Mehajer gave the complainant a number of mobile phones, including two which the complainant gave to Mr Mehajer’s associate, Yasser Nasser, in December 2020 (20/4/23; T 188). (This assumed some relevance in light of Mr Mehajer’s challenge at trial to the authenticity of text messages and photographs adduced in evidence by the Crown, to which I refer in due course.)

13. [17]

    The complainant made her first statement to police in relation to the personal violence offences on 21 December 2020 (20/4/23; T 176; T 184). The complainant provided to the police (both then and in 2021) various items from her mobile phone and the police took photographs of images and messages contained on the phone (19/4/23; T 131; T 132). The complainant also emailed Senior Constable James McGahon photos on her phone of her bruised arm (27/4/23; T 442; Ex R).

14. [18]

    In a recorded interview with SC McGahon on 21 January 2021, Mr Mehajer denied ever assaulting the complainant and denied each of the allegations in Counts 1-7 (Ex S). Mr Mehajer alleged that the complainant had created fake messages by texting herself from his phone (Q/A 61). Shown messages between himself and the complainant which included an image depicting the bruising on the complainant’s right arm following the 4 October 2020 incident (Counts 5/6), Mr Mehajer acknowledged the bruise in the image but said that “none of the text makes sense to me” (Q/A 235). Mr Mehajer alleged that the messages were a ‘set up’ and the complainant’s “plans of attack” (Q/A250-257). Mr Mehajer said that during the relationship, the complainant would access his phone when he was in the shower (Q/A 258-259).

Trial

1. [19]

   Mr Mehajer was committed for trial on the personal violence offences on 11 August 2021. The matter was first listed for trial on 6 June 2022.

2. [20]

   The trial of the personal violence offences was to be the first of four trials involving Mr Mehajer in 2023, the remaining three being: charges of making and using false documents to obtain a financial advantage (arising out of the making and use of a false affidavit and a false statutory declaration in connection with Mr Mehajer’s bankruptcy), that being the false documents offences referred to above which was listed for trial on 13 June 2023; charges of making false declarations for material benefit and dealing with identification information with intent to commit an indictable offence (arising out of falsely nominating drivers in statutory declarations with respect to traffic offences), listed for trial on 7 August 2023; and charges of doing an act to pervert the course of justice and concurring with a false statement with intent to cause financial disadvantage (arising out of a staged car collision), listed for trial on 9 October 2023.

3. [21]

   Mr Mehajer was denied bail with respect to the personal violence offences but on bail with respect to the remaining three trial matters.

4. [22]

   At the time Mr Mehajer was committed for trial he had the benefit of a grant of legal aid. That grant was terminated in November 2021. An appeal against the decision to terminate the grant of legal aid was refused by the Legal Aid Review Committee (LARC) on 2 March 2022 (see email dated 10 February 2023; VD Ex 2).

5. [23]

   The fact that Mr Mehajer was then unrepresented led to the vacation on 27 May 2022 of the initial 6 June 2022 trial date for the personal violence offences matter (as it also did for the other three criminal matters involving Mr Mehajer which had been listed for trial in 2022 and were vacated after the grant of legal aid to Mr Mehajer was terminated in November 2021). The personal violence offences matter was then listed for trial on 23 March 2023.

6. [24]

   On 14 July 2022, Legal Aid NSW (Legal Aid) informed Mr Mehajer that any further application would need to include information to demonstrate his eligibility under the relevant means test (see email dated 10 February 2023; VD Ex 2).

7. [25]

   On 4 January 2023, Mr Mehajer’s sister, Ms Zenah Osman (previously a legal practitioner) (30/3/23; T 159), wrote to the District Court on his behalf, seeking an urgent bail hearing with respect to the personal violence offences. That application was heard by Williams SC DCJ on 10 January 2023. On that occasion, Mr Mehajer was represented by Mr Tom Hughes Jnr of counsel and a solicitor, both having been privately retained for that application. Mr Mehajer was granted bail. However, he remained in custody due to the imprisonment sentence imposed by Zahra SC DCJ. On 31 January 2023, N Adams J, as her Honour then was, granted a detention application by the Crown. At the hearing of that application, Mr Mehajer was again represented by Mr Hughes and a solicitor, both again being privately retained for the hearing.

8. [26]

   In January 2023, Mr Mehajer sent a number of letters to Legal Aid requesting reconsideration of its decision in relation to the grant of legal aid. On 2 February 2023, Legal Aid sought further information from Mr Mehajer (letter dated 2 February 2023, VD Ex 3).

9. [27]

   On 15 February 2023, Mr Mehajer appeared before Williams SC DCJ, representing himself on another bail application. Mr Mehajer informed his Honour that he understood that Legal Aid was expecting further documents from him. Mr Mehajer expressed the belief at that time, based on the “past refusals of 11 months”, that he would again be refused legal aid (15/2/23, T 4) and said that “realising those assets and funding [for the trial] would take some time” (15/2/23; T 8). In support of his application for bail, Mr Mehajer submitted that he wanted to get on with the trial of the personal violence offences without vacating it (15/2/23; T 8). Williams SC DCJ refused the application for bail.

10. [28]

    Mr Mehajer’s renewed application for legal aid (with respect to all four criminal matters) was refused. On 3 March 2023, Legal Aid informed Mr Mehajer that his appeal against that refusal had been forwarded to LARC (see letter dated 3 March 2023, VD Ex 3). On 9 March 2023, LARC refused the appeal for failure by Mr Mehajer to provide full verification of his means (see letter dated 9 March 2023, VD Ex 3).

11. [29]

    On 15 March 2023, Huggett DCJ (as the Chief Judge then was) heard an application by Mr Mehajer to vacate the trial of the personal violence offences, on the basis that he was unrepresented and in custody (15/3/23; T 3-4). Mr Mehajer informed her Honour that his appeal against a refusal of legal aid had been unsuccessful (15/3/23; T 2). Mr Mehajer said that he understood, based on the decision of LARC, that he would not be receiving a grant of legal aid (15/3/23; T 4) but that he intended to provide further evidence from his trustee in bankruptcy to LARC, which would trigger a reconsideration of his eligibility for legal aid (15/3/23; T 12-13; T 14). Mr Mehajer said that, if he exhausted all avenues to secure representation, he intended to represent himself (15/3/23; T 13). The Crown opposed the application to vacate the trial (15/3/23; T 8).

12. [30]

    On 16 March 2023, the matter came back before her Honour. On that occasion, a solicitor employed by Legal Aid, Mr Robinson, informed her Honour that Mr Mehajer’s legal aid applications and appeals had been refused due to his failure to provide full verification of his means (16/3/23; T 2) but that the fact that Mr Mehajer had provided further information on 15 March 2023, meant that further enquiries would be triggered (16/3/23; T 3). Mr Mehajer informed her Honour that he relied on the fact that his assets had vested with the trustee in bankruptcy and that he had provided the trustee’s details to Legal Aid (16/3/23; T 4). Mr Robinson informed her Honour that whether legal aid would be granted depended on Mr Mehajer’s “fulsome and prompt response” to a request from Legal Aid for information (16/3/23; T 3; T 6). Mr Mehajer then said that he wished to withdraw his application to vacate the trial (16/3/23; T 8; T 12). Her Honour informed Mr Mehajer that he had a right to apply for a temporary or permanent stay (16/3/23; T 12) and the matter was adjourned to 20 March 2023.

13. [31]

    On 20 March 2023, Mr Robinson of Legal Aid again attended the Court. Mr Robinson informed her Honour that Mr Mehajer had provided “partial responses” and that a further decision on Mr Mehajer’s eligibility would be made in light of that information (20/3/23; T 1, 2). Mr Mehajer submitted that he did not have to provide further information to Legal Aid because he was in custody and a report of his trustee in bankruptcy provided information about his assets (20/3/23; T 5). (That report, to which I refer below at [46], included an observation to the effect that Mr Mehajer had not been forthcoming with information about his financial affairs.)

14. [32]

    On that occasion, Huggett DCJ provided information to Mr Mehajer in relation to a number of procedural matters (including the need to give an alibi notice where relevant, subpoenas for the attendance of witnesses, the protections in ss 102 to 104 of the Evidence Act 1995 (NSW) (Evidence Act) and good character evidence) (20/3/23; T 9-13).

15. [33]

    Mr Mehajer had earlier advised the Crown by letter dated 16 March 2023, a copy of which was before her Honour, (VD Ex 7) that all prosecution witnesses would be cross-examined and that the defence intended to call five witnesses. He estimated that the trial would take ten days (up to 12 days if he were to give evidence) and requested the Crown to allow for “1/2 day for a Basha inquiry”. Her Honour observed that Mr Mehajer seemed to have “a better knowledge of criminal law and matters related to evidence then [sic; than] many that come before the Court” (20/3/23; T 13). Her Honour informed Mr Mehajer about the additional duties of a trial judge where an accused is self-represented at trial (20/3/23; T 22). Mr Mehajer indicated that he intended to apply for a stay. Her Honour provided information about the procedure to do so (20/3/23; T 28).

16. [34]

    Mr Mehajer then filed a notice of motion seeking a temporary stay of proceedings on 20 March 2023 (29/3/23; T 113). That application was subsequently withdrawn (see below).

17. [35]

    On 23 March 2023, Mr Mehajer was advised by Legal Aid that LARC had disallowed his appeal against the decision refusing him legal aid because of his failure to provide verification of his means (see letter dated 23 March 2023; VD Ex 3).

18. [36]

    On Friday, 24 March 2023, when the matter was back before the Court, Mr Mehajer informed Huggett DCJ that “we’re just going to go to trial on Monday, Legal Aid has been refused” (24/3/23; T 1). Her Honour informed Mr Mehajer that enquiries were underway to arrange for a person to be appointed to put questions to the complainant (24/3/23; T 1-2) and that Mr Mehajer would need to prepare questions and provide them to the appointed questioner (24/3/23; T 2). On that occasion, Mr Mehajer said that his application to vacate the trial should be “completely withdrawn” because the Crown had “satisfied” certain information he had been requesting (24/3/23; T 6-7). However, Mr Mehajer did not foreclose the possibility of a future application (24/3/23; T 7; T 11-12).

19. [37]

    On 27 March 2023, the matter came before the trial judge for trial of the personal violence offences.

20. [38]

    On that occasion, Mr Mehajer said that he wished to apply for a stay of proceedings (27/3/23; T 3-4). Mr Mehajer indicated that he had been informed that the refusal of his applications for legal aid was final. Mr Mehajer said that he had been refused legal representation “at no fault of [his] own” and that he was found to fail the means verification test even though his assets had vested with the trustee in bankruptcy (27/3/23; T 4). Mr Mehajer also raised issues as to the unavailability of mobile phone evidence (27/03/23; T 3).

21. [39]

    Between 27 March and 5 April 2023, the trial judge heard both the temporary stay application and evidence on a voir dire in relation to the police investigation and efforts to obtain data from the phones belonging to the complainant and Mr Mehajer.

22. [40]

    On the temporary stay application, the trial judge received evidence going to Mr Mehajer’s financial circumstances, his bankruptcy and his applications for legal aid. In particular, Mr Mehajer relied on affidavits sworn by him on 27 March 2023 (VD Ex 6), 30 March 2023 (VD Ex 4) and 31 March 2023 (VD Ex 7); as well as a number of medical reports. Mr Mehajer gave oral evidence and was cross-examined by the Crown (30-31/3/23; T 156-194).

23. [41]

    Mr Mehajer’s trustee in bankruptcy, Mr Paul Weston, also gave evidence (30/3/23; T 128-132), and his reports were admitted into evidence (VD Ex 5). Mr Weston’s Report to Creditors dated 31 May 2021 (the Report) (which Mr Mehajer emphasises had been made in 2021, some time before the stay application) included references to Mr Mehajer’s lack of cooperation as well as Mr Mehajer having provided false declarations to justify the discovery of cash in his possession. In his evidence on the stay application, Mr Weston confirmed that he was about to embark on public examinations of Mr Mehajer’s financial affairs (30/3/23, T131.27), those examinations having become necessary due to Mr Mehajer’s failure to provide meaningful responses to the trustee’s requests for information about his financial affairs.

24. [42]

    Documents were produced under subpoena by Legal Aid (Ex VD 3). Mr Robinson again attended Court and provided information to the effect that: the information that Mr Mehajer had recently provided to Legal Aid was “incomplete and inadequate” (29/3/23; T 79; 29/3/23; T 84); Legal Aid had considered the discretion to waive the means verification requirements where an accused is in custody but had not exercised the discretion in Mr Mehajer’s case (29/3/23; T 79); and Legal Aid was not satisfied that Mr Mehajer had provided full disclosure of his means and could not be satisfied that he was unable to pay his legal costs (29/3/23; T 84). Mr Robinson referred to concerns that Legal Aid had about a loan agreement which Mr Mehajer claimed was the source of funds used to pay counsel’s fees in relation to Mr Mehajer’s bail applications; and said that, with one exception, Mr Mehajer had not provided copies of any invoices issued to him for privately engaged legal services (29/3/23; T 84).

25. [43]

    The Crown opposed the application for a stay of proceedings. It is not necessary here to summarise the respective submissions made on the application. However, I note (as reference was made to this in the respondent’s submissions) that during the course of the hearing of the stay application the trial judge said that “I’ve observed you in the course of the presentation of this matter, I’ve listened to you, I’ve gone through your evidence that you gave. You are articulate, you seem to me to have a significant capacity to represent your interests in these proceedings, reflected in the documents that you’ve gone to the trouble of preparing, as well as your oral evidence and the response to cross-examination”. In response, Mr Mehajer said that he had never been before a jury and that in a trial he would not have the same capacity as he does in relation to preparing affidavits (3/4/23; T 220). Mr Mehajer also asserted that this was not a simple “word on word” case and said that the procedure whereby he would provide questions to an appointed intermediary for the cross-examination of the complainant was itself complicated (3/4/23; T 221).

