Mehajer v R

1. [1]

   THE COURT: This is an application for leave to appeal against conviction, or alternatively sentence, following a trial of the applicant, Salim Mehajer, by judge alone in the District Court. The applicant was tried and convicted on two counts of doing an act with the intent to pervert the course of justice, and one count of making a false statement on oath, knowing the statement to be false, concerning a matter material to judicial proceedings, as follows:

2. [2]

   Counts 1 and 3 were laid under s 319 of the Crimes Act 1900 (NSW), in these terms:

3. [3]

   Count 2 was laid under s 327(1) of the Crimes Act, in these terms:

4. [4]

   The trial was conducted over 24 days between June and August 2020. On 16 September 2020, the defence made an application to reopen the case to tender a psychiatric report concerning the applicant’s mental state. That application was allowed. On 2 October 2020, the trial judge (Zahra SC DCJ) found the applicant guilty and convicted him on each of the three counts and published his reasons for decision (the verdict judgment).

5. [5]

   On 23 April 2021, Judge Zahra SC imposed an aggregate sentence of imprisonment of 3 years and 6 months, with an aggregate non-parole period of 2 years and 3 months.

6. [6]

   Leave to appeal against conviction is required as the grounds involve a question of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(1)(b). Leave to appeal against sentence is also required: Criminal Appeal Act, s 5(1)(c). In each case, there should be a grant of leave. It is convenient to continue to refer to Mr Mehajer as the applicant.

7. [7]

   At trial, the applicant was represented by counsel. In this Court he was self-represented. His written submissions in chief were lengthy, extending to 80 pages, including 45 pages in handwriting. His affidavit in support of an application to admit new and fresh evidence on appeal comprised 12 pages together with 135 pages as annexures. In oral argument, the applicant was articulate and focused in advancing his case on appeal. After the Court reserved judgment, the applicant sought leave to rely upon an unsworn affidavit advancing new and further argument in support of his appeals. The applicant also filed a release application pending the determination of the appeal. These applications are addressed below.

8. [8]

   For the reasons that follow, both appeals should be dismissed.

Outline of the background facts

1. [9]

   The applicant was the sole shareholder in two companies, SET Services Pty Ltd (SET Services) and Sydney Project Group Pty Ltd (Sydney Project Group), which owned two parcels of land at John Street, Lidcombe upon which the development of “Skypoint Towers”, a 10-storey mixed residential and commercial tower, commenced in 2014.

2. [10]

   In May 2016, the development was refinanced by SC Lowy Financial (HK) Ltd (SC Lowy), a Hong Kong based alternative asset manager and broker, and LIM Opportunistic Fund 2 LP (LIM). As part of those arrangements, Mr Kenneth Lee from SC Lowy was appointed as sole director and secretary of the applicant’s companies, SET Services and Sydney Project Group, on 26 April 2016. Mr Lee ceased to be a director of those companies on 16 June 2017. Mr Ben Madsen, an employee of SC Lowy, was responsible for SC Lowy’s exposure to SET Services and Sydney Project Group, which at certain points of time was in excess of $90 million.

3. [11]

   In mid-2017, the development encountered financial difficulties. On 16 June 2017, Mr Lee as the sole director of SET Services and Sydney Project Group appointed Mr Michael Hogan and Mr Christian Sprowles as voluntary administrators of those companies. Also on that date, SC Lowy and LIM appointed Mr Todd Gammel and Mr Barry Taylor (of HLB Mann Judd) as receivers and managers of those companies. The receivers’ main contact with SC Lowy was Mr Madsen.

4. [12]

   The construction of Skypoint Towers completed in July 2017 and sales of the apartments were progressively completed, and owners commenced moving into the building. On about 21 July 2017, the receivers appointed Sarraf Strata as the interim strata managers of the development having sought proposals from prospective strata management companies to act as the strata manager for the interim period up to the first annual general meeting (AGM) of the owners corporation for the residential and commercial strata schemes.

5. [13]

   On 16 August 2017, three companies were registered: Skypoint Strata Services Pty Ltd (Skypoint Strata Services), On Call Strata Services Pty Ltd (On Call Strata Services), and On Call Strata (NSW) Pty Ltd (On Call Strata NSW), with Mr Mohammed Abbas as the director and secretary of each company; he was the applicant’s solicitor in relation to the Skypoint Towers development. The applicant was the sole shareholder of On Call Strata NSW, which in turn was the sole shareholder in Skypoint Strata Services and On Call Strata Services. Hence, the applicant controlled those two companies.

6. [14]

   During August 2017, the applicant represented himself as the interim building manager to occupiers and to the interim strata manager, Sarraf Strata. This was done without the knowledge or consent of the receivers. In late August 2017, the receivers became aware that On Call Strata Services and Skypoint Strata Services were representing themselves as the building managers through notices posted in the lobby of Skypoint Towers. The receivers also became aware that Ms Constantina Siaflina was purporting to provide “concierge” services to occupants at Skypoint Towers and was occupying a unit on the ninth floor without authority. The receivers took steps to prevent the applicant accessing the site and informed both Ms Siaflina and the applicant that they were acting without authority of the receivers.

7. [15]

   On 6 September 2017, the receivers appointed the Lefand Group as the interim building managers until the first AGM. This appointment was recorded in an agreement signed by the receivers and the Lefand Group on 8 September 2017 (Ex 18). The agreement included the quotation by the Lefand Group of $6,950 plus GST per month for “[b]uilding management on-site, 20 Hours a week plus 24/7 emergency support, inclusive of all meetings” (emphasis in original).

8. [16]

   On 9 November 2017, Sarraf Strata informed the receivers that due to delays in finalising the development they could no longer act as interim strata managers, for which they had not been charging any fees. On 29 November 2017, the receivers appointed Prestige Strata as the interim strata managers until the first AGM.

9. [17]

   The agenda for the first AGM of the residential strata plan included in item 10 (“Building Management Contract”) reference to three contracts/quotes to be tabled, and one was to be accepted from Skypoint Strata Services, Lefand Group and Prestige Strata. The proposal from Skypoint Strata Services was ultimately not tabled at the meeting because Ms Maree Lane of Prestige Strata considered that Skypoint Strata Services was associated with a developer, being the applicant.

10. [18]

    At the first AGM meeting on 19 December 2017, the owners corporation for the residential strata plan appointed Prestige Strata as the strata managing agent and the Lefand Group as the strata building manager. The receivers retired shortly thereafter on 22 December 2017. The first AGM in respect of the commercial strata plan in Skypoint Towers was not held on the scheduled date of 19 December 2017 due to non-attendance; that meeting was adjourned to 30 January 2018, when the Lefand Group was appointed as the building manager of the commercial properties.

Nature of the Crown case

1. [19]

   The Crown case was that the receivers had exclusive responsibility for the control and management of the development, including the appointment of interim strata managers and building managers of Skypoint Towers.

2. [20]

   On the Crown case, the receivers never appointed the applicant or any of his companies, specifically, On Call Strata Services or Skypoint Strata Services, as interim building manager of Skypoint Towers in August 2017 or at any time up until the first AGM of the owners corporation on 19 December 2017, when the Lefand Group was appointed the building managers of the residential properties. It was also the Crown case that, contrary to the applicant’s assertions, Mr Madsen of SC Lowy had no authority to appoint the applicant or any of his companies as interim building manager of Skypoint Towers, nor did Mr Madsen ever do so.

3. [21]

   The three offences alleged against the applicant arose in the context of two separate bail applications made by the applicant. Counts 1 and 2 relate to an application to vary bail conditions heard on 14 December 2017 at the Burwood Local Court. Count 3 relates to a release application heard on 7 March 2018, also at Burwood Local Court.

4. [22]

   The applicant had been charged on 20 November 2017 with several domestic violence-related offences. He was granted conditional bail that day at Burwood Local Court. One of the bail conditions was that the applicant observe a daily curfew by residing at his home between 10 pm and 5 am.

5. [23]

   In support of an application to vary bail the applicant swore an affidavit on 11 December 2017 deposing that he had been awarded a contract for building management, security and concierge services at the Skypoint Towers building and that he would be unable to perform his obligations under that contract unless his bail conditions were varied. The relevant contents of that affidavit, including an attached letter from Mr Alidine (Ali) Ramadan, General Manager of On Call Strata Services, is reproduced at [78]-[79] below.

6. [24]

   The Crown case was that the affidavit was false, that the applicant knew that the assertion that he had been awarded the contract was false and that he made the false assertion with intent to mislead the Court and obstruct the proper assessment of the Court of the matters it was required to consider in making a determination under the Bail Act 2013 (NSW). This conduct was the subject of count 1.

7. [25]

   On 14 December 2017, the applicant’s 11 December affidavit was placed before the Magistrate at the Burwood Local Court during the bail variation hearing. The applicant was self-represented. He gave sworn evidence confirming the truth of the contents of his affidavit and particularised further details of the employment contract. The applicant’s oral evidence included:

8. [26]

   This conduct was the subject of count 2. The application to vary bail was refused.

9. [27]

   On 23 January 2018, the applicant was arrested in relation to a separate charge of perverting the course of justice and related charges and was refused bail by the police. He made a release application which was refused by the Magistrate at the Waverley Local Court on 24 January 2018.

10. [28]

    On 7 February 2018, the applicant made a release application at Burwood Local Court. He was represented by counsel. The Magistrate refused to hear the application, given s 74 of the Bail Act prohibits a court hearing another release application unless there are grounds for a further release application, being one of the grounds stated in s 74(3).

11. [29]

    On 7 March 2018, the applicant made a further release application at Burwood Local Court. He was self-represented. When presenting his case under s 74(3) of the Bail Act, the applicant contended that there was further material relevant to the grant of bail which had not been presented on a previous application. The applicant tendered a bundle of documents comprising 77 pages, which included three documents (the contents of which are relevantly reproduced at [94]-[96] below), being:

12. [30]

    The applicant relied upon the proposal document as evidence of an employment agreement between himself and On Call Strata Services. The Crown case was that three documents forming part of the applicant’s tender bundle were false to the knowledge and belief of the applicant. The Crown alleged that the applicant knew that the content of these letters was false and falsely represented that the proposal document was an employment agreement in order to mislead the Court and obstruct the proper assessment by the Court of the matters the Court was required to consider in making a determination under the Bail Act. This conduct was the subject of count 3.

13. [31]

    The release application was refused.

The defence case

1. [32]

   The defence case was that the applicant believed he held an employment agreement with On Call Strata Services to provide building management services at Skypoint Towers at the time he swore his affidavit on 11 December 2017, when he gave evidence at the Burwood Local Court on 14 December 2017, and when he made submissions and presented material at the Burwood Local Court on 7 March 2018.

2. [33]

   The defence case contended that:

   1. (1)

      prior to the appointment of the receivers in June 2017, the applicant provided a free building management service to residents in the interim period before the first AGM of the owners corporation, and there was an expectation that the applicant, through his entities, would be appointed in the role of building manager at that meeting;

   2. (2)

      although the applicant believed the interim period before the first AGM of the owners corporation would be relatively brief, there was a delay for some period because of settlement negotiations with the financiers and receivers;

   3. (3)

      the applicant had provided building management services at Skypoint Towers personally and from mid-August 2017 in his capacity as an employee of On Call Strata Services, and this was a continuation of the arrangements that had been put in place with the builder and set out in the Residential Manual prepared by the builder, and following the appointment of the receivers in June 2017 the applicant continued to provide such services with the authority of the receivers;

   4. (4)

      against the background of the applicant threatening legal action about the appointment of the receivers that, in order to keep the applicant “onside”, Mr Madsen told the applicant that he could undertake the role of building manager;

   5. (5)

      the building management services provided by the applicant encompassed both the interim period up to the first AGM of the owners corporation on 19 December 2017 and the period after 19 December 2017, and the services he provided included building management services, concierge and security services at Skypoint Towers; and

   6. (6)

      if there was no building management agreement in place, the Crown could not exclude the possibility that the applicant believed that he was subject to an employment agreement with On Call Strata Services and that, acting on that belief, he acted to perform the agreement in the period between August 2017 to 7 March 2018 when he renewed his application for bail before the Burwood Local Court.

The verdict judgment

1. [34]

   The trial judge’s reasons for verdict were detailed and comprehensive extending to over 200 pages, divided into five parts:

   1. (1)

      Part A addressed general directions of law to be applied by the judge. No complaint is made in relation to those directions;

   2. (2)

      Part B identified the elements of the offence and contained an overview of the evidence relied upon in the Crown case;

   3. (3)

      Part C considered the evidence at trial;

   4. (4)

      Part D addressed the defence case, specifically the evidence of the applicant, and summarised the submissions of defence counsel; and

   5. (5)

      Part E, headed “Determination”, summarised the Crown and defence cases, addressed the medical evidence adduced on the reopening of the applicant’s case, and set out the judge’s findings of fact and conclusions in relation to the three counts.

Elements of the offences

1. [35]

   There is no dispute that the trial judge correctly identified the elements of the three alleged offences in Part A of his verdict reasons. As to counts 1 and 3 (perverting the course of justice), his Honour stated the elements of this offence (at [45] and [68]):

2. [36]

   As to count 2 (perjury), his Honour stated the elements of this offence (at [57]):

3. [37]

   In addition, with respect to count 2, his Honour noted (at [58]-[62]) that the common law rule regarding the need for corroboration of evidence where a person is charged with perjury, applied to the statutory offence in s 327 of the Crimes Act, referring to R v Linehan [1921] VLR 582; (1921) 27 ALR 348 and R v Fish; R v Swan [2002] NSWCCA 196; (2002) 131 A Crim R 172 at [37]-[40] (Bell J, Ipp AJA and Dunford J agreeing). His Honour continued (at [62]-[63]):

The evidence relied upon in the Crown case

1. [38]

   The trial judge referred in detail to the evidence in the Crown case at [92]-[279]. It is of assistance first to outline the evidence concerning the provision of building management services for Skypoint Towers.

2. [39]

   In April 2017, the builder of the Skypoint Towers development, Alliance Project Group (Alliance), requested information from the applicant concerning the building management for inclusion in a “Residential Manual” to be given to occupants of Skypoint Towers upon settlement of sales of units in the development. The applicant provided the name and phone contact details for Skypoint Towers Pty Ltd (SPT) as the building manager. He was the sole shareholder of SPT.

3. [40]

   In the section of the Residential Manual headed “Building Management”, it was stated that SPT had been appointed to provide onsite building management services for the building and gave SPT’s contact details and business number. In the section headed “Building defects”, the manual gave as contact details, the business number of SPT and the applicant’s mobile phone.

4. [41]

   On 22 August 2017, the applicant sent an email to his accountant, Mr Boutros (Ex F), stating:

5. [42]

   In late August 2017, the receivers became aware that Ms Siaflina was occupying unit 910 in Skypoint Towers and was purporting to provide “concierge manager” services to occupants at Skypoint Towers. One of the receivers, Mr Gammel, informed the applicant by email on 31 August 2017 that this conduct was unauthorised, that Ms Siaflina had not been engaged by the receivers or the strata manager and that she had not been granted access to the premises.

6. [43]

   The applicant, who was then in the USA having departed on 23 August 2017, responded to Mr Gammel by email on 31 August 2017 stating that unit 910 was a display unit and no one was occupying it, and Ms Siaflina was the “strata / concierge” working with Sarraf Strata on a “free basis to assist tenants with defects and access”. Sarraf Strata separately confirmed to the receivers by email on 31 August 2017 that they had not approved any contractor on the site.

