Citation: R v Mehajer [2018] NSWSC 1687
Court: Supreme Court of New South Wales
Date: 8 November 2018
Judge(s): Davies J
Background
The applicant was found guilty on 11 April 2018 by a Local Court magistrate of offences arising from the lodging of 77 fraudulent voter enrolment applications in the Auburn Local Government Area before the 2012 Auburn City Council election. The offences were committed in joint commission with his sister, and the applicant was ultimately elected to the Council. He was convicted and sentenced on 22 June 2018, and later filed an amended notice of appeal against both conviction and sentence.
The applicant had made several prior bail applications, all unsuccessful, including one before R A Hulme J in the Supreme Court in August 2018, where he was self-represented. He then filed a further release application in the Supreme Court. On this occasion he was represented by senior counsel. The Crown was represented by the Director of Public Prosecutions.
Davies J heard the application on 1 November 2018. The applicant put forward three reasons for release: the need to prepare and pursue his appeal, the need to deal with his bankruptcy, and the need for treatment of his diagnosed bipolar disorder.
Legal Issues
- Whether the applicant was precluded from making a further bail application given the recent refusal by R A Hulme J
- Whether the applicant's pending appeal against conviction and sentence had a reasonably arguable prospect of success under s 18(1)(j) of the Bail Act 2013 (NSW)
- Whether the need to deal with bankruptcy matters constituted a serious basis for bail
- Whether the need for psychiatric treatment constituted a basis for bail
- Whether the applicant presented an unacceptable risk of committing further serious offences if released
Decision
Issue 1: Entitlement to make a further application
Because the applicant was unrepresented before R A Hulme J, s 74 of the Bail Act 2013 (NSW) did not preclude him from making a fresh application (at [9]). However, the court noted that, as a matter of judicial comity, it would need good reason to depart from R A Hulme J's determination if the same material and submissions were simply repeated, to avoid inconsistent judgments that would erode public confidence in the administration of justice (at [10]).
Issue 2: Prospects of success on appeal
The applicant indicated he intended to lead fresh evidence on appeal rather than run the matter as a rehearing on the existing record (at [19]). The court noted that, because the applicant had been represented by senior and junior counsel throughout the Local Court proceedings, there would be a reasonably heavy onus on him to demonstrate that the interests of justice permitted fresh evidence to be adduced (at [22]). No details were provided on this application about the nature of the proposed fresh evidence, the particular convictions it would address, or why that evidence was not led at trial (at [26]). The appeal had not been advanced at all since the amended notice was filed, Legal Aid had been refused on both assets and merit grounds, and the applicant had given evidence at sentencing accepting responsibility for the offending (at [27]-[31]). The court concluded that the Crown case at trial was strong and nothing of substance had been raised to cast doubt on the correctness of the verdict (at [31]).
Issue 3: Bankruptcy
The court found the applicant had failed to demonstrate that dealing with his bankruptcy was a serious reason for release (at [35]). He had been free on bail for periods after his estate was sequestrated and there was no evidence of what steps he had taken during those times, nor any indication of how, given debts exceeding $8.6 million, he could realistically annul his bankruptcy (at [34]-[35]).
Issue 4: Mental health
The applicant's submission that he needed release to obtain psychiatric treatment for bipolar disorder was not supported by the evidence (at [42]-[44]). Justice Health records indicated that the applicant had not consistently sought psychological assistance in custody, and there was no evidence that he had been unable to access services he had requested (at [42]). The court also observed that psychiatrists regularly assess persons in custody, and that in any event the proposed further diagnosis was said to be for sentence purposes rather than any diminished responsibility argument on appeal (at [43]).
Issue 5: Unacceptable risk of further offending
The court accepted that bail conditions could adequately address the risk of non-appearance (at [46]). However, the applicant's custodial record since R A Hulme J's judgment was described as considerably worse than most records seen in the bail lists, consistent with his Honour's earlier assessment of an arrogant disregard for the law (at [55]). Combined with a pattern of recent charges, breaches of bail conditions, and untreated mental health issues, the court found the risk that the applicant would commit further serious offences if released reached the level of an unacceptable risk within the meaning of the Bail Act (at [56]).
The court also noted that, after judgment was reserved, the applicant sent material directly to the court registry without leave and without his lawyers' knowledge. The court read the material but found it did not address the central question of the appeal's prospects of success and did not assuage the concern about further offending (at [57]-[59]).
Orders Made
- Bail refused
Key Takeaways
- Where an applicant was unrepresented on a prior bail application, s 74 of the Bail Act 2013 (NSW) does not bar a further application, but judicial comity requires a court to have good reason to depart from a recent determination by another judge of the same court, to avoid inconsistent outcomes that would undermine public confidence in the administration of justice (at [9]-[10]).
- When the principal justification for bail after conviction is a pending appeal, the prospects of success on that appeal assume considerable significance. Where the Crown case was strong and no substantive basis has been advanced to challenge the conviction, the prospect of success may be insufficient to justify release (at [17], [31]).
- A pattern of custodial offences and prior bail breaches, particularly where accompanied by untreated mental health issues, can establish an unacceptable risk of further offending sufficient to warrant refusal of bail even where conditions could otherwise address the risk of non-appearance (at [55]-[56]).
- Under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW), leading fresh evidence on a conviction appeal carries a heavier onus where the applicant was represented by counsel throughout the original proceedings, and mere assertions about the existence of fresh evidence without detail will not suffice to demonstrate arguable prospects of success on a bail application (at [22], [26]).
- Sending unsolicited material directly to the court registry after judgment has been reserved, without the knowledge of the applicant's own lawyers and without leave, is highly irregular and will not necessarily be given weight, particularly where it does not address the central issues on the application (at [57]-[59]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW) ss 18, 22, 74
- Crimes Act 1900 (NSW) s 192G
- Crimes (Appeal and Review) Act 2001 (NSW) ss 18, 63
- Criminal Code (Cth) ss 11.2A, 137.1, 145.1
Cases
- Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Holcombe v Coulton (1988) 17 NSWLR 71
- Landsman v R [2014] NSWCCA 328
- Lowe v The Queen (1984) 154 CLR 606
- Mehajer v Australian Federal Police (21 August 2018, NSW Supreme Court, R A Hulme J, Unrep)