26. [44]

    The trial judge explained his “increased obligation” to ensure the fairness of the trial where an accused is unrepresented and assured Mr Mehajer that, if his application were refused and the trial proceeded, Mr Mehajer would have “every accommodation” that would be extended to an unrepresented accused, and that his Honour would ensure that his case was put fairly to the jury (3/4/23; T 220).

27. [45]

    On 5 April 2023, the trial judge refused the application for a temporary stay (R v Mehajer [2023] NSWDC 98 (stay judgment)), applying the principles summarised by Beech-Jones J, as his Honour then was, in R v Cranston [2020] NSWSC 469 in relation to an application for a stay of proceedings by an unrepresented accused (see [45], [95] of the stay judgment).

28. [46]

    The trial judge was not satisfied that Mr Mehajer had discharged his onus to show that he was indigent ([48]), referring in this regard to the history of requests from Legal Aid for verification of Mr Mehajer’s means, the evidence of Mr Weston ([85]-[87]) and Mr Mehajer’s own evidence ([88]-[89]). His Honour considered the Report (which noted Mr Mehajer’s non-cooperation with the administration of his estate, his receipt of advances from various entities, his past use of luxury motor vehicles and his access to cash ([107]-[111])) was “powerful evidence upon which the court would find that the accused has not met his burden of proof” ([114]).

29. [47]

    His Honour had no doubt that Mr Mehajer was competent and capable for the conduct of the trial, describing Mr Mehajer (with reference to his affidavits) as someone who is “articulate, can marshal his thoughts, and present argument in a logical and sensible manner” ([50]). His Honour said that the case was not a complex case ([56]) and that, in any event, the case was not such that Mr Mehajer would not be able to represent himself in light of his demonstrated competence ([101]). (Mr Mehajer cavils with those propositions, arguing that there is a difference between “presence and the capacity to represent [oneself]” – see AT 7 – and insisting that this was a complex case.)

30. [48]

    The trial judge referred to his own experience in conducting trials with unrepresented accused and the obligations of the Court to ensure fairness in such cases ([52]) and said that he was confident he could ensure that Mr Mehajer would have a trial conducted fairly, including by ensuring that he was informed of relevant principles as the trial unfolded ([55]) and apprised of matters he might raise in his case so that he could formulate his arguments and questions ([53]).

31. [49]

    His Honour was not satisfied that the evidence relating to Mr Mehajer’s health supported a conclusion that Mr Mehajer would not be able to conduct his trial ([78]). His Honour considered that, having observed him in court, Mr Mehajer’s presentation was consistent with an opinion by Dr John Roberts, (dated 10 April 2022) to the effect that Mr Mehajer’s mood disorder was “well controlled with current medication such that his mental status in terms of mood and affect is within normal limits” ([76], [78]; see p 11 of Dr Roberts’ report). His Honour said that there was no aspect of Mr Mehajer’s presentation before him that caused him concern about Mr Mehajer’s capacity to conduct the trial without the assistance of a lawyer ([79]).

32. [50]

    On 11 April 2023, Mr Mehajer applied for leave pursuant to s 5F of the Criminal Appeal Act to appeal the temporary stay decision.

33. [51]

    On 12 April 2023, Mr Mehajer was arraigned before the trial judge and a jury (12/4/23; T 17-18). When the jury was empanelled, the trial judge informed the jury that Mr Mehajer was unrepresented and directed the jury not to draw any inference adverse to Mr Mehajer from that fact. His Honour explained to the jury that it is the right of every person to have a fair trial, and that it was the trial judge’s job to ensure that Mr Mehajer received a fair trial (12/4/23; T 23). The proceedings were then adjourned to enable Mr Mehajer’s application for leave to appeal against the temporary stay decision to be determined.

34. [52]

    Leave to appeal was refused on 17 April 2023. The Court of Criminal Appeal (Davies, Ierace and Cavanagh JJ) noted that Mr Mehajer had the onus to prove, on the balance of probabilities, that he was indigent (Mehajer v R [2023] NSWCCA 101 (the s 5F decision) at [63]) and that one factor which may lead the Court not to be so satisfied is evidence that an accused has not been transparent and forthcoming in relation to his or her finances ([65]). The Court found that it was open to the trial judge not to be satisfied that Mr Mehajer had established that he was indigent ([112]). The Court also observed that Mr Mehajer’s submissions were “to a large extent, well-written and appropriate” ([69]).

35. [53]

    Following the s 5F decision, Mr Mehajer’s trial on the personal violence offences commenced on 18 April 2023.

36. [54]

    On that occasion, Mr Mehajer attended the court in prison attire and indicated (in the absence of the jury) that he might go on a hunger strike (18/4/23; T 46) (which he apparently did not do). When the proceedings before the jury resumed, the trial judge gave the jury directions in light of the fact that it was apparent from Mr Mehajer’s attire that he was in custody (18/4/23; T 55-56). There is no complaint about those (or any other) directions given by the trial judge.

37. [55]

    The Crown tendered, without objection, a number of screenshots taken by the complainant, which contained messages between Mr Mehajer and the complainant (Ex D; Ex E; Ex G; Ex H; Ex J) and photographs of bruising to the complainant’s arm.

38. [56]

    Relevantly, Ex G included screenshots of messages sent or received by the complainant following the incident on 4 October 2020. In one of the messages, the complainant referred to “the bruise you made on my arm”. The complainant then sent Mr Mehajer a photograph of her right arm (Ex G, pp 5-6). After this, Mr Mehajer sent a text message saying “Firstly, it was a mini mars bar and snickers that did that. Secondly, I didn’t mean it. So sorry. Thirdly, [the] only reason why I’m also not ready to see you because your shaking scares me and keeps playing up in my head” (Ex G, p 7). (In cross-examination at trial, the complainant rejected the proposition that the item Mr Mehajer threw at her on 4 October 2020 could have been either a “mini Mars or Snickers chocolate bar”. The complainant said that, while she did not see the item, it felt a lot heavier and a lot harder (26/4/23; T 370; T 374).)

39. [57]

    As adverted to above, at trial, Mr Mehajer challenged the authenticity of the screenshots and of the text messages (although, as the respondent notes, the cross-examination of the complainant as to the proposition that the item thrown at her could have been a mini Mars bar or Snickers bar was seemingly premised on the authenticity of his message in Ex G – see 4/5/23; T 835.37). In this regard, Mr Mehajer raised the possibility (through cross-examination of various witnesses) that text messages had been inserted or deleted; that the messages had been created or manipulated by the complainant and/or Mr Nasser by the use of two devices; and that the photographs of bruising on the complainant’s arm were from an earlier occasion when the complainant had surgery.

40. [58]

    The complainant in cross-examination rejected the proposition that messages had been deleted (it was put to her that the screenshots provided to the police did not contain messages that had been deleted) (26/4/23; T 378). The complainant accepted that it was possible for messages to be deleted or for false messages to be created using two devices but rejected the proposition that she had ever created false screenshots or had ever shown false screenshots to Mr Mehajer (26/4/23; T 379).

41. [59]

    In response to the challenges to the authenticity of the screenshots and text messages depicted in them, the Crown called an expert witness, Detective Technical Sergeant Adam Catto-Pitkin. DTS Catto-Pitkin testified that he was able to locate the screenshots (contained in Exs G, D, J and H) on the complainant’s iCloud account (T 807). DTS Catto-Pitkin located three photographs of the complainant’s bruised arm, which were taken on 5 October 2020 (T 766; T 774; T 814; (T 817); (Ex X, pp 12-13). He prepared a document in which he reproduced the screenshots and the three photographs with the relevant data for each file (Ex X pp1-13). The metadata for the three photographs on the complainant’s iCloud account (Ex X pp 12-13), dated the photographs as having been taken on 5 October 2020 (the day after the incident the subject of Counts 5/6), thus verifying the provenance of those photographs (and being consistent with the complainant’s evidence). DTS Catto-Pitkin said that there was no evidence of manipulation of those photographs. (These are the photographs that Mr Mehajer asserts were photoshopped.)

42. [60]

    DTS Catto-Pitkin examined the complainant’s iCloud account (where the screenshots were saved) and gave evidence to the effect that the naming, location and dates of the files appeared consistent with default settings on the complainant’s phone and ordinary usage of the device (i.e., the files were saved incrementally to the iCloud account); and that he did not observe evidence suggestive of the manipulation of the data (3/5/23; T 760-767). In cross-examination, DTS Catto-Pitkin accepted that it was not possible to verify the exact dates on which text messages were sent or received (because the properties or metadata available related to the screenshots not the underlying messages) (4/5/23; T 808). Exhibit X was tendered on 4 May 2023 containing the screenshots and images with the corresponding properties or metadata in relation to the screenshots.

43. [61]

    On Mr Mehajer’s application (opposed by the Crown), the complainant was recalled for further cross-examination (4/5/23; T 836; T 841-846). Acceding to Mr Mehajer’s application for the complainant to be recalled, the trial judge said (T 797.35):

44. [62]

    Upon being recalled, the complainant rejected the proposition that she had changed or deleted anything in the material she produced or that she or Mr Nasser had created or manipulated false screenshots or messages (4/5/2023; T 836; T 841; 4/5/23; T 845-846).

45. [63]

    On 5 May 2023, (5/5/23; T 885), Mr Mehajer informed his Honour that there was a potential expert witness that he needed to call (5/5/23; T 885). Mr Mehajer made an application to adjourn the trial to investigate the availability of an expert to look at the possibility of manipulation of the images in Ex X (see 5/5/23; T 863), saying that he had realised something late the previous afternoon, namely that the three images were photoshopped (5/5/23; T863). In the absence of the jury, Mr Mehajer told his Honour that his understanding was that the potential expert witness was a former officer from the Australian Federal Police and that his evidence related to Mr Mehajer’s submission that the complainant had “tampered with her mobile phone” (5/5/2023; T 887-886). Mr Mehajer told his Honour that he did not know what the expert might say (T 888).

46. [64]

    In the course of that exchange, Mr Mehajer said that “just to be clear about this motherboard issue, I would not be raising this question if it wasn’t for recent photographs I received yesterday that I say they have been Photoshopped. The motherboard is just a supplementary question I’ll be asking” and then said “if these photos are not Photoshopped, I’ll plead guilty to every single charge… these photos are completely Photoshopped… there’s an app on the iPhone that can, can do that within a number of seconds” (5/5/23; T 888-889). Mr Mehajer here points out that he had then proposed the alternative course of further recalling the complainant (apparently to ask her if the photograph images had been photoshopped or manipulated) (5/5/23; T 892.27).

47. [65]

    The trial judge did not allow the complainant to be recalled again at that stage; nor did he give leave for Mr Mehajer to call the proposed expert witness (giving reasons for that decision). The basis of that ruling (that he would not delay the trial to allow Mr Mehajer the opportunity to investigate the availability of a witness to consider his proposition that images were “Photoshopped”) was pursuant to s 135 of the Evidence Act. His Honour said that it was unknown what evidence there might be if Mr Mehajer undertook the proposed investigation and that the investigation would of itself involve a significant loss of time (R v Mehajer (No 3) [2023] NSWDC 197 at [54]-[56]).

48. [66]

    The trial judge said that the proposition that the images had been photoshopped was “no more than speculation in the absence of any basis upon which it could be known that the complainant had done any such thing” (see at [43]). Pausing here, there is no challenge to this ruling, although the “fresh and new evidence”, the subject of Ground 2 relates in part to Ex X, since Mr Mehajer wishes to recall the complainant to ask her, in effect, whether the images in question were photoshopped – see below.

49. [67]

    Also in evidence was an exchange of messages between the complainant and her friend, Ms Taylor, on 4 October 2020, after the complainant left the Lidcombe residence, in which the complainant described aspects of the incident in Count 7 (Ex F), including bruising to her arm. Both the complainant and Ms Taylor gave evidence confirming the text message exchange (complainant at 19/4/23; T 137-138; Ms Taylor at 28/4/23; T 532-533).

50. [68]

    Context evidence was admitted without objection. The complainant gave evidence about her relationship with Mr Mehajer, which she described as a “cycle of abuse” (26/4/23; T 361). The complainant said that there were “countless” occasions where Mr Mehajer prevented her from leaving the house when she wanted to leave (19/4/23; T 141); that there were occasions where Mr Mehajer became aggressive, and the complainant would stay with her parents “when things got really bad” and that she would subsequently return to stay with him (19/4/23; T 124); and that, for a period of time, she also stayed in a hotel because Mr Mehajer was violent (20/4/23; T 207).

51. [69]

    The complainant also described an (uncharged) incident in January 2020, where Mr Mehajer threw a glass of water at her; and the glass missed the complainant, hit a wall and smashed (19/4/23; T 123). The complainant’s mother, Ms T, gave evidence of complaint, including in relation to an occasion where the complainant told her that Mr Mehajer had thrown a glass of water at her (27/4/23; T 408). Ms T also described a conversation with the complainant in October 2020 (on the Crown case, following the incident in Counts 5-7), when Ms T said the complainant came to her home and showed her a big bruise on her arm (27/4/23; T 410). The complainant told her mother on a number of occasions that she was scared of Mr Mehajer (27/4/23; T 410), and that Mr Mehajer had made threats to kill Ms T (27/4/23; T 411).