7. [44]

   On 1 September 2017, Mr Gammel received an email from Ms Samantha Levenski “on behalf of Constance Siafla” (sic) requesting that “my position is reinstated until settlement takes place between those involved” and stating that her services were not yet costing “you, anyone anything”.

8. [45]

   On 4 September 2017, Mr Hocking, on behalf of the receivers, sent an email to Ms Siaflina and Sarraf Strata noting that the receivers had become aware that Ms Siaflina had been providing concierge building management services without consent or engagement by the receivers and stating that the receivers would consider allowing her to continue in that interim role subject to receiving responses to seven questions.

9. [46]

   The applicant returned to Australia on 4 September 2017. On 5 September 2017, Mr Hocking received an email from info@skypointtowers.com.au responding to his 4 September email, with responses indicated in red which, relevantly, included:

10. [47]

    Mr Hocking responded by email on 5 September 2017 requesting that Ms Siaflina provide an engagement proposal and copies of current certificates of currency in respect of public liability, product liability and workers compensation insurance. Mr Gammel gave evidence that at this time the receivers were seeking a proposal from On Call Strata Services and Skypoint Strata Services, while also asking for proposals from other entities to have “comparative options”.

11. [48]

    On 6 September 2017, Ms Siaflina sent an email to Mr Hocking asking, “Please advise if the attached satisfies your request”, being a reference to attached emails she was receiving from residents who were left without gas and electricity and whom she had to assist. Mr Hocking responded by email on 6 September 2017 informing Ms Siaflina that the “[r]eceivers were not able to consider a proposal for Skypoint Strata Pty Ltd, On-Call Strata Pty Ltd or Skypoint Towers Pty Ltd to be appointed as interim building services manager” giving five reasons, which included that an engagement proposal detailing the scope of the services and workers compensation insurance details had not been provided, the certificate of currency in relation to other insurance policies named Skypoint Towers Pty Ltd not Skypoint Strata/On-Call Strata, and that Skypoint Strata/On-Call Strata had been providing unauthorised building management services without the prior knowledge or consent of the receivers.

12. [49]

    On 7 September 2017, Mr Hocking received an email from info@skypointtowers.com.au responding to his 6 September email, containing responses in red which, relevantly, included:

13. [50]

    Following the appointment of the Lefand Group as the interim building managers recorded in the agreement dated 8 September 2017, the Lefand Group appointed a contractor, Mr Donald Bong, to carry out the work of building manager. He gave evidence that he commenced on 11 September 2017 and continued in that role until 19 February 2018 when another colleague took over. He said that he attended the site daily, Monday to Friday, from 8 am to 4 pm, and he usually occupied the concierge desk and a security officer worked outside these hours. He was instructed by the receivers to contact them directly if the applicant entered the premises, which he did on one occasion, having seen the applicant on the CCTV recorder after hours on levels 9 and 10. Mr Raymond Diab was the relevant person at Sarraf Strata who undertook the duties as interim strata manager of Skypoint Towers. He gave evidence that once the Lefand Group was appointed by the receivers he did not deal with Ms Siaflina or the applicant; he said he dealt with Mr Bong from Lefand (J [250]).

14. [51]

    On 11 September 2017, the applicant sent an email to Mr Gammel, copied to Mr Madsen, requesting that the receiver “reappoint” On Call Strata Services and Skypoint Strata Services until at least the first AGM. This email was referred to at trial as the “kind request” email, and relevantly stated:

15. [52]

    Mr Madsen gave evidence that shortly after receiving this email he instructed Mr Gammel to reply to the applicant confirming that Sarraf Strata would remain the strata managers up until the first AGM and that the “Mehajer entities” would not be appointed as building managers or in any other role.

16. [53]

    On 12 September 2017, Mr Hocking on behalf of the receivers sent an email to Ms Siaflina, copied to Mr Sarraf and Mr Gammel, informing her that the receiver’s position regarding the appointment of another building manager on an interim basis remained unchanged.

17. [54]

    Mr Gammel sent an email to the applicant on 20 September 2017 at 3:07 pm, copied to Mr Madsen, which relevantly stated:

    1. (1)

       “[t]he position regarding the appointment of an interim building manager had been made clear”, and, the receivers understood that proposals to provide building management and concierge services on a permanent basis had been submitted to Sarraf Strata to be included in the first AGM notices of the residential strata plan and the building management committee, and would be put to owners for their consideration at the first meeting; and

    2. (2)

       occupation of units on level 9, including units 905 and 906, would likely erode the value in those units and increase costs to realise the units and the remaining assets of the building generally and the receivers had little option other than to remove any unlawful occupants from the development.

18. [55]

    At 3:11 pm on 20 September 2017, the applicant replied by email to Mr Gammel, copied to Mr Madsen, stating that the two units (on level 9) were not occupied. Relevantly, the applicant did not assert that On Call Strata Services or Skypoint Strata Services was currently acting as the building manager of the Skypoint Towers.

19. [56]

    On 5 October 2017 at 12:45 pm, the applicant sent an email to Mr Norman Sarraf of Sarraf Strata referring to a meeting which unfolded with the lender “today” and stated, “I am pleased to say concierge, security and building manager will be returned to us next week” (Ex J).

20. [57]

    Mr Madsen gave evidence in cross-examination that it was highly likely that there were meetings or phone conversations (with the applicant) that occurred around this time, where the issue of the outstanding debt was discussed. He did not recall a meeting on or about 5 October 2017 where an agreement was reached that the applicant, or companies that he proposed, would be able to perform building management, concierge and security from the following week. He said that he had no ability to appoint the building management, concierge and security, that there was nothing the lenders could have done to give the applicant authority, and if the applicant had raised the matter he would have said, “You have to go to the receiver to get any of this approved. We don’t have the authority to grant this to you”.

21. [58]

    During October 2017, Sarraf Strata received a proposal document, with a covering letter from Mr Abbas as director of Skypoint Strata Services and On Call Strata Services, for the appointment of Skypoint Strata Services as the building manager. A proposal for the provision of building services was also received from the Lefand Group.

22. [59]

    On 25 October 2017, the applicant’s shares in On Call Strata NSW were transferred to Ms Zena Osman, the applicant’s sister. On 2 November 2017, Sarraf Strata informed the receivers that the applicant had confirmed that he was no longer associated “in any shape, way or form with any of the companies on the agenda” and that the disclaimers are no longer required on the agenda. This was a reference to the disclosure on the draft agenda for the first AGM of any association between the developer and the entity proposing to provide services to the owners corporation, such as building services.

23. [60]

    On 27 October 2017, the applicant sent an email to Mr Madsen, copied to Mr Bill Yassine, stating that he had just driven past Skypoint Towers and that “you are wasting money with the security guards”. The email requested, “Please hand the job to Skypoint Strata Services and On-Call Strata”.

24. [61]

    As indicated, on 29 November 2017, the receivers appointed Prestige Strata as the interim strata managers in place of Sarraf Strata until the first AGM of the residential and commercial strata plans for Skypoint Towers.

25. [62]

    On 11 December 2017 at 7:22 am, the applicant sent a letter to the Mr Gammel, copied to Mr Madsen and Mr Yassine, with the subject heading “Maniac urgent matters” (Ex 6), which included:

26. [63]

    Mr Madsen responded to the applicant on at 10:37 am on 11 December 2017, relevantly:

27. [64]

    Mr Gammel agreed in cross-examination that the effect of Mr Madsen’s response was to direct the applicant to pursue his request directly with the interim strata manager, Prestige Strata.

28. [65]

    The applicant also sent a series of text messages to Mr Yassine on 11 December 2017 between 9:59 am and 11:39 am (Exhibit 33). The substance of these messages was that the applicant was “in court” (9:59 am) (he was in the Wollongong Local Court), that he urgently needed Mr Yassine to telephone “Todd” and inform him that if anyone called he should confirm that the building management is On Call Strata, “I’m building manager”, and also “the concierge” (10:02 am-10:11 am).

29. [66]

    In a text message at 10:44 am, the applicant requested Mr Yassine to obtain a letter “now” from Prestige Strata confirming “that we are currently the appointed strata body” and “[t]he building management, concierge and security is On Call Strata NSW”. Mr Yassine replied at 10:54 am that he was “Working on it now”. The applicant texted Mr Yassine at 11:18 am, “Todd is in the office. They are on the phone with him now”. Mr Yassine replied by text message to the applicant at 11:18 am, “Check your email maree sent its her call”. This was a reference to an email which Mr Yassine had drafted and sent to Ms Lane of Prestige Strata by email at 11:01 am, to which Ms Lane responded in an email to the applicant at 11:12 am with the subject heading, “Prestige appointment of On Call Strata (NSW)”, in the following terms:

30. [67]

    Ms Lane was the licensee and a director of Prestige Strata. She gave evidence that she did not attend the Skypoint Towers site before the first AGM on 19 December 2017, that she was in constant communication with Mr Gammel and she believed someone else was performing the building management work at the site but did not know who it was and she thought that Mr Gammel had mentioned that there was an interim building manager. Ms Lane stated that she cut and copied the email she received from Mr Yassine for her own email to the applicant. She said the contents of her email were not true and she did not know what the email was going to be used for. When asked why she sent the email if it was untrue she answered, “A few reasons”, one being intimidation from Mr Yassine, another being she felt obligated because of business relationships she previously had with Mr Yassine and he had called several times pressuring for her to send the email. In cross-examination, Ms Lane confirmed that the reason she wrote this email was because Mr Yassine asked her. She adhered to her evidence that there was intimidation from Mr Yassine.

31. [68]

    The applicant sent a series of further text messages to Mr Yassine at 11:18-11:19 am:

32. [69]

    Mr Yassine responded to the applicant at 11:20 am, “New strata appoints manager not todd”. Following further text messages from the applicant, Mr Yassine responded at 11:23 am, “It’s not todd’s call, it’s new strata”. Mr Yassine sent a further text message to the applicant at 11:30 am to similar effect.

33. [70]

    At 11:39 am, the applicant texted Mr Yassine:

34. [71]

    At 12:18 pm, the applicant texted Mr Yassine:

35. [72]

    Mr Yassine responded at 9:30 pm on 11 December 2017, “Call me”.

36. [73]

    At 6.30 pm on 13 December 2017, Mr Yassine sent a text message to the applicant:

37. [74]

    At 9:49 pm, the applicant texted Mr Yassine:

38. [75]

    At 9:50 pm, Mr Yassine responded to the applicant:

39. [76]

    At 9:51 pm, the applicant replied to Mr Yassine:

40. [77]

    At 9:55 pm, Mr Yassine texted the applicant:

41. [78]

    The applicant deposed in his 11 December affidavit:

42. [79]

    The letter to the applicant from Mr Ramadan as General Manager of On Call Strata Services, referred to in par 4 of the applicant’s affidavit, was in the following terms:

43. [80]

    As indicated, at the first AGM of the residential strata plan on 19 December 2017, Prestige Strata was appointed as strata manager and the Lefand Group was appointed the building manager of the residential properties.

44. [81]

    On 20 December 2017 at 11:30 pm, Mr Nathan Champley, managing director of the Eminent Group, a cleaning company, emailed the applicant stating that he had been indirectly told that the residential cleaning “is going to Lefand as they have undercut me” and this was a little disappointing to hear.

45. [82]

    Following this email from Mr Champley, the applicant and Mr Yassine exchanged text messages on 20 December 2017. At 11:49 pm, the applicant texted, “I need to ensure we now get cleaning BM concierge”. Mr Yassine replied at 11:52 pm that he would call “marie”. The applicant responded at 11:54 pm, “That means we need to put a quote together overnight”.

46. [83]

    At 8:36 am on 21 December 2017, Mr Yassine texted the applicant:

47. [84]

    At 11:10 am on 21 December 2017, Mr Yassine sent an email to Ms Lane stating:

48. [85]

    Ms Lane gave evidence that she did not recall receiving this email and noted that her office was closed from 20 December 2017, as was recorded on her email of 11 December 2017.

49. [86]

    At 9:01 am on 22 December 2017, an email from Maree@timberlandre.com.au was sent by iPhone to Mr Yassine and the applicant:

50. [87]

    Ms Lane gave evidence that the “timberlandre” email address was hers, but she could not recall writing this email. She said that no one would have access to her emails and was unsure how anyone else could have written the message and that she would never email anyone regarding the strata using the Timberland Real Estate email. She also said that the wording and vocabulary of the email was not hers and she did not have any association with the applicant after her first initial meeting when he came to her office with Mr Abbas before 11 December 2017.

51. [88]

    At 9:18 am on 22 December 2017, the applicant emailed Ms Lane at her “timberlandre” address, copied to Mr Yassine:

52. [89]

    Ms Lane gave evidence that she had not received this email.

53. [90]

    The next email in this chain was from Maree@timberlandre.com.au at 9:30 am on 22 December 2017 replying:

54. [91]

    Ms Lane denied writing this email. When asked if she could explain how the email came to be written from her account, she answered that she was not in the office and if emails were written to her, “[m]y out-of-office would have been on this email chain as well”, and since “out-of-office hasn’t popped up in the email chain” she did not know how it would have happened, but it was not written “from my cell”. She adhered to her evidence that the office was closed from 20 December onwards and that nobody else would have been in the office on this date. She agreed she had access to emails on her mobile phone and said that her signature block would not have been generated as shown in this email as “Maree Lane / Timberland”. She said anybody can cut and copy a signature, that she did not recall writing this email at all, nor the actual contents and anything in this email.

55. [92]

    On 30 January 2018, the Lefand Group was appointed as building manager for the commercial properties at the first AGM for the commercial strata plan for Skypoint Towers.

56. [93]

    As indicated, the applicant tendered a bundle of documents on the release application on 7 March 2018, which included the three documents referred to below.

57. [94]

    The first was a letter to the applicant dated 14 February 2018 on the letterhead of Skypoint Strata Services and On Call Strata Services, and signed by Mr Ramadan, Acting General Manager, which stated:

58. [95]

    The second was a letter dated 24 February 2018, again on the letterhead of Skypoint Strata Services and On Call Strata Services, and signed by Mr Ali Ramadan, Acting General Manager, which stated:

59. [96]

    The third was the “proposal document” titled “Skypoint Towers Lidcombe” setting out a building management proposal and contained details of the services to be provided to the occupants of Skypoint Towers, including building maintenance onsite service seven days per week, concierge services onsite service seven days per week; Monday to Friday 9AM to 5PM; Saturday and Sunday 10AM to 2PM, security onsite as required and cleaning onsite service seven days per week. The final page contained a quotation for the provision of building management, concierge, security and cleaning amounting to $280,000 + GST. As noted, this document was signed by Mr Ramadan and the applicant and was dated 19 August 2018.

The applicant’s evidence

1. [97]

   The trial judge referred in detail to the applicant’s evidence (at [280]-[349]) and summarised the defence case (at [350]-[363]). What follows is an outline of the main aspects of the applicant’s evidence.

2. [98]

   In his evidence in chief, the applicant said that as of 11 December 2017 his understanding that he was the building manager was mainly through face-to-face conversations with Mr Madsen. He did not recall Mr Gammel being present for these conversations but said Mr Madsen told him he had informed Mr Gammel. He said it was “days to weeks” before 11 December 2017 that he had the last discussion with Mr Madsen confirming this; then he said it was “days, to be more precise, days”.