52. [70]

    There was also evidence of complaint made by the complainant to Dr Sze Ah Cecilia Lee at Restwell Street Medical Centre in Bankstown. Dr Lee’s notes recorded that, in a consultation on 17 July 2020, the complainant described having been threatened verbally by her partner and having been subject to physical abuse (Ex U, p 1). Dr Lee’s note dated 8 October 2020 (four days after the incident giving rise to Counts 5-7) included “Physical abuse from partner over the weekend” (Ex U, p 2). Dr Lee gave evidence that she did not observe bruising or physical injuries when she saw the complainant on 8 October 2020 (28/4/23; T 525) and could not recall what her examination of the complainant entailed (28/4/23; T 526). Dr Lee did recall the complainant describing that her mouth and nose had been covered “as part of the physical abuse over the weekend” (28/4/23; T 526).

53. [71]

    On 9 May 2023, the trial concluded. On 10 May 2023, the jury returned verdicts of guilty on Counts 1-5 and 7.

54. [72]

    After the verdict, Mr Mehajer sought appeal bail, in part on the basis that an expert was preparing a report as to the proposition that the Ex X images (pp12-13) had been photoshopped (11/05/23; T 4.25). The application for appeal bail was adjourned to 17 May 2023 (Mr Mehajer having indicated that the report would be served by then). No such report was ever served and the application for appeal bail was withdrawn by Mr Mehajer (17/5/23; T 1). There is no evidence as to the steps, if any, taken to obtain such a report. Mr Mehajer informed this Court that it was not possible to obtain such a report without the actual file images (hence, his application now to recall the complainant to cross-examine her on that issue) (AT 44).

55. [73]

    Following the jury verdicts in relation to the personal violence offences, Mr Mehajer stood trial before the trial judge and a different jury in relation to the false document offences. Mr Mehajer was legally represented at that trial (after obtaining a grant of legal aid for that trial). Mr Mehajer was found guilty by the jury of those charges on 30 June 2023.

56. [74]

    As noted above, the trial judge sentenced Mr Mehajer for the personal violence and false documents matters together. It is not necessary here to refer in any detail to the sentence judgment, save to note that Mr Mehajer refers to the observation made by the trial judge, in sentencing, that, were he imposing an aggregate sentence in respect of the fraud matters only, it would have been a sentence of 2 years and 9 months (sentence judgment at [261]).

57. [75]

    As to the third and fourth of the 2023 trials in which Mr Mehajer was involved, he subsequently pleaded guilty to charges in the third matter and the fourth matter. Mr Mehajer was sentenced with respect to those matters by Hunt DCJ on 22 October 2024.

58. [76]

    Before turning to the proposed grounds of appeal against conviction, it is relevant to note that, prior to the hearing in this Court, Mr Mehajer filed a notice of motion seeking to “recall” the complainant to give evidence on appeal. On 19 May 2025, the respondent filed written submissions in relation to that application, addressing the principles relevant to the Court’s power to order a person to attend and be examined in s 12(1)(b) of the Criminal Appeal Act.

59. [77]

    On 29 May 2025, the Registrar refused that application. There was no application to challenge or review that decision. Indeed, Mr Mehajer informed the Registrar by letter dated 12 June 2025 (Annexure B to the affidavit affirmed by Ms Ey, the solicitor for the respondent, on 17 November 2025) that he did not wish to review that decision.

60. [78]

    In an affidavit sworn by him on 17 November 2025 in support of the notice of motion, Mr Mehajer deposed that the “main” reason he did not challenge the Registrar’s decision was that he was then due to be released on parole in approximately eight weeks (see [6]). Mr Mehajer also deposed ([7]) that he believed that once released he would be able to obtain a new SIM card and access his iCloud account which would allow him to “vet” the images in issue (the images in Ex X). Mr Mehajer here relies on his subsequent discovery that it was not possible to do so, as a change in circumstances in support of the fresh application made by him at the outset of the hearing before this Court to recall the complainant to give evidence on appeal.

61. [79]

    The application now pressed by Mr Mehajer to adduce “fresh and new evidence” (see the notice of motion attached to Mr Mehajer’s 14 November 2025 affidavit explaining what had happened to his proposed legal representation for the appeal proceedings) relates to both the evidence he seeks to obtain from the complainant (as to the alleged photoshopping of the Ex X images) and an affidavit from a solicitor, Ms Mooney, to which I refer in due course, going to a different issue (the complainant’s evidence as to having responded to an email from Ms Mooney).

62. [80]

    As to the evidence proposed to be sought from the complainant, Mr Mehajer submitted that the complainant’s response(s) to the question he wished to put to her (as to whether any images in Ex X were “doctored”) would determine the merit of Ground 2 of the appeal. Further, Mr Mehajer said that if the complainant did say on oath that the images in issue are not doctored then (consistent with the similar position he took at the trial) he would “forfeit” Ground 2 of his conviction appeal (AT 44).

63. [81]

    Having considered the submissions made in relation to the application to adduce fresh/new evidence, and Mr Mehajer’s affidavit in support of that application, we refused the application. Briefly, the reasons for so doing were as follows.

64. [82]

    First, the delay in bringing this application. Mr Mehajer accepted that he had left the application to “the very last minute” and that he had a number of months in which to make the application (during at least part of which time I note Mr Mehajer appears to have had the benefit of legal representation). Mr Mehajer said that he only made the decision to file the motion when he became “self-represented or known to be formally self-represented” as of Friday 14 December 2025. It is unclear what Mr Mehajer meant by “known to be formally self-represented”. Certainly, when the hearing of his matter in this Court was adjourned by me on Mr Mehajer’s application in August 2025, this was on the basis that Mr Mehajer had confirmed that he would have legal representation for the appeal proceedings (informing me that Ms Zali Burrows, solicitor, would be able to file a notice of appearance that afternoon and that Ms Hawkins of counsel was willing to appear for him on the appeal and was available on 17 December 2025, the date on which the appeal was ultimately re-listed). No notice of appearance was filed by Ms Burrows nor did Ms Hawkins appear for Mr Mehajer on the hearing of the appeal.

65. [83]

    The delay in bringing the application to adduce further evidence from the complainant until the very morning of the appeal proceedings being heard is a powerful factor against the application, particularly as one would assume it would be necessary, if the application were successful, to adjourn the proceedings for at least some time so that arrangements could be made to procure the complainant’s attendance at court (whether by AVL or otherwise).

66. [84]

    Second, Mr Mehajer made clear that this application should be taken as a fresh application (not an application out of time for review of the Registrar’s decision) (see AT 6.30). Presumably for that reason, Mr Mehajer submitted that there had been a change of circumstances since the last application was made (that being his discovery that without the actual files he cannot obtain the expert’s report that had been anticipated). The problem with that submission is that as far back as May 2023, Mr Mehajer had indicated to the trial judge (in the context of his then appeal bail application) that a report was being prepared. One would assume that if that was the case, Mr Mehajer would have been well apprised by the expert as to what was required from a digital point of view – and he has had plenty of time to ascertain whether that was possible and, if not, make an application well before now of the kind he now makes. In any event, what is clear is that Mr Mehajer made a forensic decision in June 2025 not to challenge the rejection of his application to recall the complainant.

67. [85]

    Third, and in my view, this is determinative, it is sheer speculation as to what evidence the complainant would give if she were asked directly whether the images had been photoshopped. I cannot accept that it is likely that she would agree that they had been photoshopped (as Mr Mehajer believes she would) in circumstances where she appeared to be adamant (by reference to the transcript of the trial) that the screenshots and underlying messages and images had not been manipulated and that no false screenshots had been created (which on a fair view of her evidence would encompass the images forwarded by her of the bruising to her arm).

68. [86]

    Mr Mehajer accepts in his written submissions that evidence from the complainant on this issue would be “new evidence” (having regard to the distinction between fresh and new evidence articulated in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 by Kirby J (Mason P and Levine J agreeing) at [63] and considered in Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [433]-[434] by the Court (Bathurst CJ, R A Hulme and Beech-Jones JJ)). (See also Mehajer v R [2022] NSWCCA 240 at [124]; Adanguidi v R [2024] NSWCCA 82 (Adanguidi), at [13]).

69. [87]

    Mr Mehajer therefore accepts that he bears the onus to show that the absence of the “new evidence” at the trial resulted in a miscarriage of justice (Mr Mehajer here citing TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [63] per McHugh J; and see also Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, per Barwick CJ at 520). Mr Mehajer accepts that the “new” evidence is to be considered in light of the evidence led at trial (Adanguidi at [12]).

70. [88]

    As the respondent points out, the “new” evidence must be of such cogency that innocence is shown to the Court’s satisfaction, or is such to give rise to a reasonable doubt as to guilt (see WG v R; KG v R [2020] NSWCCA 155 (WG v R; KG v R), per Bathurst CJ at [1015]) and, where the proposed new evidence does not raise a “significant possibility that the jury acting reasonably would have acquitted” the appropriate course is to reject its tender (Franklin v R [2021] NSWCCA 260 at [126]-[127]).

71. [89]

    In the present case, as noted above, the proposed “new evidence” is no more than speculation. That of itself is sufficient to warrant the dismissal of the application to “recall” the complainant.

72. [90]

    As to the second aspect of the application, annexed to an affidavit from Ms Mooney affirmed on 12 December 2023 is a copy of an email which she had sent to the complainant on 9 December 2022, in which she requested a return of Mr Mehajer’s property. Ms Mooney deposes to having conducted a search of her email account and to having not located a response from the complainant. During the trial, Mr Mehajer sought production of Ms Mooney’s email (27/4/23; T 484; MFI 44) and the complainant provided the Officer in Charge with a copy of an email from Ms Mooney, which was consistent with that produced by Ms Mooney, and an email response by the complainant dated 9 December 2022 (MFI 54). Mr Mehajer says that, after the trial, he received information suggesting that the email produced by the complainant is a “non-bona fide document” (see his affidavit at [29]).

73. [91]

    Mr Mehajer submits that the “fresh evidence” from Ms Mooney undermines the complainant’s credibility by reference to her evidence at trial (in which the complainant said that she believed she had replied to the email (24/4/23; T 284.41)). He says that the complainant is someone who lies in circumstances where she would be expected to tell the truth and says that the new evidence reinforces his position that the complainant has a desire to manipulate evidence.

74. [92]

    The respondent submits (and I agree) that Ms Mooney’s affidavit is new (not fresh) evidence because the information was constructively available to Mr Mehajer at trial. Further, I accept the respondent’s submission that this proposed evidence does not support the inference Mr Mehajer seeks to advance and it is therefore not relevant to the complainant’s credit as an exception to the credibility rule (ss 102 and 106 Evidence Act) and, as such, would be inadmissible.

75. [93]

    The evidence does not establish Mr Mehajer’s innocence or give rise to any reasonable doubt as to his guilt. As the respondent submits, the new evidence does not establish that the complainant did not tell the truth, given that there may be a number of explanations as to why Ms Mooney did not locate the complainant’s response when she searched her email account (including possible limitations in the search for the email which was undertaken a year after the email response). The respondent submits, and I accept, that without expert evidence (including an analysis by a digital data expert of Ms Mooney’s email), the inference that Mr Mehajer seeks to draw (namely that the complainant lied about sending an email to Ms Mooney) is not available. Mr Mehajer’s submission amounts to no more than speculation.

76. [94]

    For those reasons, the application to adduce fresh/new evidence on the appeal was refused.

77. [95]

    As amended, the proposed grounds of appeal against conviction are as follows:

78. [96]

    The only proposed ground of appeal now sought to be pressed on the sentence appeal is the following:

Conviction Appeal

1. [97]

   Although logically, Grounds 1 and 3 are distinct (the former being a complaint as to miscarriage of justice by reason of the denial of the temporary stay application prior to the commencement of the trial; the latter being a complaint as to the failure to adjourn the trial after it had commenced), Mr Mehajer’s submissions on those grounds overlapped to a considerable extent and were largely dealt with together in oral submissions. The overlap lies in the submissions as to the fairness of the trial following the refusal of an adjournment and subsequent continuation of the trial. Accordingly, I will deal with the specific complaints in Grounds 1 and 3 first, before addressing the submissions as to the perceived unfairness of the trial and then turning to Ground 2.

2. [98]

   Unsurprisingly, given that the wording of proposed Ground 1 closely tracks the wording of the observation by Dawson J in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (Dietrich) at 342-343, Mr Mehajer places much weight on what was said in Dietrich by Dawson J (at 342-343 and 344) and by Gaudron J at 376-377, in particular as to the refusal of an adjournment which denies a reasonable opportunity to obtain legal representation being sufficient without more to cause the trial to miscarry. Mr Mehajer also places weight on what was said by this Court in Small v R (1994) 33 NSWLR 575 at 590; (1994) 72 A Crim R 462, where the Court of Criminal Appeal quoted the statement of Barwick CJ in McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65 (McInnis) at 579 that the “trial judge ought very seriously to consider whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay”.

3. [99]

   Mr Mehajer complains that he was denied a right to avail himself of counsel “when that right existed” and notes that he continued to press his desire to overcome the “verification” issue (and obtain legal representation) during the course of the trial (referring, by way of example, to an exchange in the absence of the jury on Day 3 of the trial, in the context of a request for assistance in relation to correspondence from Legal Aid) (18/4/23; T 74) and to statements he made earlier in the trial in which he did not accept that he had exhausted all avenues of legal aid (3/4/23; T 221-222; 29/3/23; T 106). Mr Mehajer also refers to a hand written letter he wrote to the trial judge, which his Honour read out to the Court (24/4/23; T 270), in which he expressed his inability to run his own matter and his difficulty with a lack of resources in custody, particularly with cross-examination, as evidencing his desire not to proceed unrepresented.