3. [99]

   When shown Ex 33, the text messages between himself and Mr Yassine on 11 December 2017, the applicant said that he recalled his lawyer, Mr Matthew Ward, being on a conference or speaker phone to Mr Gammel, he did not hear Mr Gammel’s voice and he was told by Mr Ward that Mr Gammel said, “No”. The applicant said that his “Fuck him” text message to Mr Yassine was sent in disbelief, because he had approached Mr Gammel with the expectation that he would say what they had agreed upon. The applicant said that his message referring to his need for a letter from the receiver confirming that they had appointed Sarraf Strata and Sarraf Strata had appointed us, was a reference to his understanding of the agreement “with the receiver via Mr Madsen”.

4. [100]

   In cross-examination, when taken to his “I am a fighter” 22 August 2017 email to his accountant, the applicant said that he knew there was an obstacle of the receiver’s approval, but ultimately Mr Madsen could retire the receiver at any time because it was a voluntary administration and he had control. The applicant said the approval was given over several phone calls, but then said it was mainly emails. He said that Mr Madsen was not telling the truth when he gave evidence that he was not in a position to do anything like that.

5. [101]

   The applicant agreed that he knew that the receiver was the only person who had the authority to appoint an interim manager. He said that he knew the receiver was going to retire and he never thought of a time “on contract between the receiver, On Call or myself”. When asked “where’s the contract?” the applicant responded:

6. [102]

   The applicant agreed that when the receiver found out that he and Ms Siaflina had been acting as building managers, they asked them to stop going to the site. The applicant also agreed that there was a period of a few weeks when the Lefand Group were interim managers. He stated that they were then sacked and On Call were retained on an informal basis. He said there was a “short window” where it was clear that the contract had been lost to On Call. He then said that Mr Madsen said Lefand should remain there because he is the face of the building management, but the applicant would still work there and Lefand “was just the face of it to appear”. The applicant said that this conversation with Mr Madsen occurred in September and October 2017 when he was trying to be reappointed again.

7. [103]

   When asked if he was saying that he never knew about the Lefand Group up until the first AGM, the applicant responded that at one stage, when he was terminated from the building, he knew Lefand was the building manager “on paper”, but they were not acting and people were still contacting the applicant. The applicant said “there was a small window, a couple of weeks, where I couldn’t attend because I was obviously locked out. I negotiated with Ben Madsen, and I was appointed back again”.

8. [104]

   When taken to the text message the applicant sent to Mr Yassine on 13 December 2017 stating, “I fear [in case] they call her and she says we haven’t started”, the applicant agreed that was what the message said but disagreed that was because he knew that what Ms Lane said in her email was not true.

9. [105]

   The applicant accepted that there was “no formal proper contract in place between the receiver and myself”. He said, “There were all these agreements” and “so-called brochures”, which the applicant referred to as “contracts”, but he was poorly guided. He accepted there was an issue in September 2017 and he had been notified that the receiver had terminated “On Call and myself” and said that he had met with Mr Gammel and Mr Madsen to rectify the issue and believed that he had.

10. [106]

    In response to the suggestion that the applicant knew in September 2017 that the Lefand Group had been appointed by the receiver to provide interim building management services, the applicant said that he knew they were appointed at one stage “to be the name on paper”.

11. [107]

    The applicant gave evidence that he recalled receiving the email from Ms Lane on 22 December 2017 referring to the appointment by the receivers of the Lefand Group as onsite manager. He said that after replying to Ms Lane at 9:18 am setting out his preferred structure and receiving her email response at 9:30 am stating “Yes, this could work”, he believed that On Call’s rights to the building management contract were under control and that everything was still in place.

12. [108]

    Addressing the letter from Mr Ramadan dated 14 February 2018, the applicant denied the proposition put by defence counsel that the letter is “false” and was just a “contrivance”. The applicant said, “It was what the agreement I had with On-Call, and On-Call had nobody to replace this”.

13. [109]

    The applicant said that Mr Ramadan and Mr Abbas were interested in having him as an employee but were not interested in other employees doing the role that the applicant was meant to do. He said, “If there was other employees, they’re just not interested in taking on that role”. Addressing the second letter from Mr Ramadan dated 24 February 2018, the applicant said that he requested Mr Abbas to “get an extension”, that he spoke to On Call Strata and “Alli” (being a reference to Mr Ramadan) and obtained a new letter.

14. [110]

    Addressing the proposal document, the applicant agreed that it was effectively a “promotional-type document”. The applicant said that the document was signed in August 2017, although someone had inadvertently dated the document 19 August 2018. He could not recall seeing a date when he signed it, as his focus was on his signature.

The trial judge’s findings – verdict judgment

1. [111]

   The trial judge’s detailed findings in Part E of the verdict judgment can be conveniently grouped as follows.

2. [112]

   Identity of building manager: On Call Strata Services was not, nor was the applicant personally, awarded a contract to provide interim building management services at Skypoint Towers (at [373], [375]). At no stage was the applicant engaged by the receivers in any role related to the building management of Skypoint Towers, and the applicant was aware he had no authority to act as the interim building manager (at [375]).

3. [113]

   Rejecting the applicant’s evidence, the trial judge found that:

   1. (1)

      the Lefand Group was not simply the “face” of building management of Skypoint Towers: at [376];

   2. (2)

      the applicant did not continue to provide building management services with the authority of the financiers and receivers: at [376];

   3. (3)

      there was no basis for the belief asserted by the applicant that he had authority to provide building management services and was doing so pursuant to an agreement between himself and Mr Madsen, the representative of one of the financiers, SC Lowy: at [378];

   4. (4)

      the fact that Mr Madsen on behalf of the financier and Mr Gammel acting as the receiver did not provide the confirmation sought by the applicant in his 11 December 2017 email under the subject heading “Maniac Urgent Matters” that “On Call Strata has the building management and concierge services (24/7) for Skypoint Towers”, is consistent with their evidence that at no time was the applicant engaged or authorised to carry out building management services at Skypoint Towers: at [392];

   5. (5)

      the evidence of Mr Madsen that he did not authorise or approve the applicant, or any person or entity associated with him, to engage in building management, concierge services or security services in the interim period, was accepted: at [396];

   6. (6)

      there was no basis for the applicant believing that he personally, or On Call Strata Services, had the authority to continue to provide building services to Skypoint Towers, as he had maintained in his evidence: at [380];

   7. (7)

      the applicant’s evidence that until the time of his arrest (on 23 January 2018) he was still acting as the building manager at Skypoint Towers, could not be accepted: at [386]; and

   8. (8)

      the Crown had excluded beyond reasonable doubt the possibility that the applicant believed an agreement was in place from August 2017 for On Call Strata Services to provide building management services and concierge services: at [395].

4. [114]

   No agreement between Prestige Strata and On Call Strata: During the period when Prestige Strata was acting as interim strata manager (from 29 November 2017 to 19 December 2017):

   1. (1)

      Prestige Strata did not undertake building management services, nor did they have the authority to appoint any person or entity to undertake building management services at Skypoint Towers, nor did Prestige Strata exercise any authority at any time to appoint On Call Strata Services or appoint the applicant personally to undertake building management services at Skypoint Towers: at [388];

   2. (2)

      the Lefand Group acted as interim building managers from 6 September 2017 up until the time of the first AGM of the owners corporation on 19 December 2017 when they were formally appointed by the owners corporation (of the residential strata plan) to carry out building management services at Skypoint Towers (at [386], [389]);

   3. (3)

      there was no agreement between Prestige Strata, the interim strata manager, and On Call Strata Services for the provision of building services by On Call Strata Services at Skypoint Towers, and the applicant knew no such agreement existed: at [400];

   4. (4)

      the text messages between the applicant and Mr Yassine on 11 December 2017 and the days following indicated that both the applicant and Mr Yassine were knowingly working together in preparing material to be put before the Court which was misleading: at [405]; and

   5. (5)

      the draft letter prepared by Mr Yassine (on 11 December 2017), that was “cut and pasted” by Ms Lane into a letter on the Prestige Strata letterhead and which noted that On Call Strata Services had been appointed to the provide “management / concierge and security”, did not represent the true position and was misleading because Prestige Strata did not appoint On Call Strata, nor did they have authority to do so. The applicant knew there was no arrangement in place between Prestige Strata and himself, or On Call Strata Services, for the provision of “building management / concierge and security” and knew the representation and the letter from Prestige Strata that he did so, was false: at [406].

5. [115]

   Mr Ramadan’s February 2018 letters: The applicant’s evidence was not accepted that the letters authored by Mr Ramadan dated 14 and 24 February 2018 reflected the relationship between the applicant and On Call Strata Services, and that the structure in place was that Mr Ramadan and/or Mr Abbas had the power to terminate his employment contract and the power to surrender an asserted agreement for the provision of building management services by On Call Strata Services to the owners corporation of Skypoint Towers at [422].

6. [116]

   Further, the applicant’s evidence that he accepted, understood and did not challenge Mr Ramadan’s purported decision to not simply dismiss him as an employee but to approach the owners corporation to withdraw On Call Strata Services from what would otherwise have been a lucrative contract, as simply within Mr Ramadan’s discretion, was implausible: at [423].

7. [117]

   The “proposal document”: There is nothing in the “proposal document”, relied on by the applicant as the foundation of the contractual relationship between On Call Strata Services and the applicant, that appears to relate to the terms of any engagement of the applicant as an employee of On Call Strata Services to undertake building management services or concierge services “24/7”: at [426].

8. [118]

   The identification and presentation of the proposal document by the applicant as an employment agreement between the applicant and On Call Strata Services entered into in August 2017 for the personal performance of building services, concierge services and security services were misleading, the production of that document by the applicant to the Court was intentionally misleading, and the applicant, in doing so, knowingly intended to pervert the course of justice: at [428].

9. [119]

   The applicant’s belief: Rejecting the applicant’s evidence relating to counts 1 and 2, the trial judge found that:

   1. (1)

      the applicant did not hold a belief that in performing building management services at Skypoint Towers he acted under the guidance and approval of Mr Madsen and believed that he did so with the authority of the receivers (at [429]);

   2. (2)

      the applicant, at all times, maintained control of On Call Strata Services (at [430]), he knew that his representation that he held an employment agreement with On Call Strata Services for the provision of building services was false, and also knew when he made a representation that he had no control over the termination of his employment contract, that such representation was false (at [432]); and

   3. (3)

      the possibility that the applicant had a belief that he held the agreement he asserted in his 11 December affidavit and asserted in the two bail applications before the Burwood Local Court on 14 December 2017 and 7 March 2018, was excluded beyond reasonable doubt (at [436]).

10. [120]

    Rejecting the applicant’s evidence relating to count 3, the trial judge found (at [437]-[438]) that:

    1. (1)

       the two letters authored by Mr Ramadan were false, and the applicant knew were false;

    2. (2)

       the representation that the proposal document was a signed employment agreement between the accused and On Call Strata Services was false, and the accused knew it was not an employment agreement as he had maintained; and

    3. (3)

       in presenting the two letters and the proposal document to the Burwood Local Court on 7 March 2018, the applicant intended to pervert the course of justice.

11. [121]

    The trial judge’s principal conclusions, leading to the findings that the applicant was guilty on each count, are encapsulated in the summary findings in Part E of the verdict judgment (at [451]-[456]) which are reproduced in full below:

12. [122]

    The following amended grounds were relied upon (adopting the numbering in the applicant’s written submissions):

13. [123]

    It is appropriate first to deal with the application to rely upon fresh and new evidence on appeal, as ground 3 contends that the absence of this evidence has caused a miscarriage of justice.

Ground 3 – rulings on fresh and new evidence on appeal

1. [124]

   There is a distinction to be made between “fresh” evidence and “new” evidence. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence: R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] (Kirby J).

2. [125]

   The documentary material sought to be relied upon by the applicant fell into six categories:

   1. (1)

      documents relating to the financing of the Skypoint Tower project, being Loan Term Sheet from Acuity Funding dated 23 March 2015 (Ex SM-1); loan structure model (Ex SM 2); SC Lowy HK Loan Term Sheet dated 18 April 2016 (Ex SM 3); occupation certificates dated 3 April 2017 and 23 May 2017, and letter to Credit Connect Capital dated 7 April 2017 confirming pre-sales in respect of residential and commercial units (Ex SM 4); and, loan performance letter dated 23 April 2017 and email dated 5 January 2017 regarding financing from Mr Ben Madsen of SC Lowy (Ex SM 5).

   2. (2)

      documents relating to the voluntary administration of SET Services and Sydney Project Group, being an Introducer Agreement between Balari Pty Ltd as introducer and the applicant, Sydney Project Group and SET Services as borrowers, and statutory demands dated 29 May 2017 issued by Balari Pty Ltd to SET Services and Sydney Project Group (Ex SM 6); letter of offer from Henry Davis York dated 29 July 2017 and a deed of company arrangement undated (Ex SM 7); a letter of offer from Portcullis Capital for mortgage funding dated September 2017 (Ex SM 8); and, a Form 5011 – Minutes of Meeting for SET Services and Sydney Project Group, dated 22 December 2017 (Ex SM 14);

   3. (3)

      deeds of release dated 2 November 2017 and 15 February 2018 (Ex SM 9);

   4. (4)

      documents relating to mobile phone messages between Mr Madsen and Mr Mehajer, including a WhatsApp message from Mr Madsen (Ex SM 10) and screenshots of Cellebrite digital forensics reports (Ex SM 11);

   5. (5)

      documents relating to Mr Ahmad Gharib, including a photo of a meeting between Mr Gharib and Mr Madsen (Ex SM 12) and an affidavit of Mr Gharib sworn on 24 May 2021 in support of a bail application by the applicant in the District Court of New South Wales (Ex SM 13); and

   6. (6)

      submissions of Mr Michael Finnane QC dated 4 October 2019 in relation to the applicant’s bankruptcy annulment application in the Federal Circuit Court of Australia (Ex SM 15).

3. [126]

   The applicant submitted that the documents in Ex SM 1-5, 7-9, 11, 14 and 15 constituted new evidence, and the documents in Ex SM 6, 10, 12 and 13 constituted fresh evidence.

4. [127]

   In support of this application, the applicant relied upon his unsworn affidavit dated 22 June 2022, which he adopted in his oral evidence-in-chief on the hearing of the appeal. He also relied upon his unsworn affidavit dated 13 July 2022 as a submission. There was brief cross-examination of the applicant by the Crown. The applicant accepted that the WhatsApp message from Mr Madsen (Ex SM10) was available at trial. He did not press the admission of this document as fresh evidence on appeal.

5. [128]

   The Crown objected to the admission of all of the material in items (1) to (6) as evidence on appeal. The Crown relied upon an affidavit of Mr Andrew Metcalfe of 12 July 2022, barrister, who appeared as defence counsel at the applicant’s trial. There was no cross-examination of Mr Metcalfe.

6. [129]

   In MRW v R [2011] NSWCCA 260 at [46], Bathurst CJ identified three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence:

7. [130]

   The third proposition in MRW v R expressed in terms of a “significant possibility” is derived from the formulation of Mason and Deane JJ in Gallagher v The Queen (1986) 160 CLR 392 at 402; [1986] HCA 26, with which Gibbs CJ at 399 and Dawson J at 421 substantially agreed. The ultimate question for an appellate court is whether there has been a miscarriage of justice at the trial: at 402.

8. [131]

   As to new evidence, it was stated in Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [434] (Bathurst CJ, R A Hulme and Beech-Jones JJ):

9. [132]

   Applying these principles, all of the material in items (1) to (6) is inadmissible on appeal.

10. [133]

    The documents in item (1) Ex SM 1-5, item (2) Ex SM 7-8, item (3) Ex SM 9, item (4) Ex SM 11, and item (6) Ex SM 15 all constitute new evidence, not fresh evidence. The applicant accepted in his written submissions (par 3.6) that these documents were “available at the trial” and said that “counsel or the [applicant] decided to not tender this material”. The unchallenged evidence of defence counsel is that during the course of the trial the applicant provided a number of documents to his instructing solicitors, that he reviewed each document that was provided to him, and made a forensic judgment as to whether to use that document in the trial, and if he decided to use it, he also made a forensic judgment as to how he would use the document (Metcalfe affidavit, par [10]).

11. [134]

    As to item 5, Ex SM 12, the applicant accepted at [79] of his 21 June 2022 affidavit that the photo of a meeting between Mr Gharib and Mr Madsen was available during the trial. Defence counsel confirmed at [15]-[16] of his affidavit that he was provided this photograph by the applicant on 29 June 2020 and determined there was no forensic utility in adducing it at trial. This document is new evidence, not fresh evidence.

12. [135]

    As to item (5) Ex SM 13, as appears from the cover page of the affidavit of Mr Gharib dated 24 May 2021, this affidavit was sworn in connection with a bail application made by the applicant in the District Court. The applicant sought to rely upon the two annexures to this affidavit. These documents are not new or fresh evidence; these annexures relate to insurance cover for the Skypoint Towers development and were in evidence at trial as part of Ex 1 tendered by the Crown, and Ex L tendered by the defence respectively.

13. [136]

    None of the material sought to be relied upon by the applicant as new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that the applicant was innocent or that his guilt was not established beyond reasonable doubt: Xie v R at [434].

14. [137]

    As to item (2) Ex SM 6, accepting that the content of the statutory demands issued to the applicant’s companies in late May 2017 (but not the fact of service) is fresh evidence, there is no evidentiary foundation in the material before this Court for the applicant’s submission that Mr Gammel and Mr Madsen were aware that the statutory demands were not bona fide, such that an attack on their credit as Crown witnesses could have been made on that basis at trial.

15. [138]

    As to item (2) Ex SM 14, accepting that the Form 5011 minutes of meeting of creditors of Sydney Project Group and SET Services is fresh evidence, as stated in the applicant’s affidavit (at par [81]) (although this is inconsistent with his written submissions at par [3.6(i)], p.20), again, there is no evidentiary foundation in the material before this Court for the applicant’s submission that these minutes show that two Crown witnesses, Mr Madsen and Mr Gammel, “had a motive to go against me” because there was “a significant amount of money that was on the line” as at 17 December 2017. Nor is there evidence that the applicant was unaware at trial of the approximate value of the unsold apartments and units when the receivers retired on 22 December 2017.

16. [139]

    The applicant has not established that any of these documents in Ex SM 6 and Ex SM 14 gives rise to a significant possibility that the tribunal of fact acting reasonably would have acquitted the applicant: MRW v R at [46].

17. [140]

    In these circumstances, the contention in ground 3 that the absence of the new and fresh evidence has caused a miscarriage of justice must be rejected.

18. [141]

    After the Court reserved judgment, the applicant sought leave by letter dated 25 October 2022 to rely upon his unsworn affidavit dated 24 October 2022 insofar as the applicant sought to tender Ex SM 6 concerning the statutory demands issued by Balari Pty Ltd. The Crown objected to leave being given.

19. [142]

    No sufficient reason has been advanced by the applicant to permit reopening of his appeal to rely upon Ex SM 6 as fresh evidence on appeal, more than three months after the conclusion of the oral hearing. In any event, treating the applicant’s unsworn affidavit as a submission, nothing in pars [4]-[7] of the unsworn affidavit advances the applicant’s argument in relation to Ex SM 6. The applicant says that he has made “some very serious allegations” about Mr Madsen and Balari Pty Ltd, that his trustee in bankruptcy advised him on or about 12 October 2022 that he is not in a position to comment on the “Balari matter”, and had these serious allegations been untrue, the “Crown, trustee, Balari and Mr Madsen would no doubt have reported me to the authorities and /or the Court”. This submission goes nowhere; whether or not the Crown, Mr Madsen or Balari Pty Ltd have made complaint “to the authorities and /or the Court” about the truthfulness of the applicant’s allegations, does not establish the factual assertions contained in the applicant’s allegations about the statutory demands issued by Balari Pty Ltd.

Ground 1 – Excessive intervention by trial judge caused a miscarriage of justice

1. [143]

   The applicant gave evidence over five days: 11, 12, 13, 14 and 17 August 2020. The applicant submits that the judicial questioning during his evidence-in-chief and cross-examination resulted in a miscarriage of justice because the intervention by the trial judge was excessive and prevented him from properly presenting his case. The applicant says that the line of questions was not to elucidate any particular topic or issue, and the excessive intervention by the judge laid a platform for the Crown to question the applicant. The applicant complained that other witnesses were not exposed to any intervention and/or line of questioning to the extent experienced by the applicant, with specific reference to Ms Lane, a witness called by the Crown. The applicant also submits that the trial judge was not impartial in his delivery of the judgment because extracts of the trial transcript referred to in the verdict judgment were questions that his Honour had asked the applicant.

2. [144]

   In Ellis v R [2015] NSWCCA 262 at [65], Bathurst CJ, R A Hulme and Garling JJ referred to R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 at [38], where Kourakis CJ stated three ways in which a judge’s intervention may be excessive and lead to a miscarriage of justice:

3. [145]

   In this case, the applicant relies upon each of these grounds.

4. [146]

   The authorities recognise that greater latitude should be afforded to a judge sitting alone in terms of the limits of questioning of a witness: R v Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24 at [35]. The rationale for such latitude was confirmed in R v Esposito (1998) 45 NSWLR 442 at 470 (a criminal trial involving a jury), quoting Kirby ACJ in Galea v Galea (1990) 19 NSWLR 263 at 281, when contrasting the position of a judge in a civil trial, to a criminal trial involving a jury:

5. [147]

   The principles stated by Kirby ACJ in Galea v Galea at 281-282 are conveniently summarised in FB v R; R v FB [2011] NSWCCA 217 at [91] (Whealy JA, Buddin and Harrison JJ agreeing):

6. [148]

   In R v Esposito at 472, Wood CJ at CL said of a criminal trial involving a jury:

7. [149]

   In R v Thompson at [38], Ipp AJA said of the reference by Wood CJ in CL to “treading on thin ice”:

8. [150]

   In FB v R; R v FB at [97], a case involving a judge alone trial, after referring to the observations of Ipp AJA in Thompson, Whealy JA said that the circumstances in which a trial judge may legitimately intervene in a criminal trial involving a judge alone are wide:

9. [151]

   It is of assistance to place the judge’s questioning of the applicant in context. The trial involved some factual complexity as to the applicant’s corporate structures and dealings. Having read the transcript of the applicant’s evidence, it is apparent that the judge fairly endeavoured by his questions to understand the defence case.

10. [152]

    On day 16 of the trial, being the first day the applicant was giving evidence in chief, the judge asked questions concerning the basis for the applicant’s belief that he was the building manager in the period after receivers were appointed. Defence counsel indicated that he was “just stepping through all these questions that your Honour has [asked] in a very measured way”. This response recognised that no complaint was made by defence counsel in relation to these questions by the judge.

11. [153]

    Also on day 16, the trial judge asked the applicant whether there was any correspondence or any other material that related to the applicant’s evidence that it was agreed amongst all parties that he was going to be the building manager, and then enquired of defence counsel “or is that going to be led?”. Defence counsel responded that it would be led, and the judge stated that he would leave it to defence counsel. The applicant submits that the trial judge’s questioning should have stopped at this point, and that the degree of intervention intensified thereafter. That “line in the sand” submission cannot be accepted. Whether the point of unfairness has been reached must be determined in the context of the whole trial and the number, length, terms and circumstances of the interventions of the trial judge: Galea at 281-282.

12. [154]

    The judge also asked questions on day 16 of the trial regarding the applicant’s relationship with the On Call entities, there being some inconsistency in the defence case as to who had appointed On Call Strata Services as the interim building manager. Those questions included:

13. [155]

    No complaint is made in relation to these questions.

14. [156]

    The applicant’s first complaint relates to a subsequent lengthy sequence of questions during the applicant’s evidence-in-chief on day 16 of the trial. The questions were directed to the issue of whether the applicant had asked Mr Ramadan to write the 7 December letter attached to the applicant’s 11 December 2017 affidavit. The applicant responded that he did ask for an “employment” letter. The judge asked whether the applicant told Mr Ramadan what to put in the letter and why Mr Ramadan would have made certain statements in the letter. The applicant responded that he did not, that he assumed “it’s a standard letter … to myself”, and that he could not comment on why Mr Ramadan had included his mobile phone number in the letter.

15. [157]

    There was no objection by the defence counsel to this sequence of questions. Rather, a discussion ensued between defence counsel and the trial judge concerning the matters raised by the judge with the applicant and what inference might be drawn from the 7 December letter. Defence counsel foreshadowed the submission that would be made: the letter was a fairly standard form of business letter, whilst also acknowledging the “oddity” in the letter, being the reference to the applicant’s position being “overturned” if he breached any of the terms and conditions in the “product disclosure”.

16. [158]

    Prior to the hearing adjourning on day 16, the judge returned to Mr Ramadan’s 7 December letter and the reference to the applicant’s position being “overturned” if he breached any of the terms and conditions in the “product disclosure”, asking the following questions:

17. [159]

    The judge’s questions on this issue were appropriately directed to the circumstances in which the letter was prepared by Mr Ramadan, who the applicant described as a “family friend”, the applicant’s evidence that the employment letter did not allow for sub-contractors, what was meant by the reference in the letter to the “product disclosure”, and whether the letter represented an arm’s length arrangement between the applicant and On Call Strata Services.

18. [160]

    The applicant submits, by reference to Tarrant v R [2018] NSWCCA 21 at [67]-[72], that the judge’s questioning stepped beyond the role of an impartial arbiter of facts. That submission must be rejected. The judge’s questions do not suggest that his Honour had prejudged the issues. The judge was endeavouring to clarify issues and obtain information to resolve issues, including the “oddity” of certain statements in the letter, which was acknowledged by defence counsel. The questions did not interfere with the presentation of the defence case.

19. [161]

    The second complaint relates to questions asked by the trial judge on day 17 of the trial, again during the applicant’s evidence in chief, concerning the “I am a fighter” email sent by the applicant to his accountant, Mr Boutros. The judge asked the following questions:

20. [162]

    The applicant’s email was relevant to whether On Call Strata Services was controlled by the applicant or an arm’s length entity controlled by Mr Ramadan. The judge appropriately raised with the applicant the nature of his email to Mr Boutros and gave him the opportunity to clarify the language used, which asserted that the applicant had been “rewarded” (sic) the contract. Contrary to the applicant’s submissions, his Honour’s questions did not reflect any prejudgment, nor did they interfere with the presentation of the defence case.

21. [163]

    The third complaint relates to a lengthy sequence of questions by the trial judge on day 20 of the trial, towards the end of cross-examination of the applicant. As the trial judge noted (at [320]), it was the defence case that:

22. [164]

    The judge’s questions in this sequence were directed to the issue of the agreement appointing the applicant as an employee of On Call Strata Services, and Mr Ramadan’s letter of 14 February 2018. On two occasions, defence counsel objected to the form of the judge’s questions; one objection related to a matter of timing; the other objection related to an incorrect reference by the judge to the “executive committee” in Mr Ramadan’s 14 February letter. On each occasion the judge reframed the question in a manner not objected to by defence counsel.

23. [165]

    In response to the judge’s questioning, the applicant gave evidence that Mr Abbas and Mr Ramadan were the persons who would make the decision on behalf of On Call Strata Services to seek out the executive committee of the residential strata plan to hold an extraordinary meeting to appoint a new building manager, if the applicant could not undertake the work. The applicant said that “they [being Mr Abbas and Mr Ramadan] were only doing this for myself”, that “[i]t wasn’t … a normal company that I was an employee for, they wouldn’t cancel the contract”, and “[t]hey didn’t want to run a bar of it”.

24. [166]

    None of these questions asked by the trial judge up to this point in this sequence were inappropriate.

25. [167]

    The applicant’s complaint focuses on the judge’s final three questions in this sequence which are reproduced below:

26. [168]

    The first question by the judge suggesting that Mr Ramadan’s letter of 14 February did not make sense, was directed to the issue of why On Call Strata Services would relinquish a valuable contract if the applicant were in custody; the context of this question was that the applicant had agreed that the contract was a “substantial” one, at $300,000. The second question sought clarification of the applicant’s evidence that Mr Ramadan and Mr Abbas could terminate the agreement between On Call Strata Services and the owners corporation of Skypoint Towers by calling an extraordinary meeting of the owners corporation, if the applicant could not undertake the work. The judge fairly raised with the applicant that the alleged contract was a valuable one ($300,000) and persons other than the applicant, such as Ms Siaflina, could have performed the duties such as, staffing the concierge desk, attending to maintenance problems, or dealing with resident’s requests when locked out, if the applicant was unavailable.

27. [169]

    The lack of clarification and the applicant’s answer that the agreement “sounds silly on the face of it”, invited the issue raised by the third question, namely, whether the 14 February letter was a “fiction” and that the applicant knew this.

28. [170]

    As noted at [108] above, defence counsel had already put to the applicant on day 17 of the trial the Crown case that Mr Ramadan’s 14 February letter was “false” and a “contrivance”, which the applicant denied. The relevant passage of the applicant’s evidence in chief is reproduced below:

29. [171]

    It can be inferred that defence counsel made a considered forensic decision not to object to the trial judge’s final three questions of the applicant, as the defence had already introduced this issue in the applicant’s evidence in chief. The judge’s final three questions in this sequence sought to clarify issues and seek information to resolve issues, specifically why On Call Strata Services would relinquish a valuable contract if the applicant remained in custody, notwithstanding that there were other people to perform the contract such as Ms Siaflina.

30. [172]

    The applicant submits that the judge descended into the arena and took over the prosecution case. This ignores the timing and context of the judge’s questions, relevantly, the questions were asked towards the end of the cross-examination of the applicant and after the issue concerning the genuineness of the 14 February letter had already been introduced by the defence case. It was entirely appropriate for the judge to raise this issue with the applicant and afford him the opportunity to explain, especially given the applicant’s lack of clarification about the “agreement” and given the applicant’s evidence that “it sounds silly on the face of it”.

31. [173]

    The questioning did not unfairly undermine the proper presentation of the defence case; as noted, defence counsel had already introduced this issue during the applicant’s evidence in chief. Nor did the judge take over the prosecution case; the questions were asked towards the end of cross-examination. Accepting the need for caution in judicial questioning, even in a judge alone trial, given that the demeanour of the witness is apt to be very different when questioned by the judge from what it is when questioned by counsel (Masters v R at [62(b)]), we do not consider that the trial judge’s concluding three questions of the applicant compromised the judge’s advantage in objectively evaluating the evidence from a detached distance: R v T, WA at [38].