4. [100]

   Mr Mehajer contends that it has now been established that the trial judge erred in concluding that he had “exhausted all avenues for legal assistance”, referring to the subsequent grant of legal aid in respect of his trial for the false documents offences, and complains that the trial judge maintained the view that an adjournment for the purpose of enabling him to communicate with Legal Aid would be futile and did not consider any other course, such as a short adjournment, in relation to this.

5. [101]

   Mr Mehajer attaches some significance to the fact that the question whether he was unable to obtain legal representation “through no fault of his part” was not raised before the trial judge (referring to the approach advocated in Dietrich (at 315) by Mason CJ and McHugh J of adjourning, postponing or staying the trial of an indigent accused charged with a serious offence who, through no fault of his or her part is unable to obtain legal representation). Mr Mehajer argues, by reference to the above passage in Dietrich, that it is not the case that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation, must automatically preclude entitlement to a stay (or adjournment) of proceedings (referring to the view expressed by Olsson J in the Full Court of the Supreme Court of South Australia (South Australia v Russell (1994) 62 SASR 288 at 302; 71 A Crim R 497) and, on appeal, quoted with approval by the High Court in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig)) and to the statement of the High Court in Craig (at 184) to the effect that there remains power to grant a stay on the grounds of inability to obtain legal representation even where there has been, “as a matter of objective fact, contributing fault on the part of the accused”.

6. [102]

   Mr Mehajer argues that the trial judge misinterpreted the facts when stating; that Legal Aid and his trustee in bankruptcy were not satisfied that he had been completely and entirely accurate or honest in the material that he provided them from time to time and that Legal Aid did not accept that he has been full and frank when informing them of his circumstances and responding to their requisitions for further information (stay judgment at [82]). Further, Mr Mehajer says that the trial judge misconstrued the evidence given by Mr Robinson (namely, that the documents recently provided by Mr Mehajer were incomplete and inadequate; and that Mr Mehajer had not advised that there were any other accounts but the trustee’s Report listed an NAB mortgage and two properties owned by him) (29/3/23; T 84). Mr Mehajer maintains that his Honour erred in concluding that he was not being full and frank when informing Legal Aid of his circumstances; rather, he says that Mr Robinson’s evidence was that his responses were “merely” incomplete and inadequate.

7. [103]

   Mr Mehajer emphasises his status as a bankrupt and the automatic vesting of his property in the trustee in bankruptcy (which Mr Weston acknowledged; 30/3/23; T 129) and maintains that he was (and remains) indigent (in the sense of lacking the means to engage appropriate legal representation – referring to R v Warwick (No 64) [2019] NSWSC 163; R v Marchi (1996) 67 SASR 368; (1996) 91 A Crim R 112). He contends that the trial judge erred in concluding otherwise. In that regard, Mr Mehajer refers to the fact that he was in custody at the time of the trial and says he was without any direct source of income in that period. Mr Mehajer says that there was no positive evidence before the Court to suggest that he had assets available to him (and he asserts that this was conceded by the Crown) (31/3/23; T 206). (Pausing here, this inverts the onus which lay on Mr Mehajer to prove indigence, as was noted in the s 5F decision).

8. [104]

   Referring to the Legal Aid requirements for satisfaction of the “verification” test, Mr Mehajer submits that if all the facts had been properly investigated, and he had legal representation (which rather begs the question since the very purpose of the application for an adjournment was to obtain representation), the Court would have granted him an adjournment pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW), and, if new information had come to hand subsequent to the decision of LARC, a redetermination of an application for legal aid under s 34(1) of the Act would be relevant. As I understand it, this submission is to the effect that there was a reasonable opportunity that he would have obtained a grant of legal aid for representation at the trial had the adjournment been granted.

9. [105]

   Addressing those submissions, the respondent submits that Dietrich is authority for the principle that the common law does not recognise the right of an accused to be provided with counsel at public expense (citing Mason CJ and McHugh J at 298, 311, Deane J at 330, Dawson J at 343 and Gaudron J at 364; and referring also to McInnis per Barwick CJ at 579). The respondent argues that the interests of justice do not require that in any case where a trial may result in conviction and an indigent accused wishes to be represented there be a stay of proceedings (referring to the principles confirmed by the Court of Criminal Appeal in the s 5F decision at [60]-[62]).

10. [106]

    To the extent that Mr Mehajer seeks to challenge the trial judge’s findings that he did not discharge the onus of proving his indigence and to raise arguments already determined in the s 5F decision, the respondent relies on the principle of finality (citing D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, per Gleeson CJ, Gummow, Hayne and Heydon JJ at [34]; Burrell v the Queen (2008) 238 CLR 218; [2008] HCA 34, per Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ at [16]; and referring also to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 at 303 and Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10, per French CJ, Crennan, Kiefel and Bell JJ at [14]).

11. [107]

    While the respondent accepts that, in the context of a conviction appeal, the principle of finality does not foreclose consideration of the impact of a trial judge’s decision where an interlocutory appeal against that decision has been refused (referring to Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62, per Johnson J at [184], [214], [234] (McClellan CJ at CL and James J agreeing)), the respondent submits that consideration of whether miscarriage has been demonstrated is not an opportunity for the re-opening of the decision made on an interlocutory appeal; rather, the assessment focuses on what actually happened at trial (referring to WG v R; KG v R, per Fullerton J at [1129], [1131], [1135] (Bathurst CJ and Fagan J agreeing); R v Guldur (1986) 8 NSWLR 12, per Street CJ at 15 (Maxwell and Campbell JJ agreeing)). Here, the respondent submits that Mr Mehajer has failed to demonstrate any error or miscarriage in relation to the temporary stay decision or in relation to the fairness of the trial.

12. [108]

    The respondent argues that the finding that Mr Mehajer did not discharge his onus on the issue of indigence was supported by compelling evidence, noting that his Honour referred to information in the Report (see [46] above) as to Mr Mehajer’s access to luxury vehicles, significant amounts of cash and advances from related entities and pointing to Mr Weston’s evidence as to the need for public examinations in relation to Mr Mehajer’s financial affairs. The respondent says that Mr Mehajer’s failure to be transparent and forthcoming in relation to his finances was a relevant factor in concluding that he did not discharge the onus on the balance of probabilities (referring to the s 5F decision at [65] where that was noted).

13. [109]

    The respondent submits that it was well open to his Honour (in light of the information Mr Robinson provided to the Court and the letter dated 9 March 2023 from Legal Aid) to infer that Legal Aid did not accept that Mr Mehajer had been full and frank but the respondent says that in any event his Honour’s observations as to the findings of Legal Aid were not central to his consideration of the issue of indigence. It is noted that his Honour said at [83] of the stay judgment that “[i]t is not for this court to embark upon an investigation of those findings and the reasons behind them. It is the fact that the accused is denied access to funds that is significant”.

14. [110]

    Insofar as Mr Mehajer relies on the subsequent grant of legal aid, the respondent points out that this was an event which postdated the temporary stay decision (and the s 5F decision) and cannot establish an error in the earlier exercise of discretion not to grant a stay. Further, the respondent points out that the basis of the decision to grant Mr Mehajer legal aid after the trial of the personal violence offences is unclear (noting that at the time of the temporary stay hearing Legal Aid had declined to exercise its discretion to grant legal aid to Mr Mehajer in the absence of a satisfactory verification of his means – see 29/3/23; T 79).

15. [111]

    The respondent argues that, on the evidence before the trial judge, there was no basis for his Honour to conclude that funding would become available for Mr Mehajer’s legal representation if a stay was granted and that the fact that Mr Mehajer had been in custody since November 2020 was an important consideration against further delay in the prosecution of the matter, particularly in light of the trial judge’s assessment that Mr Mehajer would be able to defend himself with appropriate assistance and accommodation throughout the trial. Referring to the comments by Barwick CJ in McInnis (at 579) on which Mr Mehajer has relied, the respondent submits that, on the evidence before the trial judge, there was no reasonable possibility that Mr Mehajer would retain the services of counsel without unreasonable delay.

16. [112]

    There was no error by the trial judge in concluding that, on the evidence before him, all avenues for legal aid had been exhausted. In his affidavit of 27 March 2023, Mr Mehajer had himself deposed that he could not take the information he had provided to Legal Aid any higher, and that he understood that Legal Aid’s refusal was final (VD Ex 6, [8]-[9]).

17. [113]

    There was no error by the trial judge in having regard to the trustee’s 2021 Report, in circumstances where Mr Weston gave evidence which supported the conclusion that Mr Mehajer had not been full and frank in his disclosure of assets and the position of Legal Aid was that there had been incomplete and inadequate provision of information by Mr Mehajer as to his assets. Mr Mehajer’s reliance on the proposition that his assets had automatically vested in the trustee in bankruptcy does not answer the concerns of Legal Aid as to the source of funding for Mr Mehajer’s private representation at the bail hearings and the suggestion of access to other assets. Nor can I accept the submission by Mr Mehajer to the effect that his Honour misapprehended what Mr Robinson had said and that his (Mr Mehajer’s responses) were simply said to be “merely” incomplete and inadequate. This downplays the significance of the concerns being expressed by Legal Aid and does not preclude the inference that he had not been full and frank in his responses as to his assets.

18. [114]

    As to the complaint that there was no positive evidence that he had assets available to him, this ignores that (as adverted to above and as Mr Mehajer himself concedes), the onus was on Mr Mehajer to establish that he was indigent. While I accept that this appeal is not an occasion to re-argue the matters determined in the s 5F decisionl, having regard to the principle of finality, the conclusion that Mr Mehajer had failed to discharge the onus on that issue was supported by the evidence before the trial judge in that respect. No error in the findings by the trial judge on that issue has been established. In any event, the fact of indigence (had Mr Mehajer discharged his onus) would not have mandated a stay of the proceedings, there being no absolute right to legal representation. And, for completeness, the fact that no one expressly addressed whether Mr Mehajer’s asserted indigence was through no fault of his own leads nowhere.

19. [115]

    The history of the legal aid applications and appeals and the evidence before the trial judge at the time amply makes clear that the refusal of the adjournment application did not deprive Mr Mehajer of a reasonable opportunity available to him at that time to obtain legal representation. The fact that, for whatever reason, legal aid was subsequently granted for the trial of the false documents offences does not bespeak error in the decision not to grant the stay application in respect of the personal violence offences trial; that being an event subsequent to the exercise of discretion which is now the subject of challenge (see, by way of example, Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, per Gaudron, McHugh, Gummow and Hayne JJ at [22]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, per Gleeson CJ, Gaudron and Hayne JJ at [12]; Kitson v R (2022) [2022] NSWCCA 166; 300 A Crim R 469, per Bell CJ at [32], Gleeson JA and Yehia J agreeing (a decision dealing with a challenge to the exercise of sentencing discretion)). It cannot be inferred, from the fact of the subsequent grant of legal aid, that, had an adjournment been granted prior to the commencement of the trial of the personal violence offences, a further application for legal aid would have been successful within a reasonable time.

20. [116]

    His Honour gave careful consideration as to whether the stay should be granted or the trial should proceed, taking into account relevant matters, including; the nature of the issues in the case, his assessment of Mr Mehajer’s ability, with appropriate assistance and accommodation for his lack of legal representation, to conduct his own defence, and to the delay there had already been in the prosecution of the personal violence offences. Mr Mehajer’s trial had already been delayed for almost a year to give Mr Mehajer an opportunity to obtain legal representation and, on the evidence before the trial judge, refusal of legal aid was final and Mr Mehajer had exhausted any other avenue to obtain funding. No error in the exercise of his Honour’s discretion has been shown.

21. [117]

    Ground 1 of the proposed grounds of appeal is therefore not established insofar as it is predicated on there being an error in the refusal of the adjournment. Mr Mehajer did not have a right to be provided with legal counsel at public expense and he was not deprived of a reasonable opportunity to obtain legal representation. As adverted to above, I consider below the complaint by Mr Mehajer that the refusal of the adjournment application led to a miscarriage of justice because of the unfairness of the trial, after addressing the substance of proposed Ground 3.

22. [118]

    The contention raised by proposed Ground 3 is that the trial judge erred in allowing the trial to continue “after the severity, extent and implications of [Mr Mehajer’s] psychopathology became apparent that he could no longer receive a fair trial in the absence of legal representation”.

23. [119]

    The “psychopathology” to which proposed Ground 3 refers, appears from Mr Mehajer’s submissions, to encompass both a diagnosis of a bipolar condition and his self-assessed (by reference to Google – see footnote 42 of his submissions) “voice confrontation condition”. That is consistent with his affidavit evidence, Mr Mehajer deposing in his affidavit sworn 17 November 2025 at [44] that his psychopathology accompanied by “voice confrontation” contributed to his denial of a fair trial without legal representation. In his submissions, Mr Mehajer suggests that his (then) custodial settings restricted him from obtaining an updated psychological report but his affidavit provides no explanation of this.

24. [120]

    It is not clear from the way in which proposed Ground 3 is formulated, whether what is contended to have become apparent to the trial judge was the severity, extent and implications of Mr Mehajer’s psychopathology (which would make more sense), or that (by reason of the “severity, extent and implications” of Mr Mehajer’s psychopathology) Mr Mehajer could no longer receive a fair trial in the absence of legal representation. The significance of this goes to the time at which it is contended that his Honour erred in allowing the trial to continue.

25. [121]

    Pressed at the hearing in this Court as to the stage at which he said this became apparent to the trial judge, Mr Mehajer effectively maintained that this was from the very start of the trial on 18 April 2023 when he attended in Court wearing prison attire and announced an intention to go on a hunger strike (AT 10) (see [54] above) although he then seemed to withdraw from that submission, informing the Court that he was not saying that it was just because he turned up in prison greens on that occasion – rather, that context was everything (AT 12). Mr Mehajer then said that the transcript made clear that he was under significant mental distress.