32. [174]

    Even if it be considered that his Honour should not have put to the applicant the ultimate proposition in the third question that he knew that the 14 February letter was a fiction, and this question should have been left to the prosecution, it does not follow in the context of the whole of the trial that this single question by the judge towards the end of cross-examination of the applicant on the fifth day of giving evidence, to which no objection was taken by defence counsel, created a real danger that the trial was unfair.

33. [175]

    The applicant’s complaint contrasting the trial judge’s questioning of the applicant with that by the judge during evidence given by Ms Lane goes nowhere. As the Crown correctly submits, the extracts of questions selected by the applicant in his submissions do not relevantly bear upon whether there was excessive intervention by the trial judge in the evidence of the applicant.

34. [176]

    Nor is there any merit in the applicant’s submission that the verdict judgment was not impartial because it contained extracts of the transcript containing questions asked by the judge of the applicant. Insofar as the verdict judgment included references to the judge’s own questioning, such as (at [420]), the applicant’s answers to the first and second final questions in the sequence set out at [167] above, no criticism can be made of his Honour referring to relevant parts of the applicant’s evidence concerning the 14 February letter.

35. [177]

    One further matter should be mentioned. The finding by his Honour (at [422]-[423]) that the February 2018 letters authored by Mr Ramadan did not reflect the relationship between the applicant and On Call Strata Services and that the structure put in place was that Mr Ramadan and Mr Abbas had the power to terminate the alleged agreement between the applicant and On Call Strata Services, was based on the judge’s rejection of the applicant’s evidence in chief that the letters were not a “contrivance”, to which his Honour expressly referred at [417]. Insofar as the judge described the applicant’s evidence on this issue as having been given in cross-examination, that was an immaterial mistake in a lengthy judgment.

36. [178]

    The applicant also sought leave by letter dated 25 October 2022 to rely upon pars [8]-[13] of his unsworn affidavit dated 24 October 2022 by way of reopening his submissions in support of ground 1. Again, the Crown objected to leave being given.

37. [179]

    No sufficient reason has been advanced by the applicant to permit reopening of his appeal on ground 1, more than three months after the conclusion of the oral hearing. In any event, the applicant’s further submissions in support of ground 1 do not establish excessive judicial questioning by the trial judge.

38. [180]

    First, the applicant complained about a sequence of questions during his evidence in chief on day 17 of the trial just prior to the luncheon adjournment. After defence counsel had led evidence concerning the applicant’s 11 December 2017 affidavit, the trial judge asked questions of the applicant directed to clarifying matters stated in the applicant’s affidavit. There was no objection by defence counsel. Indeed, defence counsel took the opportunity, during the judge’s questions, to ask further questions of the applicant on the topic of who held the wages books for the persons employed by On Call Strata Services, and after the luncheon adjournment asked further questions of the applicant relating to the December affidavit. The judge’s questions were not excessive and did not prevent defence counsel from properly presenting the applicant’s case.

39. [181]

    Second, the applicant complained about one question by the trial judge during Mr Madsen’s cross-examination on day 18 of the trial. Mr Madsen had earlier said on day 18, concerning a discussion with the applicant in relation to proposing a company to perform services:

40. [182]

    After Mr Madsen later answered a question about whether he had proposed to the applicant that Mr Abbas be director of On Call Strata Services, the trial judge asked Mr Madsen if he had said “earlier that there was another matter and that was that the company had to be one that was already in business?”. Mr Madsen answered “Correct.” The applicant complained that his Honour “returns Mr Madsen to the correct path” and that Mr Madsen corrected himself despite the emails in Ex K not saying that the new entity had to be “already in business”. This complaint is without merit. There was nothing inappropriate in the trial judge seeking clarification as to whether the witness had earlier given evidence on a particular topic.

41. [183]

    Ground 1 has not been made out.

Ground 2 – The trial judge failed to follow his general directions of law

1. [184]

   No complaint is made in relation to the general directions of law recorded by the trial judge in the verdict judgment. This ground is directed to questions asked by the trial judge of the applicant concerning the appointment of Mr Ahmed Jaghbir as a director of On Call Strata Services and Skypoint Strata Services on 1 October 2017, not, as suggested by the Crown, questions concerning Mr Ramadan. The questions in respect of which complaint is made do not constitute directions or rulings on a question of law.

2. [185]

   The applicant’s complaint is that the questions reveal that the trial judge was “suspicious” of the applicant for supporting the appointment of a person, who was an electrician as company director. The submission continued that the judge erred in taking that suspicion into account by forming the view that Mr Jaghbir would have been incapable of operating a company because of the absence of any formal qualifications.

3. [186]

   This submission mischaracterises the trial judge’s reasons. The judge referred to the applicant’s evidence concerning the appointment of Mr Jaghbir as a director of Skypoint Strata Services and On Call Strata Services in October 2017: at [408]-[409]. Mr Jaghbir was an electrician. The applicant had not seen him for about ten years prior to his appointment as a director. The judge found that ultimately it was Mr Abbas, not Mr Jaghbir, who made the decision about the applicant’s employment with On Call Strata Services: at [412].

4. [187]

   The trial judge did not say or imply that Mr Jaghbir was incapable of acting as a director of On Call Strata Services and Skypoint Strata Services because of the absence of any formal qualifications. His Honour’s point was a different one. It concerned the applicant’s suggestion that On Call Strata Services was at arm’s length from the applicant, in circumstances where Mr Jaghbir was the sole director of On Call Strata Services from 1 October 2017, Mr Abbas having resigned as a director on that date. The judge said of the applicant’s evidence at [423]:

5. [188]

   The “person” referred to by his Honour (at [423]) was Mr Jaghbir. The trial judge did not accept the applicant’s evidence that he divested control of On Call Strata Services and found that he maintained control of that company at all times, given that he had appointed Mr Jaghbir as sole director in circumstances where he had little contact with Mr Jaghbir in the past (he had not seen him for about ten years), and Mr Jaghbir had had little experience in strata management. That finding was well open on the evidence at trial and no reason for doubting that finding has been shown. This ground is rejected.

Ground 4 – The applicant was denied access to his mobile phones

1. [189]

   This ground concerns the disclosure by the prosecution of the contents of the applicant’s mobile phones. That the prosecution has a duty of disclosure is recognised both at common law and by the Criminal Procedure Act 1986 (NSW), ss 61, 62 and 63 and the Director of Public Prosecutions Act 1986 (NSW), s 15A.

2. [190]

   The applicant submits that he was denied “due process and procedural fairness” because he was denied access to his mobile phones being “material evidence, which inevitably impacted upon the outcome of the case”. He says that his mobile phones “may” contain strong and compelling evidence, which would have returned a “not guilty verdict”. He acknowledged that in the “early stages of the trial”, the officer in charge of the investigation provided him with a USB containing what the applicant characterised as “an inadequate and insufficient downloaded version of the phone’s data via the software ‘Cellebrite’”. He asserted that the officer in charge was well-aware that the downloads were not “full and correct”, that not all files would open, and were difficult to navigate.

3. [191]

   The Crown cross-examined the applicant on this issue and relied upon affidavit evidence from Det Sgt Taylor, the officer in charge of the investigation, and Ms Viney, a solicitor from the Office of the Director of Public Prosecutions (NSW). The unchallenged evidence of Det Sgt Taylor established that downloads of the applicant’s mobile phones were provided to the applicant’s legal representatives and to the applicant multiple times, with the last date of service on the applicant personally being 4 June 2020, some 18 days before the first day of the trial (Taylor, par [12]).

4. [192]

   Ms Viney also gave unchallenged evidence of her communications with the applicant personally and later with his legal representatives, which corroborated Det Sgt Taylor’s evidence that the mobile phone information was communicated to the applicant personally and through his legal representatives prior to the trial (Viney, par [9], [21]). Her evidence also confirmed that all reasonable efforts were made by the officer in charge and the Crown to assist the applicant in accessing any possible evidence on mobile phones.

5. [193]

   In cross-examination, the applicant agreed that he was given a USB with downloads of the content of his mobile phones and a copy of the prosecution brief on 4 June 2020. He said that he did not open this material “until during the trial”. He acknowledged this was “[m]y mistake, I accept that”. The applicant’s complaint that the downloads were not provided until the early stages of the trial cannot be accepted. As the applicant acknowledged, he deferred examining the material provided to him “until during the trial”.

6. [194]

   Next, the applicant submits that he was denied access to his “2018 phone”. Detective Sgt Taylor acknowledged that he received numerous requests from the applicant for access to the “2018 phone” and gave evidence of the documentary records which establish that this phone had never been seized by police; it had been returned to the applicant upon his release from custody on 4 April 2018 (Taylor, par [8]). This complaint is misconceived.

7. [195]

   The applicant also submits that both the officer in charge and the Crown refused the applicant’s “extremely reasonable request” to allow him to examine the phones under “police and/or solicitor guard”.

8. [196]

   In response to this complaint, Detective Sgt Taylor gave unchallenged evidence that the decision to not allow the applicant to personally handle the mobile phones was based upon advice from forensic experts to ensure the integrity of those exhibits. The response by the officer in charge to the applicant’s request for physical inspection was appropriate in the circumstances.

9. [197]

   As to the applicant’s asserted difficulties in reviewing the data downloaded from his phones, the affidavit of defence counsel reveals that the applicant was capable of searching through the Cellebrite downloads and producing to his counsel a collation of data he believed was relevant, which he did on 17 August 2020. By way of example, the Crown drew attention to one of those collations that contained the message in Exhibit SM10, which the applicant initially asserted in his submissions (par [3.4], p.29) was only located “after the completion of the trial” as he “was required to scroll through at least 300,000 pages”. The applicant acknowledged in cross-examination that this was incorrect.

10. [198]

    The applicant did not identify any particular message or document said to be on his mobile phones which, together with the evidence at trial, would lead to a conclusion that he was innocent or that his guilt was not established beyond reasonable doubt.

11. [199]

    This ground is rejected as lacking any evidentiary foundation or other basis.

Ground 5 – unreasonable verdict

1. [200]

   Ground 5 contends that the verdicts were unreasonable or otherwise unsupported by the evidence. This is a reference to the first limb of s 6(1) of the Criminal Appeal Act.

2. [201]

   In determining an appeal on an unreasonable verdict ground the approach required to be taken by the Court is exactly the same where the trial has been before a judge alone as where the trial has been by jury: Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221 at [15] (Gageler, Keane, Gordon, Steward and Gleeson JJ). The approach to be taken is in accordance with M v The Queen (1994) 181 CLR 487; [1994] HCA 63, as applied in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ) and [82]-[83] (Gageler J).

3. [202]

   In Dansie at [8]-[9], the joint judgment said that the reasoning in the joint judgment in M requires:

4. [203]

   In performing the function required by M, the joint judgment in Dansie stated at [16] that the reasons of the trial judge must be approached by the court of criminal appeal “with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence”. The joint judgment continued at [16]:

5. [204]

   The same point had earlier been made in Filippou by French CJ, Bell, Keane and Nettle JJ at [12], and by Gageler J at [83], who said:

6. [205]

   In this case, the applicant limited his argument about unreasonableness of the verdicts to particular components of the evidence, and specific findings of fact and aspects of his Honour’s reasons.

7. [206]

   As to the trial judge’s advantage in seeing and hearing the evidence, the joint judgment in Dansie noted at [17] that this “will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial”. Thus, the joint judgment observed at [17]:

8. [207]

   By contrast, in a case like the present, where the testimonial evidence adduced by the prosecution was largely contested and the accused also gave evidence, the advantage enjoyed by the trial judge, having seen and heard the witnesses, is significant.

Consideration

1. [208]

   In accordance with the principles stated above, we have undertaken an independent assessment of the evidence to the extent necessary to engage with the applicant’s argument while adopting, without need for independent assessment, other intermediate findings of fact of the trial judge about which no complaint is made in the appeal: Dansie at [15]. We have kept in mind that in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced: Filippou at [12].

2. [209]

   We note that there is no dispute that the evidence established beyond reasonable doubt the relevant act or conduct of the applicant for the purposes of each offence:

3. [210]

   The applicant’s argument that the verdicts were unreasonable was advanced on two levels. First, the applicant submits that the findings that his affidavit sworn 11 December 2017, statements made on oath on 14 December 2017, and information provided to the Local Court on 7 March 2018 were false, was not supported by the evidence. Second, the applicant submits that there was an insufficient basis for the trial judge to find that he acted with the intent necessary for counts 1, 2 and 3.

4. [211]

   The applicant submits that there is evidence that (a) he provided building management services prior to August 2017, (b) building services were undertaken by Ms Siaflina in August 2017, and (c) he or his entity, On Call Strata Services, continued to provide building management services from August 2017 until his arrest in January 2018.

5. [212]

   Whether the applicant (or Ms Siaflina at his direction) provided any building management services or a free concierge service at Skypoint Towers prior to August 2017 is not the point. To the extent any such services were provided by the applicant or Ms Siaflina, the evidence established that this was without the authority of the receivers and, importantly, the applicant knew that the receivers had not authorised the applicant to provide any such services: see [101]-[102] above.

6. [213]

   The applicant’s contention that On Call Strata Services was the interim building manager was based on his evidence that he had been “awarded” this contract by Mr Madsen and the receiver. As his Honour recorded at [372]:

7. [214]

   The applicant’s evidence was inconsistent with the evidence of Mr Gammel and Mr Madsen. In rejecting the applicant’s evidence his Honour found at [373]:

8. [215]

   His Honour addressed the applicant’s case that building services were undertaken by Ms Siaflina at the applicant’s direction in August 2017 (at [374]-[376]), and relevantly found that that the undertaking of building management services by Ms Siaflina was not authorised by the receivers, and that in cross-examination the applicant said he was aware of the email exchanges involving Ms Siaflina (at [374]). These findings are not in dispute.

9. [216]

   The applicant’s evidence that he believed he “rectified it”, that is, the receivers concern about Ms Siaflina’s unauthorised conduct, was rejected by his Honour at [375]-[376]. It is appropriate to set out these findings in full:

10. [217]

    Given the content of the email exchanges between the receivers and the applicant and also Ms Siaflina (which the applicant accepted in cross-examination he was aware of, as his Honour noted at [374]), the compelling inference is that the applicant knew that the receivers had not authorised Ms Siaflina to undertake such services and that, contrary to his evidence, the applicant had not “rectified it” and was not “led to believe it was rectified”.

11. [218]

    The applicant’s case that On Call Strata Services was reappointed as interim building manager relied on acceptance of the applicant’s evidence that Mr Madsen made that appointment in either meetings or telephone conversations with the applicant on or about 5 October 2017, and that this appointment was confirmed by Mr Madsen in the weeks or days before the applicant swore his 11 December 2017 affidavit: see [98] above. Mr Madsen gave evidence to the contrary, as did Mr Gammel, one of the receivers. Although at one point in his evidence the applicant asserted that he met with Mr Gammel and Mr Madsen to rectify the issue which had arisen in September 2017 and he believed that he had (see [105] above), that evidence was inconsistent with the applicant’s evidence in chief that he did not recall Mr Gammel being present for conversations with Mr Madsen appointing him as interim building manager: see [98] and [102] above.

12. [219]

    His Honour referred to Mr Madsen’s evidence (at [149]-[150]) and rejected the applicant’s conflicting evidence, finding that Mr Madsen was a credible witness (at [375]). His Honour referred to Mr Gammel’s evidence (at [107]-[139]) and also found that Mr Gammel was a credible witness and that given the email exchanges between the receivers and the applicant, the applicant was aware that he had no authority to act as the interim building manager (at [375]). Having discovered that Ms Siaflina was purporting to undertake building management, the receivers acted quickly to appoint the Lefand Group. This was inconsistent with the applicant’s evidence that the issues concerning Ms Siaflina had been rectified following discussion with Mr Madsen. That the receivers appointed the Lefand Group as interim building managers for a fee in September 2017 is strong probative evidence that the applicant was not “reappointed” as building manager for no charge, as he asserted in his evidence.

13. [220]

    His Honour had a significant advantage in seeing and hearing the witnesses give evidence. The evidence of Mr Gammel and Mr Madsen does not contain discrepancies or display inadequacies, nor is their evidence tainted or otherwise lacking in probative force: M at 494. This is not a case where the evidence upon the record itself causes this Court to have a doubt which his Honour ought to have experienced.

14. [221]

    The finding (at [376]) concerning the appointment of the Lefand Group as the interim building managers cannot be seriously disputed, given the oral and documentary evidence of this appointment by the receivers in September 2017: see [15] above. The applicant’s evidence that after a period of a few weeks as interim building manager, Lefand was sacked and On Call Strata Services were retained on an informal basis, is implausible. The asserted sacking of Lefand as building manager is unsupported by any evidence. It is also contradicted by (a) the receivers conduct in continuing to pay Lefand for its services, which is inconsistent with the asserted termination of Lefand’s services, (b) Mr Diab’s evidence that once the Lefand Group was appointed by the receivers, he, on behalf of Sarraf Strata, did not deal with Ms Siaflina or the applicant, he dealt with Mr Bong from Lefand, and (c) Mr Bong’s evidence that he attended at Skypoint Towers on a daily basis to perform the services of interim building manager from 11 September 2017 to 19 February 2018, when another colleague took over: see [50] above.

15. [222]

    The applicant’s evidence that Lefand had been appointed “on paper” but were not acting as building managers and that Mr Madsen told him that Lefand should remain the “face” of the building management, whilst the applicant would still work there, is equally implausible. First, it was the receivers, not Mr Madsen, who appointed the Lefand Group as interim building managers. Second, the applicant’s attribution to Mr Madsen of Lefand’s appointment as the “face” of the building management and “on paper” only, is inconsistent with the formality of the receivers’ appointment of Lefand by a signed written agreement and the evidence of Mr Diab, Mr Iacovou and Mr Bong as to the actual work undertaken by Lefand as interim building manager: see [225] below. Third, there is no evidence that the receivers were dissatisfied with Lefand’s performance as interim building manager such as to give cause for the receivers to “sack” Lefand and to appoint the applicant to perform the work in its place. Fourth, given the formality of the receivers’ appointment of Lefand, it is inconceivable that the receivers would authorise Mr Madsen to informally appoint the applicant as interim building manager, without any written record of such appointment. Fifth, the defence case at trial that, in order to keep the applicant “onside”, Mr Madsen told the applicant that he could undertake the role of building manager (a proposition denied by Mr Madsen), was speculative.

16. [223]

    The evidence that there was no agreement in place for the applicant to perform building management services from August 2017 was addressed by his Honour (at [377]-[380]). The relevant findings included:

17. [224]

    The content of the email communications between the receivers and the applicant to which his Honour had regard (at [378]) have been referred to at [42]-[49], [51], [53]-[55] above. There is no dispute that the applicant received, sent or was otherwise aware of these communications. Given the content of the email exchanges, the compelling inference is that the applicant knew that there was no agreement in place for his performance of building management services from August 2017.

18. [225]

    The applicant’s evidence that he continued to provide building management services from August 2017 was rejected by his Honour (at [381]-[387]), which included the following findings:

19. [226]

    The content of the documentary evidence referred to by his Honour and the “strong” body of evidence that the Lefand Group was carrying out the services of building manager, being the evidence of Mr Diab, Mr Iacovou and Mr Bong, well established that the applicant did not provide building management services from August 2017. Again, this is not a case where upon the record itself the evidence of Mr Gammel, Mr Madsen, Mr Diab, Mr Iacovou or Mr Bong causes this Court to have a doubt which his Honour ought to have experienced.

20. [227]

    The evidence concerning the two February letters authored by Mr Ramadan which were presented by the applicant to the Local Court on 7 March 2018, was addressed by his Honour (at [416]-[421]), who relevantly noted (at [417]):

21. [228]

    In rejecting the applicant’s evidence that the letters authored by Mr Ramadan reflect the relationship between him and On Call Strata Services and that the applicant had no control over any decision made by Mr Ramadan to terminate the agreement in the way Mr Ramadan set out in his letters, his Honour found (at [423]-[425]) that the applicant’s evidence was implausible:

22. [229]

    Having considered the content of the two February letters and the applicant’s evidence concerning his employment relationship with On Call Strata Services, including the circumstances in which he appointed Mr Jaghbir as sole director of that company on 1 October 2017 (see [186]-[188] above), the finding that the applicant’s evidence was implausible was inevitable.

23. [230]

    The evidence concerning the “proposal” document which was presented by the applicant to the Local Court on 7 March 2018, was addressed by his Honour (at [426]-[429]), who relevantly found:

24. [231]

    Again, having considered the content of the proposal document, in particular page 11 headed “Confirmation of Acceptance” dated “19 August 2018” and the applicant’s evidence concerning this document, including the implausibility that the document was mistakenly dated 19 August 2018 by a person other than the applicant, the finding that the document did not represent an employment agreement that the applicant had entered into with On Call Strata Services was inevitable.

25. [232]

    In the circumstances, the applicant’s submission that the evidence did not establish beyond reasonable doubt that the applicant’s affidavit of 11 December 2017, his statements on oath on 14 December 2017 and the information he provided to the Local Court on 7 March 2018 were false, cannot be accepted.

26. [233]

    It is not in dispute that the trial judge correctly stated the mental element of each offence, relevantly:

27. [234]

    The applicant submits that even if the evidence established that there was no agreement in place for the provision of building management services by On Call Strata Services, or the applicant personally, there was insufficient evidence that the applicant acted with the necessary intent for each count and corroboration for count 2. That is, the evidence adduced by the Crown did not exclude the possibility that the applicant believed there was such an agreement in place.

28. [235]

    In support of this submission the applicant essentially relied upon three matters. First, the applicant pointed to several emails and documents which were said to reflect and / or support his asserted belief.

29. [236]

    Second, the applicant says that evidence contradictory to that of the applicant, specifically Mr Madsen and Ms Lane, should not have been accepted by the trial judge.

30. [237]

    Third, the applicant relies upon his asserted lack of knowledge of the Lefand Group and their role as building manager from 6 September 2017.

31. [238]

    It will be apparent that much of the findings and reasons of his Honour relating to the applicant’s belief have already been referred to above, when dealing with the applicant’s challenge to the falsity findings concerning the applicant’s affidavit, his statements on oath and the information provided to the Local Court.

32. [239]

    The two emails primarily relied upon by the applicant as supporting his belief that On Call Strata Services had been appointed interim building manager are:

    1. (1)

       Exhibit F, the “I’m a fighter” email, sent by the applicant to his accountant, Mr Boutros, on 22 August 2017 (see [41] above); and

    2. (2)

       Exhibit J, the email sent by the applicant to Mr Sarraf on 5 October 2017 (see [56] above).

33. [240]

    The applicant’s evidence concerning the 22 August email was referred to by his Honour (at [287]-[288]):

34. [241]

    The applicant’s evidence concerning the 5 October 2017 email was referred to by his Honour at [352] and [382], who noted that in closing submissions, defence counsel pointed to the applicant’s reference in that email to concierge, security and building management being returned to him “next week”, that it was the applicant’s case that these communications indicated there was an arrangement in place for the provision of building management services by the applicant “all the way along”, and that defence counsel submitted that the exchange indicates that the applicant had the belief that Mr Sarraf, the lender and the receiver were “on board” and that his proposal for appointment at the AGM would be successful.

35. [242]

    As the Crown submits, both emails were sent some months before the periods relevant to the charges. The first email was overtaken and directly contradicted by the subsequent communications which are relevantly referred to at [42]-[49], [51], [53]-[55] above. Specifically, after being informed by Mr Gammel by email on 31 August 2017 that Ms Siaflina’s conduct was unauthorised, that she had not been engaged by the receivers or the strata manager and had not been granted access to the premises, the applicant emailed the receivers and Mr Madsen on 11 September 2017 making a “kind request” that On Call Strata Services be reappointed building managers. By his email, the applicant acknowledged that the receivers had not appointed the applicant or his entities as interim building manager and that it was the receivers who had responsibility to make such appointment. That position remained unchanged: first, having appointed the Lefand Group as interim building managers on 6 September 2017, Mr Hocking on behalf of the receivers sent an email to Ms Siaflina and Mr Sarraf on 12 September 2017 stating that the receiver’s position in relation to the appointment of “another building manager on an interim basis remains unchanged”; second, on 20 September 2017, Mr Gammel responded to the applicant by email stating that the receiver’s position in relation to building management had been made clear.

36. [243]

    The 5 October 2017 email relied upon by the applicant was not a communication with the receivers. This email contained the applicant’s self-serving assertion to Mr Sarraf that the “concierge, security and building manager will be returned to us next week”. Mr Madsen’s disputed this alleged conversation with the applicant. His Honour accepted Mr Madsen’s evidence over the applicant’s evidence: at [375]. The probative force of Mr Madsen’s evidence is strengthened by two matters. One is that it is consistent with his evidence that he had instructed the receivers on about 11 September 2017 to inform the applicant that his entities would not be appointed as building managers. The other is that the receivers acted consistently with this instruction by their subsequent emails of 12 and 20 September 2017 to Ms Siaflina and the applicant respectively. The applicant’s argument did not identify any cogent reason why Mr Madsen would have changed his position on behalf of the lenders within a short period of about three weeks, in circumstances where the Lefand Group had been appointed interim building managers for a fee. Moreover, for the reasons already given at [213]-[215] above, this is not a case where upon the record itself the evidence of Mr Madsen causes this Court to have a doubt which his Honour ought to have experienced.

37. [244]

    Further, and inconsistently with the applicant’s asserted belief deposed to at [4] in his 11 December 2017 affidavit that he had been awarded the contract for “… security” at Skypoint Towers, the applicant emailed Mr Madsen on 27 October 2017, stating:

38. [245]

    Not only did the applicant omit any mention in this email of his subsequent claim in [4] of his 11 December affidavit that he had been awarded the contract for “security” at Skypoint Towers, but annexure A to this affidavit, being the 7 December letter from Mr Ramadan to the applicant, did not refer to any appointment to provide “security” services: see [79] above.

39. [246]

    The applicant also relied upon Mr Sarraf’s 31 August 2017 email to the receivers, confirming that Sarraf Strata had not approved any contractor onsite. The contents of this email do not assist the applicant’s asserted belief. First, the applicant was not a party to the email, and in any event, Mr Sarraf confirmed to the receivers that Sarraf Strata had not appointed any contractor onsite. Second, any assumption that the applicant otherwise had as to a potential interim role was plainly rejected in the subsequent correspondence with the receivers in September 2017 to which reference has already been made, and the receivers’ appointment of Lefand Group on 6 September 2017 as interim building manager. As his Honour correctly found at [385]:

40. [247]

    Next, the applicant relied upon his 11 December 2017 “Maniac Urgent Matters” email to Mr Gammel, copied to Mr Madsen, prior to the swearing of his affidavit later that day, and Mr Madsen’s response, set out at [62]-[63] above. These emails and the evidence of Mr Gammel, Mr Madsen and the applicant were referred to by his Honour in some detail (at [151]-[157] and [325]-[326]).

41. [248]

    The defence case was that even if the evidence established that the applicant did not hold any formal agreement to provide building management services, the Crown could not exclude the possibility that the applicant held a belief that he was authorised to act to provide building management services, concierge services and security services. In rejecting the defence case (at [390]-[392]), his Honour’s reasons relevantly included:

42. [249]

    As the Crown submits, the applicant’s reliance on this email correspondence appears to be based upon the apparent illogicality of him seeking the confirmation from Mr Gammel, if he did not have a belief that he in fact held the position of building manager. His Honour addressed that contention (at [395]), correctly noting that when drawing inferences as to the applicant’s state of mind the “Maniac Urgent Matters” email should not be looked at in isolation, and that it is necessary to consider the whole of the evidence as to the existence of the alleged agreement to provide interim building management services and the evidence of what the applicant would have known about whether such an agreement was in existence. After finding that the failure of Mr Madsen and Mr Gammel to provide a letter of confirmation, consistent with their evidence, was because there was no such agreement, his Honour continued (at [395]):

43. [250]

    We are satisfied that the totality of the evidence to which his Honour referred (at [395]) well supported his reasoning and conclusion that the Crown had excluded beyond reasonable doubt the possibility that the applicant believed an agreement was in place from August 2017 for On Call Strata Services to provide building management and concierge services at Skypoint Towers.

44. [251]

    The applicant also referred to two documents, which he misdescribed as Exhibits 6 and 7, but the Crown correctly identified as Exhibit G (Residential Manual) and Exhibit 14 (photographs of flyers of the Skypoint Towers building) as supporting his asserted belief.

45. [252]

    As noted, the Residential Manual contained information with respect to building management which was provided by the applicant to the builder for inclusion in the manual in April 2017, prior to the appointment of receivers. His Honour correctly found that the manual was overtaken by subsequent events, noting at [380]:

46. [253]

    As to the “flyers”, the applicant gave evidence that he believed the “flyers” had been placed in the lobby of Skypoint Towers in August 2017. Mr Gammel’s evidence was that a member of his team had seen the flyers in the lift, alerting the receivers to the presence of Ms Siaflina and On Call Strata providing concierge services. This led to the receivers’ emails to the applicant and Ms Siaflina in August and September 2017 informing them that Ms Siaflina’s conduct was unauthorised, that she was not engaged by the receivers or the strata manager, and that she had not been granted access to the premises.

47. [254]

    Neither the content of the Residential Manual nor the flyers placed in the lobby of Skypoint Towers in August 2017 provide any support for the applicant’s asserted belief that he or one of his entities was the building manager at the time of his 11 December affidavit, and his Court appearances on 14 December 2017 and 7 March 2018.

48. [255]

    Insofar as the applicant submitted that the documents referred to as deeds of release 1 and 2 (see [125(3)] above) support his asserted belief that he or one of his entities was the interim building manager, the premise of that submission was not established given that the application to admit these documents as “new evidence” on appeal has been unsuccessful. In any event, the contents of the deeds of release do not support the applicant’s asserted belief. To the contrary, the definition of the “Mehajer Allegations” in both deeds, relevantly, included:

49. [256]

    In these circumstances, it is unsurprising that the applicant did not seek to tender these deeds at trial.