26. [122]

    Pausing here, I note that it is not tenable to suggest that the so-called “voice confrontation” condition was apparent simply by reason of Mr Mehajer’s attendance on the first substantive day of the trial in prison greens. There was no reference made on that occasion to any difficulty for Mr Mehajer listening to his own voice nor was there any occasion for the issue to have emerged at that stage. Leaving that timing issue aside, I address each of the conditions on which Mr Mehajer relies on this ground.

27. [123]

    The evidentiary material before the trial judge as to Mr Mehajer’s mental health included: extracts from his Justice Health file (affidavit of Isabella Viney sworn on 7 March 2023, part of VD Ex 3 before Huggett DCJ); two reports by a psychologist (Dr Ann-Marie De Santa Brigida, included in VD Ex 3; before Huggett DCJ); and two reports by a forensic psychiatrist (Dr John Albert Roberts, included in VD Ex 3; before Huggett DCJ, and VD Ex 6).

28. [124]

    During the hearing of his application for a temporary stay, Mr Mehajer was cross-examined about the Justice Health material (31/3/23; T 179). Mr Mehajer disagreed with the observations of Dr Henderson (8 September 2021) and Dr MacDonald (2 February 2022) to the effect that he did not have a mental illness (31/3/23; T 180) and gave evidence as to the various of matters referred to in the Justice Health notes.

29. [125]

    I do not propose here to summarise the contents of the Justice Health notes in evidence as to Mr Mehajer’s mental state (which are considered in detail in the respondent’s submissions), given that the respondent does not dispute that there has been a diagnosis of bipolar disorder. Having reviewed the Justice Health material carefully, I simply note that the notes support the conclusion that, as at the time of the temporary stay application, Mr Mehajer’s mental state was not of such severity as to prevent him being able to conduct his own defence (with appropriate assistance and accommodation by the trial judge).

30. [126]

    Mr Mehajer says he was first diagnosed “with Bipolarity” in or around 2018 (referring to such a diagnosis by four forensic psychiatrists – Dr Olav Nielsen, Dr Matthew Hannon, Dr John Albert Roberts and Dr Antony Henderson – and two psychologists (Dr Paul Pusey and Ann-Marie Santa Brigida)). The concession that there had been such a diagnosis was made by the Crown at trial (31/3/23; T 201), as Mr Mehajer points out; and the respondent does not here resile from that concession. Rather, the respondent’s submission is that the medical records did not reveal any significant symptomology at the time of the trial (the respondent pointing to Dr Roberts’ 10 April 2022 report and to the observations of the Justice Health professionals who interacted with Mr Mehajer from December 2020 to February 2023 and to the observations of the trial judge himself).

31. [127]

    The respondent thus submits that there is no basis to conclude that the diagnosed bipolar disorder had any adverse effect on Mr Mehajer’s ability to conduct his defence and to participate in the trial (and points out that the trial judge did not suggest that he observed any such difficulty). Mr Mehajer, however, complains that the trial judge erred by placing no or insufficient weight on Dr Roberts’ letter dated 8 November 2022 (Ex 6, Annexure A).

32. [128]

    It is therefore necessary to focus on Dr Roberts’ stated opinions and the context in which they were given.

33. [129]

    Dr Robert’s report dated 10 April 2022 was prepared for the purposes of a civil claim by Mr Mehajer relating to allegations by him of historical sexual assault unrelated to the personal violence offence proceedings. Dr Roberts spoke to Mr Mehajer once, on 14 March 2022, for the purposes of that assessment. Dr Roberts also made reference in that report to PTSD.

34. [130]

    Dr Roberts in that report concluded that Mr Mehajer’s mood disorder was “well controlled with current medication such that his mental status in terms of mood and affect is within normal limits” (p 11).

35. [131]

    Dr Roberts did not have any further consultation with Mr Mehajer after his April 2022 report. Rather, Dr Roberts’ 8 November 2022 letter responded to a request by Mr Mehjaer’s then lawyers for an opinion as to whether his “psychiatric condition” would render Mr Mehajar “incapable of representing himself in Criminal Procedures [sic: Proceedings]”. Dr Roberts’ opinion was that:

36. [132]

    Mr Mehajer complains that his Honour accepted in the stay judgment (at [173]) that “there is no evidence that the accused is presently impaired from the mental health issues identified in the reports”.

37. [133]

    In his 8 November 2022 letter, Dr Roberts did not explain his conclusion that Mr Mehajer would be incapable of representing himself in the criminal proceedings nor does he appear to have had regard to the Justice Health reports and observations after his March 2022 assessment. Further, as the respondent points out, there was no evidence as to what (if any) information was provided to Dr Roberts for the purposes of his report (including whether he was aware of the nature of the charges, the issues in the trial, or the trial judge’s increased obligations to ensure fairness of the trial).

38. [134]

    The respondent submits that the Justice Health records demonstrate that, at the time of trial, Mr Mehajer was not presenting with any significant psychological concerns. The respondent notes that, while Mr Mehajer had complained about issues such as back pain, low mood, a lack of sleep and a level of anxiety associated with his incarceration, his presentation was observed to be stable and within normal limits; and there was no indication of concerns that may have impacted his functioning, such as a significantly reduced concentration or impaired cognitive functioning. The respondent submits that, taking into account this evidence, the trial judge’s observations of Mr Mehajer, as well as the limitations in Dr Roberts’ report, it was well open to the trial judge to place little or no weight on that report.

39. [135]

    Further, the respondent submits that the record of the trial does not indicate that there were psychological concerns affecting Mr Mehajer’s ability to participate in the trial (the respondent referring to Mr Mehajer’s extensive cross-examinations of witnesses, in a number of instances eliciting significant concessions in support of his case; the making by Mr Mehajer of articulate and detailed submissions; and the articulate, focused and well organised nature of Mr Mehajer’s opening and closing addresses). The respondent says that Mr Mehajer demonstrated an understanding of the information provided to him by the trial judge. The respondent notes that the trial judge, who observed Mr Mehajer on a daily basis, did not raise any concerns about his capacity to participate in the trial (apart from practical challenges which his Honour addressed).

40. [136]

    Mr Mehajer contends that he suffers from a “voice confrontation” disorder (but says that he did not know at the trial that this was a mental health issue). In his submissions, Mr Mehajer explains that “The term “voice confrontation” (in a psychological sense) is defined as: a person not liking the sound of their own voice. It is a persistent abnormity fear of sound” (see Mr Mehajer’s submissions dated 25 March 2025 at fn 42, referring to a general Google search). In this context, Mr Mehajer refers to the transcript exchange at (26/4/23; T 342-343) in which he informed the trial judge of his anxiety when listening to his own voice on loud speaker.

41. [137]

    In his affidavit (at [44]-[49]), Mr Mehajer deposes that he was unable to listen to recordings relevant to his case, namely recorded gaol phone calls between himself and the complainant, because his “body would shut down” when he heard his own voice, “especially on loudspeaker” ([46]). He asserts that the recorded calls were significantly relevant to his case and may have been relevant to the complainant’s motive (affidavit at [48]-[49]).

42. [138]

    The respondent objects to Mr Mehajer’s affidavit evidence as to his self-diagnosis of “voice confrontation” (though the respondent accepts that the evidence can be received provisionally for the purpose of determining this ground of appeal).

43. [139]

    The respondent submits that the record of the trial indicates that, contrary to his submissions, Mr Mehajer was able to listen to the recorded gaol calls and that he made use of that evidence.

44. [140]

    To address this ground, it is necessary to consider the following chronology of events.

45. [141]

    Reference was made to recorded gaol calls during the pre-trial proceedings when Mr Mehajer confirmed that he had received a series of recordings of the calls between himself and the complainant, as well as a summary of those calls (30/3/23; T 157.20; VD Ex H). Mr Mehajer said that he had not listened to the calls because it was difficult to arrange a laptop or another device (T 157.40; T 163).

46. [142]

    At the trial, during the examination in chief of the complainant, the Crown played five voice mail recordings retrieved from the complainant’s phone, all of which contained Mr Mehajer’s voice. Three of the calls were made by Mr Mehajer from gaol after the complainant had ended the relationship (Ex K). The other two were made at an earlier time (Ex N). The respondent points out that Mr Mehajer gave no indication that he was unable to listen to his voice on those recordings.

47. [143]

    The Crown tendered a list of recorded gaol calls between the complainant and Mr Mehajer, which contained the two calls on which the Crown proposed to rely (Ex L; items 28, 29; 20/4/23; T 177). Those two calls later became Ex M. When the Crown proceeded to tender the calls, Mr Mehajer asked if he could step out while the calls were being played. Mr Mehajer said he did not like his voice being played (saying that “It’s a bit cringy and, like, it’s - yeah, I just don’t like hearing my voice, irrespective of the content”) (20/04/23; T 178.38). The trial judge did not accede to that request (T 178.42-179.4) and the calls were then played (T 179.33). The respondent says that this occurred with no indication that Mr Mehajer was either not listening or that he was experiencing anxiety. Transcripts of the calls were provided subsequently and became Ex O (T 261; T 269.12, T 277; T 289; T 291.19-292; T 294). (Mr Mehajer cavils with the proposition that transcripts of the calls were provided, complaining that there was only a one or two sentence summary of the various calls.)

48. [144]

    During the cross-examination of the complainant on 20 April 2023, the intermediary asked the complainant about another “gaol recorded phone line” (20/4/23; T 201.4). In the absence of the jury, other available calls were discussed during a break in the cross-examination. The respondent notes that the Crown indicated that a summary of gaol calls had been prepared (T 210.32) and that Mr Mehajer confirmed that he would be able to identify a conversation relevant to his case (T 211.9-19). The trial judge suggested that Mr Mehajer might also utilise a summary to formulate questions for the complainant (T 211.22) and explained how questions could be framed (T 212.13-48).

49. [145]

    The respondent notes that the recorded calls were discussed again on 21 April 2023 with a view to identifying whether Mr Mehajer wanted any of the calls that were not in evidence played to the jury (21/4/23; T 223-224). On that occasion Mr Mehajer informed the trial judge that he had not listened to the remainder of the calls because he did not have a device to do so (T 224.44). The trial judge indicated that arrangements could be made for Mr Mehajer to listen to the calls in the courtroom using earbuds (T 224.47). Mr Mehajer suggested that he may listen to the calls in his own time (T 225.7). The table of calls was marked MFI 27.

50. [146]

    During further cross-examination of the complainant, the intermediary indicated that she would return to the topic of calls “to give Mr Mehajer the opportunity to review phone calls” (21/4/23; T 240.22). The Crown provided a more detailed summary of gaol calls of potential relevance (T 246.48-247.22; MFI 28). The intermediary again asked the complainant about the two calls in Ex M (T 248.27).

51. [147]

    On 24 April 2023, Mr Mehajer wrote to the Crown raising a number of practical challenges and asked for assistance to listen to six telephone recordings between himself and the complainant (MFI 32, p 8). There was a discussion of arrangements for Mr Mehajer to listen to the calls (24/4/23; T 272.13-273.4). Shortly after this, the trial judge made available a laptop for Mr Mehajer’s use in court (T 289.37).

52. [148]

    On 26 April 2023, the Crown served a recorded phone call between the complainant and Mr Mehajer, which included a discussion of the incident in Count 1 (T 337-338). The Crown indicated that it would not rely on that call because of its late disclosure (T 338-339). Mr Mehajer asked for an opportunity to listen to the call and to four calls that he had identified from the materials previously served (T 339.30; T 340-342). Mr Mehajer asked to listen to the calls on the laptop that had been provided to him, stating “my preference…I’d like to listen to it on the laptop. I don’t like listening to my own voice out loud on speaker” (T 342.48). The trial judge and the prosecution team left the courtroom so Mr Mehajer could listen to the calls (T 343.24; T 346.15). The calls were marked MFI 41 (see 27/4/23; T 401).

53. [149]

    The respondent points out that Mr Mehajer did not tender any calls in his case. In his address to the jury (8/5/23; T 963-964) he made submissions in relation to the content of the two recorded calls in Ex M, which, on his case, demonstrated that the complainant had decided to leave him and make up false allegations against him only once she came to suspect him of infidelity. Mr Mehajer also made submissions in relation to the content of the calls (at T 968-969).

54. [150]

    The respondent submits that the above demonstrates that there is no foundation in Mr Mehajer’s submission that his “voice confrontation” condition (or his reluctance to listen to his voice on loudspeakers) caused unfairness to him at the trial. The respondent says that it demonstrates that Mr Mehajer was able to access and use the calls he considered relevant to his case and submits that, whether this matter is considered alone or in combination with the bipolar disorder, Mr Mehajer has not demonstrated that his trial was unfair.

55. [151]

    The contention that there was error in allowing the trial to continue at some unidentified point in time because the severity, extent and implications of Mr Mehajer’s psychopathology made it apparent that Mr Mehajer could no longer receive a fair trial in the absence of legal representation is not established.

56. [152]

    First, as to the diagnosed bipolar condition, the medical evidence (including the Justice Health notes) before the trial judge in the temporary stay application did not support a conclusion that Mr Mehajer’s reported bipolar disorder precluded him from conducting his own trial or caused the trial to be unfair. The only statement to that effect was the conclusory statement by Dr Roberts that was unsupported by any reasoning and not able to be tested by reference to any material on which it was based. Nor was there a point during the trial at which, on a review of the transcript, it can be concluded that the bipolar condition was so severe as to warrant an adjournment of the trial.

57. [153]

    As to the voice confrontation condition, nothing in the transcript supports a conclusion that Mr Mehajer’s dislike of listening to his own voice on speaker in the court room was such a debilitating condition as to preclude his ability to conduct his defence. Mr Mehajer’s complaints at trial related to his inability to listen to the recorded calls without a computer device, which the trial judge accommodated by arranging for provision of a laptop to enable Mr Mehajer to do so, and his desire not to listen to his own voice on loudspeaker.