50. [257]

    The applicant submits that the trial judge erred in his findings in relation to Ms Lane’s evidence. After referring to the evidence of Ms Lane (at [172]-[198]), and the related evidence of Mr Yassine (at [199]-[247]), his Honour addressed the applicant’s submission that Prestige Strata had authorised On Call Strata Services to perform building management services (at [397]-[406]), finding that there was no agreement between Prestige Strata and On Call Strata Services for the provision of building services by On Call Strata Services at Skypoint Towers and that the applicant knew no such agreement existed (at [400]).

51. [258]

    That finding was based upon a combination of facts which his Honour found had been proved, together with the evidence of Ms Lane, which his Honour accepted (at [400]), including that she could not recall writing the email and was “really unsure how [the email] would have been written as such, because one that is not sort of my vocabulary, how I would write emails, and two, I don’t ever remember seeing this chain of emails or anything associated” (at [191]).

52. [259]

    Given its importance, it is appropriate to reproduce his Honour’s reasons for accepting Ms Lane’s evidence over Mr Yassine’s evidence (at [404]-[406]):

53. [260]

    His Honour had a significant advantage in assessing the competing and conflicting evidence of Ms Lane and Mr Yassine. The finding that the evidence of Mr Yassine was unreliable was well open on the evidence. The compelling inference is that Mr Yassine and Ms Lane both knew the representation in the letter drafted by Mr Yassine for Ms Lane to sign was false. The evidence upon the record itself does not cause this Court to have a doubt which his Honour ought to have experienced when accepting Ms Lane’s evidence.

54. [261]

    The applicant also submits that Mr Madsen gave contradictory evidence that “Sarraf Strata had control” to appoint the building manager and that the applicant had “taken advice of Madsen or Sarraf consistent with his evidence”. This is a misreading of the evidence. Mr Madsen’s answer that “Sarraf Strata had control” was in response to a question as to whether he knew if any organisation had been appointed as “project manager”. When the question was corrected by defence counsel as intending to refer to “building manager”, Mr Madsen said that was not “something we dealt with” (emphasis added); plainly, the expression “we” was a reference to the lenders, SC Lowy and LIM. He said that it was a matter the receivers would deal with seeking the instruction of the lenders. Insofar as Mr Madsen said that the power to appoint a building manager would rest with the strata manager, that answer was subsequently qualified by Mr Madsen, who said that the receivers “were the parties … the only parties that had control and ability to...appoint someone to those roles”, being a reference to the roles of interim strata manager and interim building manager.

55. [262]

    His Honour’s finding that it could be inferred that the applicant was made aware of the appointment of the Lefand Group as building managers is contained at [375]-[376] and [386]. The finding at [386] is set out at [225] above. As already indicated, in making that finding, his Honour rejected the applicant’s evidence that the Lefand Group was simply the “face” of the building management at Skypoint Towers, and that the applicant continued to provide building management services with the authority of the financiers and receivers: at [376].

56. [263]

    The applicant submits that, consistent with his evidence at trial, he could not have known who the Lefand Group was because (a) Mr Madsen’s evidence was that he did not immediately know who the Lefand Group was, and (b) not even Prestige Strata were aware who the Lefand Group was, referring to the purported email from Ms Lane to Mr Yassine and the applicant dated 22 December 2017, which is set out at [86] above.

57. [264]

    As to (a), the submission is a gloss on the evidence. Mr Madsen expressly referred to the Lefand Group at [24] of his witness statement (Ex 2). On a fair reading of the cross-examination of Mr Madsen on this topic, it is apparent that there was some confusion on Mr Madsen’s part that the cross-examiner was referring to the strata manager, not the building manager.

58. [265]

    As to (b), putting aside the issue as to the authenticity of this email, which Ms Lane did not recall sending (see [87] above), the submission is a misreading of the email. The reference in the email to the Lefand Group, “not sure if you have hear[d] of them”, is a reference to whether Mr Yassine and the applicant had heard of the Lefand Group.

59. [266]

    The Crown accepts that there was no communication in evidence that the applicant had been told in September 2017 that it was the Lefand Group that had taken over the building management of Skypoint Towers. Nevertheless, there was evidence that supported the inference that the applicant knew in September 2017 that another building manager had been appointed on an interim basis.

60. [267]

    First, in response to the applicant’s “kind request” email of 11 September 2017 to be “reappointed” as building manager, the applicant accepted in cross-examination that he was aware of the emails the receivers sent to Ms Siaflina; relevantly, Mr Hocking on behalf of the receivers sent an email to Ms Siaflina on 12 September 2017 advising that “another building manager” had been appointed on an interim basis: see [53] above.

61. [268]

    Second, the applicant also accepted in cross-examination that there was a period of a “few” weeks when the Lefand Group were interim managers, before asserting that they were sacked and On Call Strata Services were retained on an informal basis: see [102]-[103] and [106] above. This was the context in which the applicant gave evidence, which his Honour rejected, that Mr Madsen said that the Lefand Group should remain because it was the “face” of the building management, but the applicant would still work there. The compelling inference is that the applicant knew in mid-September 2017 that the interim building manager was the Lefand Group.

62. [269]

    Third, and relevantly for count 3, the applicant gave evidence that he received the Prestige Strata email on 22 December 2017 which referred to the appointment of Lefand Group, although as the Crown acknowledged, Ms Lane disputed the authenticity of this email. Whether or not the email was genuine, the applicant was undoubtedly aware by this date that the Lefand Group had been appointed as building manager at the first AGM of the owners corporation held on 19 December 2017.

63. [270]

    Contrary to the applicant’s submission, the evidence well supported the inference that the applicant was made aware of the appointment of the Lefand Group as building managers in September 2017.

64. [271]

    There is no dispute that his Honour correctly proceeded on the basis that the common law rule regarding the need for corroboration of evidence where a person is charged with perjury applied to the statutory offence in s 327 of the Crimes Act: see [37] above. His Honour summarised the components of the evidence which provided corroboration of the falsity of the applicant’s statements on oath on 14 December 2017 (at [364]):

65. [272]

    As noted at [121] above, in his principal conclusions (at [453]-[454]) his Honour identified the evidence which provided corroboration of the falsity of the applicant’s statement on oath that he was “awarded the contract”. First, it is proved by the evidence of Mr Gammel and Mr Madsen. Second, his Honour found that other evidence in the trial provides substantial corroboration to the evidence these two witnesses gave. It is unnecessary to refer again to the evidence summarised by his Honour (at [454]). There is no merit in the applicant’s contention that there was insufficient evidence of corroboration as to the falsity of the applicant’s statement on oath.

66. [273]

    The evidence in support of counts 1, 2 and 3 was overwhelming. In summary, the evidence well established the following.

67. [274]

    First, neither the applicant nor any of his entries including On Call Strata Services had been appointed by either Mr Madsen or the receivers as the building manager of the Skypoint Towers development in August 2017 or any time thereafter, either on an interim basis or at all, and the statements to the contrary in the applicant’s 11 December affidavit and on oath by the applicant in the Local Court were false.

68. [275]

    Second, from at least 12 September 2017, the applicant was aware that another building manager had been appointed for the Skypoint Towers development on an interim basis until the first AGM, and it can be inferred that from about mid-September 2017 the applicant knew that this was the Lefand Group.

69. [276]

    Third, the applicant knew from email exchanges with the receivers in September 2017 that he and his entities including On Call Strata Services were not authorised by the receivers to provide concierge or building management services for the Skypoint Towers development, either with or without charge, and that remained the applicant’s belief at the time of his 11 December 2017 affidavit, his statements on oath in the Local Court on 14 December 2017 and the information provided to the Local Court on 7 March 2018. The applicant also knew that Mr Madsen had not appointed the applicant or any of his entities as the building manager of Skypoint Towers.

70. [277]

    Fourth, at the time of providing information to the Local Court on 7 March 2018, the applicant knew that his entity, Skypoint Strata Services, had not been appointed the building manager of Skypoint Towers at the first AGM of the residential strata plan held on 19 December 2017 or at the adjourned first AGM of the commercial strata plan held on 30 January 2018. The applicant also knew that the February 2018 letters authored by Mr Ramadan and the proposal document provided to the Local Court on 7 March 2017 were false in describing the employment relationship between the applicant and On Call Strata Services.

71. [278]

    Having reviewed the totality of the evidence relating to the applicant’s argument, we are satisfied that the evidence established beyond reasonable doubt the elements of each offence the subject of counts 1, 2 and 3.

Conclusion

1. [279]

   Leave to appeal against conviction is granted in relation to grounds 1, 2, 4 and 5, however, the application in ground 3 to admit fresh or new evidence on appeal is refused. The appeal against conviction is dismissed.

2. [280]

   As indicated, Judge Zahra imposed an aggregate sentence of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 3 months.

3. [281]

   In compliance with the requirement of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), his Honour indicated the sentence he would have imposed for each offence were it not for the imposition of an aggregate sentence. The offences, their maximum penalties, and their indicative sentences were as follows:

Grounds of appeal against sentence

1. [282]

   The applicant relies on five grounds of appeal, which are set out in the applicant’s handwritten submissions on the sentence appeal as follows:

2. [283]

   Given that at least Ground 4 is more appropriately considered as particulars of the manifest excess ground (Ground 1), rather than as an individual error, it is necessary to deal with Grounds 2 – 5 before determining Ground 1.

3. [284]

   The facts giving rise to the offences are set out in the sentencing judge’s Remarks on Sentence (“ROS”), dated 23 April 2021. A comprehensive analysis of the evidence adduced at trial, and upon which his Honour made findings, is provided in his Honour’s verdict judgment, delivered on 2 October 2020.

4. [285]

   In sentencing proceedings, the applicant’s case included two letters written by the applicant and addressed to the Court, dated 12 February 2021 and 31 March 2021 respectively (Exhibit 2 and Exhibit 8); a psychological report by Dr Antony Henderson, dated 9 September 2020 (Exhibit 4); and a psychological report by Ms Ann Marie De Santa Brigida, dated 17 November 2020 (Exhibit 6).

5. [286]

   In addition, the affidavit of Mohamed Mehajer (the applicant’s father), dated 30 March 2021, and the affidavit of Zenah Osman (the applicant’s sister), dated 30 March 2021, were read.

6. [287]

   The sentencing judge identified the objective seriousness of each offence as within the middle of the range. In making that determination, his Honour found that the applicant engaged in significant planning and preparation of documentation. The applicant contemplated the matters the Court was required to consider under the Bail Act and tailored the content of his affidavit and false documentation to address the various bail considerations.

7. [288]

   His Honour acknowledged that offences of perverting the course of justice are of substantial gravity, and that such offending strikes at the very heart of the justice system and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10]; PO v R [2020] NSWCCA 129 at [40].

8. [289]

   His Honour noted:

9. [290]

   His Honour did, however, have regard to the case of R v Finnie and Finnie [2007] NSWCCA 38, where it was noted that an offence intended to influence the grant of bail is not generally as serious as an offence intended to pervert a trial or sentencing proceedings.

10. [291]

    In light of the findings made, his Honour concluded that the sentence imposed must contain a strong measure of both specific and general deterrence.

11. [292]

    In relation to the applicant’s mental state at the time of the offending conduct, his Honour was not persuaded that the applicant’s underlying mental health condition was causally connected to his deliberate conduct in misleading the court in the course of his applications for bail. His Honour was not persuaded that any underlying condition operated to otherwise reduce the objective gravity of the offending.

12. [293]

    The applicant committed Count 1 and Count 2 whilst on bail for an offence of assault occasioning actual bodily harm and an offence of destroy/damage property. He committed Count 3 whilst the subject of two good behaviour bonds imposed under s 9 of the CSPA. The sentencing judge clearly stated that the fact the applicant was subject to conditional liberty, does not elevate the objective seriousness of the offending. Instead, it demonstrated a continuing disobedience and lack of insight into his obligations to the Court, a matter to be reflected in the sentence imposed.

13. [294]

    His Honour referred to the applicant’s prior criminal record, but found that the applicant’s antecedents did not operate to aggravate the offending. The applicant’s plea of not guilty and the length and complexity of the trial did not operate to increase the sentence nor the objective seriousness of the conduct. His Honour was unable to conclude, on the balance of probabilities, that the applicant is remorseful or has any insight into his offending.

14. [295]

    Although unable to make any meaningful prediction in relation to the applicant’s prospects of rehabilitation, his Honour accepted that the applicant required long-term mental health treatment, including inpatient care. Such treatment would significantly enhance his prospects of rehabilitation and mitigate any risk of future offending. It was upon this basis that his Honour made a finding of special circumstances.

15. [296]

    The applicant’s underlying mental health condition and need for treatment was also taken into account in making a finding of significant hardship in custody. The sentencing judge also considered the conditions in which the applicant served his pre-sentence custody, including the absence of adequate psychiatric care and the restrictive regime due to the COVID-19 pandemic.

16. [297]

    In finding significant hardship in custody, his Honour took into account that the applicant had been placed in protective custody due to his “high media profile” which may result in continuing exposure to the risk of “custodial retribution”.

17. [298]

    Affidavits sworn by members of the applicant’s family were relied upon in the sentencing proceedings. His Honour took into account the hardship to the applicant’s family as part of the general mix of subjective circumstances.

Ground 2 — The sentencing judge erred in his assessment that specific deterrence was required to be strongly engaged

1. [299]

   The applicant submits the need for specific deterrence is usually regarded as greater where the offence is more serious. The applicant also submits that whilst there are “past minor offences” on his criminal record, the sentencing judge did not have any material relating to the facts of those offences and, therefore, could not have formed the view that the totality of the applicant’s convictions required “a strong measure of specific deterrence”.

2. [300]

   The Crown submits that there was no error and his Honour’s finding that the sentence imposed “required a strong measure of specific deterrence” was based upon “the nature of the crimes committed and the demonstrated attitude of the offender in carrying them out rather than the applicant’s antecedents.”

3. [301]

   In his ROS, the sentencing judge stated that the “sentence imposed must contain a strong measure of specific deterrence.” Contrary to the applicant’s submissions, this finding was not made on the basis of the applicant’s criminal record. Instead, the sentencing judge found that the applicant placed his own interests over the community’s interest in the preservation of the integrity and authority of the courts.

4. [302]

   It was the applicant’s conduct in making misleading statements to the Court and in relying on false documents that warranted a strong measure of specific deterrence. Given the nature of the offending, including planning and preparation of documentation to address matters that the applicant knew were relevant to the Court’s consideration of his bail applications, it was open to the sentencing judge to find that at the time of offending the applicant had attained a high level of knowledge of the principles applicable to bail applications.

5. [303]

   Furthermore, there is clear authority for the proposition that offences of perverting the course of justice strike at the very heart of the justice system and warrant sentences that reflect a strong element of specific and general deterrence.

6. [304]

   This proposed ground is not made out.

Ground 3 — The sentencing judge erred in properly applying the appropriate aggregate sentence and as to consideration of whether the aggregate was just and appropriate

1. [305]

   The applicant submits that the sentencing judge did not correctly consider the similarity of the offences and the period within which the offences took place. The applicant contends that this alleged failure resulted in his “double punishment”. The applicant submits that the sentence is “crushing”, and a greater measure of concurrency is warranted in the circumstances.

2. [306]

   In R v Van Ryn [2016] NSWCCA 1, R A Hulme J helpfully summarised some of the authorities going to the issue of totality in sentencing:

3. [307]

   The sentencing judge considered the issues of accumulation and totality at [106] - [109] of his ROS. His Honour accepted that “all three counts significantly overlapped” but did not accept that they did so to a “considerable extent”. The principle of totality was considered with his Honour recognising that the sentence imposed must reflect the total criminality.