58. [154]

    As for the complaint about incomplete transcripts of other calls, Mr Mehajer does not appear to have requested more complete transcripts and he does not point to anything that would have been relied upon in his case had he been given complete transcripts – rather, his complaint is that, he having chosen not to listen to the other recorded calls (despite the provision of access to a laptop to enable him to do so), there might have been something there that legal representatives would have relied upon at trial if he had the benefit of legal representation. That is simply speculation. The premise of Ground 3 is not established.

59. [155]

    Turning back to the submissions made by Mr Mehajer as to the alleged unfairness of the trial, he raised a number of complaints which I will deal with sequentially but, as a general proposition, Mr Mehajer’s complaint was that the trial judge assessed his ability to conduct his own defence by reference to him being articulate. Mr Mehajer complains that fairness is not measured by physical presence in the court room or the ability simply to answer questions (AT 7). Mr Mehajer maintains that fairness requires the ability to defend oneself and make forensic decisions, to test the Crown case, to understand evidence and to avoid any kind of prejudice. In oral submissions, addressing the suggestion that an intermediary was there to assist him, Mr Mehajer insisted that an intermediary does not substitute for a legal representative, saying that an intermediary cannot prevent “self-incriminations, strategic errors or explosive behaviours [such as him turning up in prison greens] … triggered by mental health episodes” (see AT 13). More than once, Mr Mehajer asserted that one can speak fluently and yet be totally incapable of performing the functions he had identified.

60. [156]

    Addressing that general proposition, it should be noted that the trial judge had an opportunity to do more than assess Mr Mehajer’s ability to answer questions (he had, for example, been able to assess Mr Mehajer’s ability to present submissions and argue his case on the temporary stay application). Moreover, the record of the trial shows that Mr Mehajer did indeed demonstrate the capacity to make forensic decisions (with assistance from the trial judge where appropriate), such as when he decided not to pursue the course of calling his ex-wife as a character witness after receiving advice as to that course from the trial judge. There is nothing to which Mr Mehajer points to indicate an inability on his part to test the Crown case or to understand it. As to the complaint about not being in a position not to make strategic errors, the transcript reveals that the trial judge gave Mr Mehajer assistance at various points where strategic decisions were to be made by him (see 2/5/23; T 676-678). As to the complaint about self-incrimination, there is no suggestion that Mr Mehajer did or said anything to incriminate himself. He did not give evidence in the trial, as was his right.

61. [157]

    As to Mr Mehajer’s submission that, in determining the practical content of the requirement that a criminal trial be fair, regard must be had to not only the interest of the Crown acting on behalf of the community but also the interest of the accused (Mr Mehajer pointing out that the complainant also gave evidence that she preferred the accused to be represented – see 24/4/23; T 285), my review of the transcript of the trial and the assistance provided to Mr Mehajer (set out in detail in the respondent’s submissions) makes clear that the trial judge was acutely conscious of protecting the interests of the accused and took all proper steps to do so. The complainant’s preference that Mr Mehajer be legally represented is irrelevant. No doubt that would have been preferable for a number of reasons. However, the trial judge was required to, and did, balance the various interests involved in the question whether to stay the proceedings, as I have addressed above.

62. [158]

    I turn now to the specific complaints as to unfairness.

63. [159]

    Mr Mehajer complains that his Honour did not accede to his request for a day off during the trial (after the Crown’s examination of the complainant), so that he could formulate questions to provide to the intermediary questioner, on which occasion he referred to the difficulty that he had no resources (20/4/23; T 213).

64. [160]

    To understand this complaint, it is necessary to consider the chronology of events relating to the cross-examination of the complainant.

65. [161]

    After the Crown’s opening address, the trial judge gave Mr Mehajer an opportunity to prepare his opening address overnight. Mr Mehajer delivered his opening address on Wednesday, 19 April 2023 (19/4/23; T 96). The complainant’s evidence in chief commenced on the same day (19/4/23; T 110) and continued on Thursday, 20 July 2023. It concluded after the luncheon adjournment. At that point, the trial judge asked if Mr Mehajer and the intermediary were ready to commence cross-examination (19/4/23; T 192). A short adjournment was granted, following which Mr Mehajer confirmed he was ready to start (19/4/23; T 193).

66. [162]

    The complainant was then cross examined for a relatively short period (20/4/23; T 195-207) before proceedings were adjourned until the following day (T 207.41). His Honour then provided information to Mr Mehajer in relation to the framing of questions (T 208-213). His Honour also indicated that cross-examination could occur in 40 minute time slots, thus the respondent notes, allowing regular adjournments and opportunities for Mr Mehajer to prepare (T 209.14).

67. [163]

    It was following those exchanges on the Thursday that Mr Mehajer sought an adjournment until Monday, 24 April 2023. His Honour refused the application, citing, inter alia, the comfort and convenience of the jury (20/4/23; T 213.25). The respondent emphasises that his Honour said (T 213.29) “[w]e’ll keep going tomorrow as far as we can. I’ll break whenever you need to have a break so you can gather all your thoughts and formulate your questions so you can make sure you touch all matters upon you want this witness to answer”. The respondent points out that his Honour then assisted Mr Mehajer in identifying the issues that may be relevant to his cross-examination (T 214).

68. [164]

    On Friday, 21 April 2023, the cross-examination resumed. After a number of questions were put to the complainant (21/4/23; T 228-234), the intermediary asked if a short break could be taken. The trial judge allowed an adjournment for 25 minutes. It is noted that his Honour asked if that would be enough, and Mr Mehajer replied “Perfect. Yes, thank you” (T 235.11). When the cross-examination resumed, there were further breaks where his Honour ruled on the relevance of certain questions. The trial judge indicated to Mr Mehajer areas of cross-examination that may be relevant (T 242-245).

69. [165]

    At approximately 1pm, the intermediary sought an adjournment. The matter was then adjourned for the luncheon adjournment (21/4/23; T 255). The trial judge told Mr Mehajer that he would allow further time at 2pm if he needed to speak with the intermediary before the questioning resumed. His Honour said “then you can continue as far as you can this afternoon after that and then we’ll adjourn” (T 256.11). After the luncheon adjournment the trial judge reiterated that Mr Mehajer could resume his cross-examination “as far as you can go today and then we’ll resume on Monday” (T 260.33). The cross-examination then resumed. After questions occupying three pages of transcript (T 261-263), the intermediary indicated that she had exhausted the available questions. The complainant’s evidence was then adjourned to Monday, 24 April 2023 (T 264).

70. [166]

    When the proceedings resumed on Monday, 24 April 2023 there was discussion of a letter from Mr Mehajer raising various practical challenges (24/4/23; T 270; MFI 32). The trial judge again told Mr Mehajer that he would give him time whenever he needed to work on the questions to be put to the complainant (T 272). Following further exchanges about evidence, Mr Mehajer stated “thank you for your patience, your Honour. Okay, we’re ready now” (T 274.38). The cross- examination (with breaks) continued until Mr Mehajer indicated that he had exhausted his questions (T 331). The complainant’s evidence was again adjourned, to Wednesday, 26 April 2023. The cross-examination was concluded on that day.

71. [167]

    In light of the above, the respondent submits that the trial judge provided significant assistance to Mr Mehajer and accommodated his need for time as the cross-examination unfolded. The respondent submits that the trial judge’s interventions and discussions with Mr Mehajer, as well as the frequent breaks and adjournments, enabled Mr Mehajer to formulate questions, to confer with the intermediary and for the cross-examination to take place at a pace that was suitable to Mr Mehajer. The respondent says that Mr Mehajer’s own comments demonstrate that he was content with the trial judge’s approach in terms of sitting times and adjournments, and that he took advantage of the trial judge’s assistance.

72. [168]

    In my opinion, there was no unfairness to Mr Mehajer in his Honour’s refusal of a one day adjournment during the course of the complainant’s cross-examination. The record of the trial shows that the trial judge made allowances for Mr Mehajer in permitting short adjournments when requested and gave assistance as to identification of issues for cross-examination and procedural matters.

73. [169]

    Mr Mehajer contends that in practice this trial “broke down”. It is submitted that his Honour erred in failing to grasp the true complexity of the matter, which Mr Mehajer says became more apparent as the trial went on. Mr Mehajer argues that the proper conduct of such a defence had clearly called for knowledge not only of the criminal law but also of the rules of procedure and evidence.

74. [170]

    A review of the record of the trial reveals that the trial judge was careful to provide Mr Mehajer with information about the practice and procedure of the court and to provide advice as to practical matters. In my opinion, no criticism can fairly be made of the trial judge in this regard. His Honour complied in exemplary fashion with the well recognised duties of a trial judge in conducting a trial with an unrepresented accused (see R v Zorad (1990) 19 NSWLR 91 (Zorad), at 99 per Hunt, Enderby and Sharpe JJ). His Honour was careful to ensure that Mr Mehajer was able to make effective choices as to the exercise of his rights during the course of the trial (for example, as to the proposal to call his ex-wife as a character witness). It is not of course the duty of a trial judge in such a position to tell the accused how to exercise his or her rights (R v Anastasiou (1991) 21 NSWLR 394, at 399 per Hunt J, Campbell and Newman JJ agreeing).

75. [171]

    In particular, as the respondent summarises in no little detail in its submissions, the trial judge: took steps throughout the trial to ensure that Mr Mehajer was aware of his rights and of the court’s processes and procedures and ensured that Mr Mehajer was provided adequate resources and assistance, and that he was accommodated with breaks and time for preparation, so as to enable him to exercise his rights effectively. It is apparent that the trial judge gave assistance to ensure that Mr Mehajer was not only able to understand his rights and the relevant procedures, but that he was able to conduct his case effectively.

76. [172]

    As to the procedural assistance provided to Mr Mehajer, the respondent notes that, prior to the jury empanelment on 12 April 2023, the trial judge provided information to Mr Mehajer in relation to a number of matters, including the charges on the indictment, the empanelment procedure and the availability of challenges (12/4/23; T 10; T 12), the Crown’s onus to prove the charges (T 10), the opportunity Mr Mehajer would have to cross-examine Crown witnesses (T 11), the procedure when cross-examining the complainant (T 12), the possibility of applying for a verdict by direction (T 12) and the opportunity for Mr Mehajer to call evidence in his own case (T 12); and the need for notice where there is reliance on a defence of alibi (T 12). The trial judge provided Mr Mehajer with a document which contained a summary of the trial procedure (MFI 12). The respondent also refers to the explanations given on 3 April 2023 (at T 221). Procedural advice on some of those topics was also provided by Huggett DCJ in the pre-trial management of the matter (as noted earlier).

77. [173]

    The respondent points out that throughout the trial proceedings the trial judge: informed Mr Mehajer about the increased duties of the judge and the Crown to act fairly due to his status as an unrepresented accused (3/4/23;T 220); provided information in relation to the scope of Mr Mehajer’s opening address and gave him an opportunity to consider the Crown’s opening overnight (15/4/23; T 76; 87); discussed with Mr Mehajer the central issues in the case and the need to present submissions and arguments relevant to those issues (18/4/23; T 52.35); provided information in relation to cross-examination of the complainant on issues of credibility (20/4/23; T 193; T 212.36), (24/4/23; T 302.38-304.50), (T 325.6-327.4), (26/4/23; T 364.15-37; T 365.35-366; T 383.6-385); intervened from time to time during the cross examination of the complainant to assist Mr Mehajer, including by clarifying or reframing questions (20/4/23; T 200.8); T 204.35; T 207.10; 21/4/23; T 249.40; 24/4/23; T 280.11; T 282.5; T 296.31; T 311.35; T 315-316; 26/4/23; T 377.29; T 380.24); provided indications to Mr Mehajer as to topics and lines of cross-examination which may elicit unhelpful evidence for his case (20/4/23; T 208.27; T 209.46; T 213.17; T 244.14); provided assistance to Mr Mehajer with respect to other forensic decisions, such as the implications of making an admission of assault in relation to Count 5 (the throwing of an item at the complainant) (26/4/23; T 345.24-346.7); explained the rules relating to evidence of character evidence and the potentially adverse implications of raising good character (T 102) (including discussion as to his proposal to call his ex-wife to give evidence, and the potential risks in eliciting good character evidence from her) (19/4/23; T 145-148); informed Mr Mehajer that evidence of his past periods in custody would not be led by the Crown (following which Mr Mehajer indicated that there was no way to avoid that information because it formed part of his case) (T 107, see also Ex P); informed Mr Mehajer about his right to make a no-case submission at the close of the Crown case (04/5/23; T 850); facilitated communications with the Crown to ensure Mr Mehajer was able to obtain various materials relevant to his case (see MFI 44) and (MFI 45); provided documents sought by Mr Mehajer to assist his closing address (including addresses in other trials before the Court (03/5/23; T 752.6-27; T 785; T 788- 789); provided information as to matters that can be addressed in his closing address (04/5/23; T 859), including a document explaining the onus and standard of proof, evidence of good character, essential elements of the charges and the evidence relevant to the more serious charges on the indictment (Counts 4-7) (05/5/23; T 862; MFI 70); scheduled the Crown’s address to enable Mr Mehajer to prepare his address over a weekend (T 859.30); provided a hard copy of the trial transcript to Mr Mehajer throughout the trial; arranged for a computer to be provided for Mr Mehajer’s use in court (24/4/23; T 289); offered Mr Mehajer the assistance of the trial judge’s associate to conduct word searches within the transcript (20/4/23; T 158; T 193; T 270); and assisted Mr Mehajer with online searches for photographs that may be relevant to his case or complainant’s credibility (24/4/23; T 274).