4. [308]

   Although the criminality, broadly speaking, was directed to an attempt by the applicant to influence the result of two bail proceedings by knowingly providing false information, the offending constituted discrete criminal acts perpetrated over a number of months. In those circumstances, it was entirely open to the sentencing judge to impose an aggregate sentence that reflected a measure of accumulation. The total accumulation was a period of one year. The degree of accumulation is not excessive, having regard to the nature and extent of the deliberate acts engaged in over many months.

5. [309]

   This proposed ground fails.

Ground 4 —The sentencing judge failed to give adequate weight to the onerous conditions that the applicant has been subjected to, namely, solitary confinement and COVID-19

1. [310]

   The applicant submits that the sentencing judge failed to give adequate weight to the onerous conditions in custody by virtue of restrictions brought about by the COVID-19 pandemic and “solitary confinement”.

2. [311]

   The Crown notes that the applicant’s complaints are not of any specific error, but of the weight that his Honour gave to these considerations. Accordingly, the Crown submits that these complaints are more appropriately considered as particulars of the manifest excess ground (Ground 1), as opposed to being considered as amounting to an individual error.

3. [312]

   The applicant’s custodial records contained an entry, dated 20 December 2020, which notes that the applicant had been classified as “PRNA [Protection Non-Association], high media profile, Hx self-harm, bipolar, depression and anxiety” (Exhibit A, Tab 4, p 13). The applicant was placed in protective custody, at least in part due to his “high media profile”. It is important to clarify that the material does not establish that the applicant was in “solitary confinement” as a punitive measure.

4. [313]

   His status as a PRNA prisoner meant that he was subject to more restrictive conditions in custody. Further, the increased restrictions in custody caused by the COVID-19 pandemic meant greater isolation and increased restriction of the applicant’s movements and contact with other prisoners.

5. [314]

   The restrictive conditions, which resulted in “significant deprivations”, were taken into account by the sentencing judge. Acknowledging the applicant’s hardship in custody, his Honour had regard to two letters prepared by the applicant which were tendered in his sentencing proceedings (Exhibit 2 and Exhibit 8). His Honour also took into account, and was alive to, the opinions of psychologists that it was unlikely that the applicant’s mental health condition would be stabilised in custody. Indeed, given the opinions expressed by the experts, and in particular Ms Brigida, his Honour made a finding of special circumstances.

6. [315]

   It is apparent that his Honour took into account the conditions in which the applicant served his presentence custody, the absence of adequate psychiatric care in custody, the restrictive regime due to the COVID-19 pandemic and the applicant’s custodial status as part of “the mix of subjective circumstances”.

7. [316]

   The applicant has not demonstrated that the sentencing judge failed to give adequate weight to the restrictions brought about by the COVID-19 pandemic and his status as a PRNA prisoner.

8. [317]

   This proposed ground has not been made out.

Ground 5 — The sentencing judge erred in so far as his Honour limited his consideration of the psychological condition of the applicant to the determination of the sentence period and did not adequately consider those factors with respect to the fixing of an appropriate aggregate non-parole period

1. [318]

   The applicant relies on the contents of Dr Henderson’s expert report (Exhibit 4) to support the contention that the sentencing judge erred in limiting his consideration of the “psychological condition” of the applicant to the determination of the sentence period, and did not adequately consider those factors with respect to setting the non-parole period.

2. [319]

   The Crown submits there was “no substance to the ground as pleaded because his Honour specifically made a finding of special circumstances based upon the need for the applicant to engage in treatment for his underlying mental health conditions.” His Honour’s findings in relation to Dr Henderson’s expert evidence was open to him and was explained in detailed reasons.

3. [320]

   An application to re-open the defence case to hear further evidence was made on 16 September 2020 and was granted. The defence case proceeded to adduce evidence from Dr Henderson as to the applicant’s mental health.

4. [321]

   That report set out the history of the applicant’s bipolar disorder, which although diagnosed after the offending behaviour, likely existed at the material time. The report stated that “around the material time”, the applicant was experiencing “grandiosity, feeling invincible, increased energy, racing throughs and impulsive behaviour”.

5. [322]

   In his ROS, the sentencing judge did not accept the opinion of Dr Henderson that the applicant was “acting impulsively, being disorganised and lacking insight”. His Honour went on to state at [60]:

6. [323]

   His Honour accepted the evidence that the applicant had a history of bipolar disorder; however, his Honour was not of the view that the condition “significantly impacted upon the offender’s cognitive or moral culpability for his offending.” There was no “causative nexus” between the mental health condition and the offending.

7. [324]

   It was entirely open to the sentencing judge to make this finding in light of the deliberate acts perpetrated by the applicant, of which his Honour was satisfied beyond reasonable doubt. His Honour was satisfied that the applicant used corporate structures that he had designed to retain control of strata and building management of the Skypoint Towers development. These structures were previously in place to “shroud the [applicant’s] control of these corporate entities and to create the impression that he was at arms-length from any contractual arrangement entered into by the corporate entities relating to the Skypoint Towers development”.

8. [325]

   Having established these entities for another purpose, the applicant misled the Court as to his position within those entities, and misled the Court about his obligation to perform strata and building management services at the Skypoint Towers development. In perpetrating this deception, the applicant prepared false documentation that he knew the Court was required to consider under the Bail Act. The applicant swore an affidavit falsely asserting his engagement in strata and building management, and the false documents would have taken some time to generate and collate.

9. [326]

   The extent to which the applicant placed false material before the Court, and either gave evidence continuing to mislead the Court, or made submissions perpetrating the falsehoods contained in the documents he had presented, was conduct which the sentencing judge was entitled to take into account in assessing the cogency of the opinion expressed by Dr Henderson as to the applicant’s likely state of mind at about the time of the offences.

10. [327]

    This is not a case where his Honour ignored the expert evidence relating to the applicant’s mental health conditions. His Honour referred to the contents of the expert reports of Ms Brigida (Exhibit 6) and Dr Henderson (Exhibit 4) and appears to have accepted their diagnoses of the applicant. Importantly, the sentencing judge accepted that the applicant’s prospects of rehabilitation would be significantly enhanced should the applicant undertake long-term mental health treatment, including inpatient care.

11. [328]

    Although the sentencing judge was not persuaded of a causal nexus between the applicant’s mental health conditions and the commission of the offences, his Honour did take into account the expert material and, based on that material, made a finding of special circumstances.

12. [329]

    This proposed ground fails.

Ground 1 – The sentence imposed upon the applicant is manifestly excessive

1. [330]

   The applicant submits that the substance of Ground 1 is strengthened when Grounds 2, 3, 4 and 5 are considered. We have considered those individually above and determined that each Ground 2-5 has failed.

2. [331]

   The applicant submits “there must have been some misapplication of principle or an error, as the sentence imposed is far outside the available sentencing range in this case.”

3. [332]

   Further, the applicant submits that although the offending was serious, “there were factors present in this case which should have led his Honour to impose a lesser sentence.” Those factors are as follows:

   1. (1)

      The learned sentencing judge erred in attributing a higher level of responsibility to the applicant because the applicant had properly understood the Bail Act. The applicant submits this is an error because he is not a lawyer;

   2. (2)

      The full offending was not of a long duration and extended from December 2017 to March 2018;

   3. (3)

      No damage to the system actually resulted because bail was not varied or granted. Therefore, a perversion of the course of justice was averted; and

   4. (4)

      That there was no planning involved as “assumed by the learned trial judge”.

4. [333]

   The Crown submits that the findings made by the sentencing judge were open on the evidence.

5. [334]

   When dealing with an appeal on sentence, the question is not whether the court hearing the appeal would have exercised the sentencing discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29.

6. [335]

   There is no single correct sentence, as sentencing is a discretionary exercise (Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24]). The weight to be attributed to the evidence and various sentencing matters is a matter for the sentencing judge (Bugmy at [24]).

7. [336]

   To establish that a sentence is manifestly excessive, it is necessary to show that it is “unreasonable or plainly unjust” (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]).

8. [337]

   In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], R A Hulme J helpfully summarised the principles that relate to an appeal where it is contended that the sentence imposed was manifestly excessive:

9. [338]

   Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases” (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]). Rather, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”: Wong at [58].

10. [339]

    His Honour’s finding that the applicant had acquainted himself with and understood the Bail Act was open on the evidence. The documents prepared in support of the two bail applications were clearly directed to persuading the Court that the applicant’s employment required either a grant of bail or a variation of bail conditions.

11. [340]

    Under the heading: “Assessment of Objective Seriousness of the Offending”, his Honour referred to R v Finnie and Finnie, noting that an offence intended to influence the grant of bail is not generally as serious as an intended perversion of trial or sentencing proceedings. As his Honour rightly observed, offences of perverting the course of justice are of substantial gravity because they strike at the very heart of the justice system. Sentences for such offences must reflect a strong element of specific and general deterrence.

12. [341]

    The applicant’s crimes involved planning, preparation and organisation. His Honour’s finding that each offence fell within the middle of the range of objective seriousness was well open to him. Having regard to his Honour’s findings and the applicant’s subjective case, we are unable to conclude that the sentence imposed reflects some misapplication of principle, or that it was so far outside the range of sentence that there must have been error: JJ v R [2020] NSWCCA 165 at [14].

13. [342]

    This proposed ground fails.

Application for leave to rely upon further medical evidence on appeal

1. [343]

   After the Court reserved judgment on the appeal, the applicant made an application by letter dated 25 October 2022 to rely upon pars [3]-[6] of his unsworn affidavit dated 24 October 2022, which in turn sought to rely upon a report of Dr John Roberts, a psychiatrist, prepared in about February 2022, in support of a civil damages claim brought by the applicant in other proceedings. The report itself was not put before the Court on the application for leave to reopen as apparently it is not in the applicant’s possession.

2. [344]

   The report would only possibly become relevant as evidence of events occurring since the sentence hearing, if the Court found error by the sentencing judge and proceeded to resentence: Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [124]. As the sentence appeal has failed and the issue of resentence does not arise, it is not necessary to address the application for leave to rely upon this report. Nor is it necessary to address the difficulty arising from the applicant’s inability to tender the report he seeks to rely upon, or the applicant’s related application for a suppression order in respect of the contents of the report.

Conclusion on sentence appeal

1. [345]

   Although leave to appeal against sentence is granted, the appeal is dismissed.

2. [346]

   After the Court reserved judgment on the appeal, the applicant filed a release application on 5 August 2022 pursuant to s 49(1) of the Bail Act 2013 (NSW). The applicant has standing to make a release application as “a person accused of an offence” which expression is defined in s 4(1) of the Bail Act as including “(c) a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending”.

3. [347]

   An earlier application for bail pending appeal was dismissed by this Court on 16 February 2022: Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23. A further application for bail pending appeal was dismissed by this Court on 22 June 2022: Mehajer v R [2022] NSWCCA 135.

4. [348]

   With respect to an application for bail pending appeal, s 22(1) of the Bail Act applies so that the applicant must demonstrate that special or exceptional circumstances exist that justify the granting of bail, otherwise the application must be refused.

5. [349]

   In addition, s 74(1) of the Bail Act contains a limitation on the power of a court to hear another release application, unless there are “grounds for a further release application”. The phrase “grounds for a further release application” is, relevantly, defined in s 74(3) of the Bail Act in these terms:

6. [350]

   The applicant’s written submissions dated 5 August 2022, only addressed the issue of the special or exceptional circumstances. The applicant relied upon the following matters in support of his release application: (a) he has already served approximately 22 months of his non-parole period of 27 months; (b) it is possible that by the time the decision on the appeal is handed down, the applicant would have served most, if not all, of his non-parole period; (c) even if the appeal against conviction is not successful, the appeal against sentence has reasonable prospects of success; and (d) the applicant requires being at liberty so as to secure legal representation for other matters for which he is currently on bail and which are listed for hearing.

7. [351]

   As the applicants’ written submissions did not address issue raised by s 74(1) of the Bail Act limiting the Court’s power to hear another release application, the applicant was afforded an opportunity to provide further written submissions directed to that issue. The applicant did not seek an oral hearing and the parties were informed that the Court would deal with the application on the papers.

8. [352]

   In his further submissions, the applicant relied upon s 74(3)(c) of the Bail Act. He submits that the circumstances which have changed since his previous release application are:

   1. (1)

      the appeal has now been heard and judgment is reserved, and it is highly likely that the applicant will be successful at least on his sentence appeal; and

   2. (2)

      the applicant is currently self-represented, his fresh application to Legal Aid was refused with respect to other pending charges and he would be able to obtain funding for a psychiatrist report capable of satisfying Legal Aid that aid should be granted in a shorter timeframe, if at liberty.

9. [353]

   The applicant also referred to other “mitigating factors” supporting his application, contending that he would have greater ability to address his debt or annul his bankruptcy, if at liberty.

10. [354]

    In addition, by letter dated 26 October 2022, the applicant sought leave to rely upon the report of Dr John Roberts, a psychiatrist, prepared in about February 2022, in support of his release application. As indicated, the report itself was not put before the Court as it is apparently not presently in the applicant’s possession.

11. [355]

    The Crown opposed the release application on the basis that the applicant has not demonstrated there are grounds for a further release application, nor are there special or exceptional circumstances.

12. [356]

    None of the matters referred to in the applicant’s submissions amount to a relevant change in circumstances since his previous release application which was dismissed by this Court on 22 June 2022.

13. [357]

    First, that the applicant is currently unrepresented in other matters, is seeking legal aid for those other matters and is also seeking to annul his bankruptcy, do not amount to a change in circumstances. All of those circumstances existed at the time of his previous release application.

14. [358]

    Second, that the applicant has to wait for a decision in his appeal is not a relevant change in circumstances. Nor is the applicant’s opinion as to the prospects of success of his appeal a change in relevant circumstances.

15. [359]

    Third, the applicant’s asserted psychological condition to which the report of Dr Roberts is said to be relevant, is not a relevant change in circumstances, as the issue of the applicant’s psychological condition was a matter agitated on his previous release application before this Court in June 2022, which was dismissed (Mehajer v R [2022] NSWCCA 135 at [8]) and this report was available at the time of the previous release application. It is no answer for the applicant to say as he does in his unsworn affidavit, which can be treated as a submission, that he did not put this report before the Court on his previous release application “because I had genuine fears, that I will not be believed”.

16. [360]

    It follows that the Court must refuse to hear another release application: Bail Act, s 74(1). Accordingly, the release application will be dismissed.

17. [361]

    Even if, contrary to our view, grounds for a further release application had been established, we are not satisfied that any of the matters identified by the applicant amounts to special or exceptional circumstances to justify the grant of bail. Moreover, given the disposition of the appeal we note that the Court’s power to grant appeal bail under s 22(1)(a) of the Bail Act no longer apples.

Orders

1. [362]

   The Court makes the following orders:

   1. (1)

      Leave to appeal against conviction granted on grounds 1, 2, 4 and 5.

   2. (2)

      The application to admit fresh or new evidence on appeal is refused.

   3. (3)

      Appeal against conviction dismissed.

   4. (4)

      Leave to appeal against sentence granted.

   5. (5)

      Appeal against sentence dismissed.

   6. (6)

      Release application filed 5 August 2022 dismissed.