78. [174]

    The respondent also points out that, prior to its opening address, the Crown provided a document (18/4/23; T 48-49) which contained an overview of: the evidence to be led in relation to issues of relationship/context; evidence the Crown proposed to lead to rebut Mr Mehajer’s assertion that the complainant was motivated to make (false) complaints against him; and evidence to be led from the complainant relating to the charges on the indictment (MFI 13). That document included a list of other witnesses the Crown intended to call, with a summary of evidence sought to be elicited from those witnesses (MFI 13, pp 8-9) and a list of matters the Crown would submit were relevant to the complainant’s credibility (p 9).

79. [175]

    The respondent says that, in his opening address Mr Mehajer was articulate and spoke in an organised and logical manner; noting that Mr Mehajer addressed the challenges he may face as an unrepresented accused (T 96); asked the jury not to draw an adverse inference from the fact that he was not on bail (T 97); and acknowledged that the Court had been assisting him and that the Crown had “also been reasonable in that regard” (T 100).

80. [176]

    The respondent also refers to Mr Mehajer’s closing address, which the respondent says similarly demonstrated Mr Mehajer’s ability to articulate his case in a clear, logical and organised manner. The respondent notes that in that address, Mr Mehajer returned to the themes he had foreshadowed in his opening; addressed the jury by reference to the trial transcript and exhibits and used a written document he had prepared (T 962.28); reminded the jury of the presumption of innocence (Ex P; T 963.22) and made submissions about the complainant’s possible motives to lie (her suspicion of his infidelity and a fraud charge she had been facing) (T 963.40-964.32; T 965.46).

81. [177]

    The respondent also points to the cross-examination by Mr Mehajer of the complainant (through the intermediary) and of other witnesses as demonstrating his ability to conduct his case (as to which, I say more in due course).

82. [178]

    Contrary to Mr Mehajer’s insistence on the complexity of his case, this was in substance a simple case of allegations of common assault which Mr Mehajer denied. There was ample assistance provided to Mr Mehajer by the trial judge and (consistent with its obligations as a model litigant) the Crown. To the extent that complexity arose in relation to the challenges made by Mr Mehajer to the authenticity of the screen shots (the text messages and images) relied upon by the Crown, Mr Mehajer was clearly capable of addressing those matters (including in cross-examination of the expert witness – see below). There is no substance to Mr Mehajer’s complaint that the trial “broke down” in practice or that he suffered unfairness due to a lack of knowledge of court processes and procedures.

83. [179]

    Next, Mr Mehajer complains that the trial judge’s remarks in refusing the adjournment (the stay judgment) caused him to be under a mistaken belief as to what was required during the course of the trial. In particular, he says that the trial judge “determined” that the Crown should not address the jury with a closing address, referring to his Honour’s remarks (in the stay judgment) that:

84. [180]

    Mr Mehajer complains that, despite this, the trial judge ultimately directed the Crown to address the jury at the end of the evidence and he says that this caused unfairness to him (referring to the exchange at 4/5/32; T 857).

85. [181]

    The respondent points out that, at [54] of the stay judgment, his Honour agreed with the Crown’s observations, prior to the commencement of the trial, that “this is a case where it might not be appropriate for the Crown Prosecutor to address the jury” and referred to his exchanges with Mr Mehajer (at [153]-[154]) where his Honour said that “it might not be appropriate for [the Crown] to be addressing the jury attempting to persuade them of an outcome in the trial, bearing in mind you are unrepresented”.

86. [182]

    The respondent says that it is clear that his Honour was not there determining the matter but expressing a preliminary view prior to the start of trial; and that the fact that his Honour subsequently permitted the Crown to make a limited address (in order to identify for the jury the evidence relevant to the charges) was not to be in error.

87. [183]

    It is clear that the decision whether the Crown in these circumstances should be permitted to make a closing address has been recognised as a discretionary one, to be made having regard to fairness to all involved in the proceedings (see Zorad at 95; and R v EJ Smith [1982] 2 NSWLR 608, where Street CJ considered that the practice whereby the Crown does not address the jury where there is an unrepresented accused “is not a rule of practice, still less is it a rule of law” (at 616, Nagle CJ at CL and Maxwell J agreeing)).

88. [184]

    The respondent points to TS v R [2022] NSWCCA 222 (TS), where Basten AJA (Fullerton and Garling JJ agreeing) said (at [102]):

89. [185]

    The respondent notes that, in the present case, the trial judge gave an indication during the evidence of the complainant (on 24 April 2023) that he was inclined to permit the Crown to deliver a limited closing address. His Honour referred to his observations of Mr Mehajer in his opening address and in relation to his “capacity for marshalling thoughts and assembling questions”. His Honour indicated that, if the Crown were to be permitted to address the jury, the Crown would not go into detailed submissions upon why the jury would return verdicts of guilty (24/4/23; T 334.21). His Honour explained that part of the rationale for his view was that, if the Crown did not address, the trial judge would have to sum up the Crown case “which might look as though I’m stepping into the arena” (T 336.2) (consistent with what was said at TS at [100] as to the likely consequence of the judge undertaking the summing up of the Crown as being “to give to the prosecution case the authority of the independent judicial officer, who otherwise stands above the fray”).

90. [186]

    The trial judge explained that he was of the view, at that stage, that the Crown should be permitted to address the jury by identifying the relevant evidence and the circumstances it relied on (24/4/23; T 335.37). Mr Mehajer enquired whether the Crown’s position had changed (having regard to submissions during the hearing of the application for a stay), thus exhibiting an understanding of what had previously been intimated. His Honour explained that this was a matter of discretion for the Court and said that it might be appropriate to allow the Crown a limited closing “so that there is a truly balanced approach in the trial, and at the same time, protect the imbalance that’s brought about by you not being a trained advocate”. The respondent points out that Mr Mehajer did not argue against this approach.

91. [187]

    There were subsequent discussions about the scheduling of the addresses (1/5/23; T 626.25; T 857). On 4 May 2023, his Honour said that it was appropriate for the Crown to address, in light of the various facets of the evidence, but that the Crown was not to run an argument that would be expected in a case with a represented accused (T 857.35). His Honour determined that the Crown could address by identifying the relevant evidence but that it was not to make a submission as to why the jury should be satisfied of Mr Mehajer’s guilt (T 858). His Honour required the Crown to deliver its address on Friday, 5 July 2023, so as to enable Mr Mehajer to prepare his address over the weekend (T 859.30).

92. [188]

    The respondent (having referred in some detail to the structure and content of Mr Mehajer’s opening and closing submissions to the jury, and his cross-examination of the expert witnesses), submits that Mr Mehajer demonstrated an ability to present his case effectively and in those circumstances, given the amount of evidence the jury received, the respondent says that it was entirely appropriate for his Honour to direct that the Crown address the jury within the constraints identified. The respondent notes that in R v Macdonald; R v Maitland (No 9) [2022] NSWSC 1449, a judge alone trial involving an unrepresented accused, Dhanji J permitted the Crown to deliver a closing address having taken into account that the accused appeared to have conducted the case to that stage with a significant level of competence, including in cross-examining Crown witnesses, despite his lack of representation and legal training (at [6]).

93. [189]

    The respondent notes that Mr Mehajer does not point to any unfairness or prejudice to him from the fact that the Crown was permitted to address the jury, or from the content of the Crown’s address. The respondent notes that the Crown’s address was limited to basic legal concepts and identified the evidence and circumstances relevant to each count; it did not involve submissions seeking to persuade the jury as to Mr Mehajer’s guilt.

94. [190]

    It is noted that the Crown also acknowledged the important limitations of relationship evidence, stating that “you cannot reason because he may have behaved in a particular way during some other part of the relationship that that directly strengthens any of the counts against him. It’s solely put before you to put the relationship in perspective, so you’re better enabled to analyse why the complainant acted or says she acted and reacted in the way that she does” (5/5/23; T 935.43); and that the Crown acknowledged the issues raised by Mr Mehajer, including possible motives on the part of the complainant to lie (T 936.2) and the complainant’s hospital admission for a mental health concern (T 936.17). The respondent notes that the Crown concluded its address by reminding the jury not to allow emotion or sympathy to interfere with its task, which was to determine whether the Crown proved its case beyond reasonable doubt on any charge (5/5/24; T 936.28).

95. [191]

    In my opinion, there was no unfairness caused to Mr Mehajer in the fact that the Crown was permitted to make a closing address confined in the way that his Honour had indicated. I accept the respondent’s submission that there was not a “determination”, as such, on that issue at the earlier stage when his Honour was considering the manner in which the trial would proceed prior to its commencement. Nor has Mr Mehajer pointed to any prejudice or unfairness when his Honour finally determined to allow the Crown address (and I note that Mr Mehajer was given fair indication in advance of this being the likely position). There was no error in the exercise of discretion by his Honour as a matter of practice and procedure. Moreover, his Honour appropriately limited the scope of that address and there is (and was) no complaint that the Crown exceeded that limit.

96. [192]

    Finally, by way of specific complaint, Mr Mehajer contends that his Honour erred in concluding that he would not face alone the task of formulating questions and putting them to the witness (referring to his Honour’s statement at 3/4/23; T 221.35), noting that there would be an intermediary cross-examining.

97. [193]

    Mr Mehajer says that he was under the mistaken belief that he was not required to formulate the questions to be put to the complainant (saying that his Honour noted that he must at least identify the topics for cross-examination and identify the facts that he would wish to elicit in cross-examination (3/4/32; T 221)), referring to the stay judgment at [51].

98. [194]

    I do not accept that Mr Mehajer can have been under the misapprehension that he would not be required to formulate the questions to be put to the complainant. Huggett DCJ told him at the outset that he would have to propose questions for the intermediary (see chronology above) and the trial judge himself referred during the temporary stay application to Mr Mehajer having to formulate questions (see [48] above); (20/3/23, T 5.28).

99. [195]

    The respondent refers to the exchange with the trial judge on 3 April 2023 (more than two weeks before the complainant’s evidence started), in which the respondent says Mr Mehajer indicated his understanding that he would be required to “provide the questions for the cross-examiner to cross-examine, ultimately then, my questions then, it’s subject to the response of the complainant. The questions, I would have to sit back and write the questions and pass them back to the person giving the questions.” (3/4/23, T 221.38); and to the provision by the trial judge on 18 April 2023, after the s 5F decision, of a printout of Chapter 6 (Evidentiary Matters) of the Criminal Procedure Act 1986 (NSW), with an identification of the provisions relevant to the cross examination of the complainant using a court-appointed intermediary (Part 4, Division 5). It is noted that, on that occasion, his Honour explained the role of the intermediary and informed Mr Mehajer that he would need to formulate questions in advance (18/4/23; T 89). His Honour indicated to Mr Mehajer that he would have opportunities to “review and regroup” after examination in chief and during cross-examination (19/4/23; T 90) and told him that this would be taken “one step at a time, Mr Mehajer, so that you’re not overwhelmed” (T 95). The intermediary, Ms Emma Crickett, then attended and was introduced to Mr Mehajer (T 105).

100. [196]

     The respondent says that at no stage during the proceedings (including prior to and during the cross-examination of the complainant) did Mr Mehajer indicate that he had operated under any mistaken belief as to the role of the intermediary and his responsibility to formulate the questions to be asked of the complainant.

101. [197]

     As to Mr Mehajer’s assertion that he experienced difficulties in formulating questions and “creating momentum in the cross-examination (given the nature of the process)” the respondent submits that this should also be rejected, arguing that Mr Mehajer demonstrated considerable competence in cross-examining witnesses and advancing his case in a logical and focused manner.

102. [198]

     I do not propose to summarise in any detail the respondent’s submissions as to the structure and organisation of Mr Mehajer’s cross-examination (through the intermediary) of the complainant, simply to note that the topics covered in the cross-examination included: the complainant’s prior inconsistent statements (T 196.40; T 199.35; T 375.16); the complainant’s past letters and statements expressing affection and love for Mr Mehajer (T 200.25; T 230); delayed complaint (T 203.17); the fact that the complainant had previously authored a character reference for Mr Mehajer (T 361.22); the complainant’s alleged motives to lie (T 232.42; T 248.27; T 254; T 262.30; T 281-283); the whereabouts of Mr Mehajer s phones, which on his case contained information relevant to his case (T 239.24; T 279-281; T 387.11); Mr Mehajer’s requests for the complainant to return his property (T 284.29); the incidents alleged in the indictment (T 317.43-320; T 352.42-359; T 368-372; T 374-376); the complainant’s mental health (T 321.47-322; T 325; T 328); and the authenticity of the screenshots and the messages which the complainant provided to the police (T 841; T 843; T 845-7).

103. [199]

     In particular, Mr Mehajer through the intermediary cross-examined the complainant about her knowledge of ways in which mobile phone messages and screenshots can be falsified (T 379; T 381) – as noted, the complainant denied that she created false screenshots (T 379). In further cross-examination, the complainant was asked about the timing of the photograph of the bruise on her arm (T 831) and the incident in count 5 (T 835-836).

104. [200]

     Insofar as the complaint as to difficulties in cross-examination or creating momentum in the cross-examination relates to cross-examination of witnesses other than the complainant, the respondent says that Mr Mehajer’s cross-examinations of other witnesses demonstrated his ability to conduct his case.

105. [201]

     The respondent points out that, at trial, Mr Mehajer put in issue the provenance and authenticity of the images which the complainant had provided to police, and which depicted messages between him and the complainant, and in so doing Mr Mehajer raised a number of technical matters and was able to demonstrate potential limitations in the evidence.

106. [202]

     In this regard, the respondent refers to the cross-examination of Constable Daniel Whittle (the Officer in Charge) (28/4/23; T 581-585; 632-639), following which the Crown briefed DTS Catto-Pitkin of the NSW Police Digital Forensics Unit, who gave evidence and was cross-examined both on the voir dire (T 713-723; T 745-751; T 778-780; T 783-784; T 804-805) and before the jury (T 760-776; T 807-823).

107. [203]

     It is noted that Mr Mehajer elicited the following in cross-examination of DTS Catto-Pitkin: that it was possible to alter the names and dates of files in an Apple phone (T 765); that it was possible falsely to create messages that appear to have been sent at an earlier time by changing the date and time settings on the sending phone (T 769); that it was also possible to create fabricated messages by changing or creating contact names (T 809-810; T 814; that, without access to the underlying messages, it would not be possible to verify the phone numbers involved in each message exchange shown in a screenshot (T 772-773), or the dates on which the messages were sent or received (T 808; T 819); and that, to the extent that some of the screenshots produced by the complainant (as shown in Ex X) were created on 1 January 2021, it was possible that the messages depicted in them could have been created on that date, as opposed to an earlier time relevant to the charges (T 823).

108. [204]

     The respondent points out that Mr Mehajer pursued related issues with other witnesses, for example by cross-examining a number of police officers about the possibility of using the Cellebrite software to access raw data on digital devices, and the fact that this had not been achieved in the present case (T 437-438; T 464; T 543-545; T 560; T 579-580; T 642-645) and that he also cross-examined the Officer in Charge about the fact that he had not obtained call charge data which could be used to verify the dates and times on which text messages were sent or received (T 651-652).

109. [205]

     The complaint that there was unfairness occasioned by a mistaken belief that Mr Mehajer would not have to formulate the questions to the complainant cannot be sustained. It was made clear to Mr Mehajer very early on in the proceedings that he would be required to do so.

110. [206]

     As to the complaint as to difficulties in cross-examination and the asserted loss of momentum in the course of cross-examination, the only particular prejudice to which Mr Mehajer points in relation to the involvement of the intermediary, is his complaint that, after an objection to a particular question, the intermediary ‘lost momentum’ and did not pursue the topic (and did not liaise with him) (and that the trial judge did not rule on the objection) (see [219] below). The question to which objection was raised (to which Mr Mehajer complains the intermediary did not return) was not easy to understand. No unfairness has been shown to have been occasioned by the fact that the intermediary did not press that question after objection thereto (nor was there any unfairness arising because his Honour did not expressly rule on the objection – it is by no means uncommon for cross-examiners not to press questions after objection is taken to them without there being any ruling thereon). As for the complaint that Mr Mehajer had no opportunity to liaise with the intermediary about that question, it does not appear from the transcript that he sought any such opportunity.

111. [207]

     It is clear from the transcript that there was extensive cross-examination of the complainant about the issue of the screen shots (the text messages and photograph). As noted earlier, the complainant was adamant that she had not falsified or manipulated the messages, which denial must logically have included the images contained within them. The fact that only one question was addressed to the complainant as to Ex X in cross-examination does not lead to the conclusion that the trial was unfair to Mr Mehajer (and I note in this context the discussion earlier in relation to the trial judge’s refusal to adjourn the trial to allow the issue of whether the photographs relied upon had been photoshopped).

112. [208]

     I also note that the trial judge himself referred to Mr Mehajer’s effective cross-examination of DTS Catto-Pitkin (at T 796.25), which reinforces my conclusion from the transcript that the complaint as to difficulties in cross-examination has no substance:

113. [209]

     By way of general submission, Mr Mehajer argues that the majority of domestic violence trials are unique because, without counsel, it is difficult to detach emotions and effectively prepare a defence. Mr Mehajer says that he evidently struggled throughout the trial; that he could not dispassionately assess and present his case as counsel would; and that he suffered a significant disadvantage throughout in cross-examining the complainant (including difficulties in formulating questions, creating momentum in the cross-examination (given the nature of the process)) and says that there was apparent frustration on the part of the jury as a result of the delays.

114. [210]

     All trials are of course unique in the sense that they all turn on their own facts. It is mere assertion to suggest that domestic violence trials involve more emotion than other trials. Mr Mehajer had considerable assistance during the trial and has not established that he had difficulties in formulating questions or creating momentum such as to amount to an unfair trial. For completeness, I add that it is impossible to comment on the proposition that the jury displayed frustration as a result of delays during the trial.

115. [211]

     As the respondent points out, the approach that a court should adopt in determining whether the unrepresented litigant was able to run his case requires an assessment by reference to the fairness of the process (Amagwula v R [2019] NSWCCA 156, per Basten JA at [45] (Lonergan J agreeing) (referring to MacPherson v The Queen (1981) 147 CLR 512 at 523, 534, 543-544 and 537)).

116. [212]

     In my opinion, Mr Mehajer has failed to demonstrate unfairness in the trial as it proceeded. Mr Mehajer was able, with assistance from the trial judge, to identify issues relevant to the case, he (through the intermediary in relation to the complainant) was able to cross-examine the Crown witnesses. As the respondent notes, he was able to raise the issue of authenticity of the screen shots and he obtained concessions from the expert in that regard (and succeeded in his first application to recall the complainant). His opening and closing addresses were logical and appropriately ordered (whether he copied and pasted portions of them from other proceedings, as he told this Court, is not to the point – he was clearly able to assimilate what was required in that regard and to adapt it to the present case).

117. [213]

     While, as the respondent notes, by the time of trial, Mr Mehajer had been involved in a number of criminal proceedings and bail applications, as well as civil matters, and hence must have had a degree of familiarity with court processes and procedures, I do not rely on this for the conclusion that there was no unfairness in the process or conduct of the trial. Rather, I place weight on the considerable assistance that Mr Mehajer was given prior to and in the course of the proceedings as to process and procedure, as well as evidentiary matters.

118. [214]

     I also consider that weight should be given to the trial judge’s observations of Mr Mehajer’s ability to present his case, with appropriate assistance from the court (see at [172] stay judgment; see also 12/4/23; T 36) and the fact that his Honour did not have cause to change that opinion during the course of the trial. The trial judge is a very experienced judge. Had his Honour considered that there was disadvantage that could not be addressed by the provision of information or assistance to Mr Mehajer, I have no doubt that his Honour would have raised this at the time.

119. [215]

     Thus, I have concluded that there was no unfairness in the trial as it proceeded. I accept that Mr Mehajer demonstrated significant ability to represent himself; he was provided sufficient information about the charges, criminal procedures and the relevant rules of evidence throughout the trial; the trial judge was proactive in identifying relevant issues and discussing them with Mr Mehajer to ensure his rights were protected; and Mr Mehajer was provided practical assistance, facilities and time to prepare and conduct his case effectively.

120. [216]

     Accordingly, both Grounds 1 and 3 should be dismissed.

121. [217]

     Proposed Ground 2 of the conviction appeal relates to “fresh and new evidence” that Mr Mehajer says is available and relevant to the authenticity of trial Ex X (a document produced by DTS Catto-Pitkin reproducing images from the complainant’s iCloud account, being copies of screenshots already contained in Ex D, Ex J and Ex H, and pp 5-15 of Ex G, supplemented by the addition of three A4 photographs of the complainant’s arm) and the complainant’s credit.

122. [218]

     Mr Mehajer submits that the time taken for the trial judge to determine his application to recall the complainant “to ask her via video link one question” significantly outweighed the time it would have taken for the complainant to be recalled and to be asked the “one question” in issue. He submits that the trial judge erred in concluding that “it was unknown what evidence there might be if the applicant undertook the proposed investigation, which of itself would involve a significant loss of time”. Mr Mehajer notes that his Honour accepted that nothing was said to the complainant in cross-examination about the images (Ex X) being photoshopped. Mr Mehajer accepts that the complainant was questioned about manipulated text messages but says that he made clear that this was not the same thing.

123. [219]

     Mr Mehajer says that the one question asked of the complainant by the court appointed questioner in relation to Ex X was whether there was any reason as to why the images “[that] show your arm being red, have you not been provided to Police?”, to which there was an objection by the Crown (that the question assumed that the images had not been provided). Mr Mehajer says that, after this, the Court appointed questioner “lost momentum” and did not liaise with him to amend the question but moved on to the following question. Mr Mehajer also says that the trial judge did not respond to the Crown’s objection to the question (4/5/23; T 832). Mr Mehajer relies on this to demonstrate that his lack of representation had significant impact.

124. [220]

     Mr Mehajer submits that the “fresh” evidence establishes his innocence or gives rise to such a doubt about guilt that the verdicts cannot be allowed to stand; and hence there was a miscarriage of justice in the fact that it was not adduced at the trial.

125. [221]

     As noted in relation to the motion to adduce new evidence, the respondent says that the evidence the subject of Ground 2 falls in the category of “new” (not “fresh”) evidence and I agree with that assessment.

126. [222]

     As to the evidence of Mr Mehajer as to his “voice confrontation” condition, the respondent says that the proposed new evidence consists of Mr Mehajer’s self-diagnosis based on a general Google search (see above at [136]). The respondent submits that the condition is not capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings, and therefore irrelevant (s 55 of the Evidence Act) and that it is also inadmissible pursuant to s 76 of the Act.

127. [223]

     In any event, the respondent says that the proposed new evidence does not demonstrate a miscarriage. The respondent says that the record of the trial demonstrates that Mr Mehajer was able to listen to recordings of his own voice (but had a preference not to listen to them on the courtroom speakers). It is noted that arrangements were made for Mr Mehajer to listen to the recordings on a laptop, and Mr Mehajer was provided transcripts of audio recordings relied on by the Crown. Mr Mehajer cross-examined the complainant about the content of those calls, and made submissions about them to the jury. The respondent says that there is no basis to conclude that Mr Mehajer’s trial was unfair in this respect. I agree for the reasons given earlier.

128. [224]

     As to Ms Mooney’s evidence, this has been discussed above. Again, it is mere speculation and, even if admissible given that it goes only to the complainant’s credit, I do not accept that it raises a reasonable doubt as to guilt.

129. [225]

     For the reasons given earlier, the evidence identified in relation to this proposed ground of appeal was not sufficiently cogent to conclude that its omission from the trial caused a miscarriage to occur. Ground 2 should be dismissed.

Proposed sentence appeal

1. [226]

   It is not necessary here to summarise the reasoning in the sentence judgment. The sole ground of appeal now sought to be raised against sentence (the contention that there is a striking discrepancy between the custodial conditions the sentencing judge had been led to believe Mr Mehajer would be subject to and the actual conditions that he faced) has no prospects of success as it relies upon events after the sentence judgment (of which the trial judge had no evidence before him for obvious reasons). It is not the function of an appellate court to review the adequacy or otherwise of a sentence in light of events subsequent to the sentencing (see R v Munday (1981) 2 NSWLR 177 at 178 per Street CJ, with whom Moffitt P and Lee J agreed, cited in Toller v R [2021] NSWCCA 204 per Beech-Jones J, as his Honour then was, at [20], Macfarlan JA and Davies J agreeing). There is no challenge to the trial judge’s findings as to the facts of the offending, his Honour’s assessment of the objective seriousness of the offences, the findings in relation to Mr Mehajer’s subjective case, or the determination of indicative sentences. Moreover, Mr Mehajer is no longer in custody.

2. [227]

   Leave to appeal against sentence should be refused and it is not necessary to consider the material relied on by the respondent in the event of re-sentence.

Conclusion

1. [228]

   For the above reasons, the following orders should be made:

   1. (1)

      Grant leave to appeal against conviction.

   2. (2)

      Dismiss appeal against conviction.

   3. (3)

      Refuse leave to appeal against sentence.

2. [229]

   PRICE AJA: I agree with Ward P.

3. [230]

   FAGAN J: I agree with Ward P. Her Honour’s reasons provide considerable detail of the applicant’s trial on the charges of personal violence and of the adjournment and stay applications in respect of that trial. I agree with her Honour’s detailed assessment of the fair conduct of the proceedings and of the way in which that bears upon the specific issues that the Court has to decide on this leave application. I would only add the following observations, at a higher level, about the fairness of the trial.

4. [231]

   Mr Mehajer’s ancillary applications – with respect to adjournment, stay, recall of the complainant, arrangements for reviewing evidence of intercepted conversations and so on – were persistent, repetitive and unmeritorious. His Honour Judge Bennett SC showed exemplary patience in dealing with the applicant, as an unrepresented accused, in all those matters.

5. [232]

   From the outset the judge explained that throughout the trial it would be his duty to inform the applicant of relevant legal principles, aspects of procedure and issues that it would be open to the applicant to raise in his defence. That duty was thereafter performed in a textbook example of fair treatment of a self represented accused person. A notable feature was his Honour’s liberal allowance of frequent short adjournments during the applicant’s cross-examination of Crown witnesses, to enable him to collect his thoughts and to formulate questions to be put by the intermediary. With similar consideration, his Honour very fairly timed the Crown’s final address so that the applicant would have substantial time out-of-court within which to digest the Crown’s submissions before having to make his own speech to the jury.

6. [233]

   His Honour paid continuous attention to the applicant’s presentation and he remained assured that there was no behavioural disturbance that might compromise the applicant’s ability to present his defence. The judge made observations at various stages of the trial that showed he was following the content of the applicant’s questioning and submissions. His Honour was at all times satisfied of the applicant’s competence to conduct his case. With respect to the applicant’s very unusual claim that he experienced discomfort hearing his own voice replayed in court, Judge Bennett SC patiently arranged for alternative means of ensuring that the applicant was aware of what was played back to the jury and that he could ascertain the content of any additional recorded conversations that he might consider useful to his own case.

7. [234]

   The trial was conducted with scrupulous fairness.