Citation: Mehajer v Director of Public Prosecutions [2022] NSWCCA 23
Court: Court of Criminal Appeal
Date: 16 February 2022
Judges: Johnson J (primary reasons); Harrison J and Fagan J (agreeing)
Background
The applicant sought bail on two separate bases. First, he sought bail pending the hearing of an application for leave to appeal his conviction and sentence in the Court of Criminal Appeal. That conviction followed a judge-alone trial before Judge Zahra SC, in which the applicant was found guilty of perjury and two counts of perverting the course of justice. He received an aggregate sentence of three years and six months imprisonment, with a non-parole period of two years and three months commencing October 2020.
Second, the applicant sought bail in advance of a District Court trial listed for June 2022, arising from alleged domestic violence offences against his then partner. Those charges included intentional suffocation, assault occasioning actual bodily harm, common assault, intimidation, and contravening apprehended domestic violence orders. Two of the charges were alleged to have been committed while the applicant was already on bail for other matters.
The applicant, who appeared for himself, filed extensive written submissions and affidavit material. The Crown filed a court book of 429 pages in response. A previous bail application before Ierace J had been refused in February 2021, though the present application was determined afresh.
Legal Issues
- Whether the applicant had demonstrated "special or exceptional circumstances" justifying bail pending his conviction appeal, as required by s 22(1) of the Bail Act 2013
- Whether the applicant had discharged the "show cause" requirement applicable to two charges at the domestic violence trial, which were alleged to have been committed while the applicant was on bail
- Whether, even if either threshold were met, significant unacceptable bail risks remained that could not be mitigated by conditions
Decision
Bail pending the conviction appeal: Under s 22(1) of the Bail Act 2013, an applicant seeking bail pending an appeal must demonstrate special or exceptional circumstances. Johnson J applied the framework confirmed in Fantakis v Director of Public Prosecutions [2021] NSWCCA 271, under which courts take only a broad overview of apparent appeal prospects rather than treating the bail application as a dress rehearsal for the substantive appeal. The court assessed the applicant's proposed grounds of appeal in that broad way and found they did not disclose reasonable prospects of success. Special or exceptional circumstances were not established.
Show cause for the domestic violence charges: Two charges at the upcoming domestic violence trial attracted the show cause requirement because they were alleged to have been committed while the applicant was on bail: s 16B(1)(h)(i) of the Bail Act. The onus rested on the applicant to establish on the balance of probabilities that his detention was not justified. The court found the applicant had not discharged that burden.
Bail concerns independent of the thresholds: Johnson J further noted that even if special or exceptional circumstances had been demonstrated, significant bail concerns would remain. These concerns could not be adequately mitigated by any proposed bail conditions. Harrison J agreed, finding unacceptable risks that conditions could not ameliorate, though he expressly noted he did not consider the applicant a flight risk. Fagan J placed particular weight on the applicant's past bail breaches and what he described as a now-established record of non-cooperation in the administration of justice.
Orders Made
• The applicant's release application is refused
• Bail is refused
Key Takeaways
- Under s 22(1) of the Bail Act 2013, an applicant for bail pending a conviction appeal must demonstrate special or exceptional circumstances; a court assessing appeal prospects at the bail stage is confined to a broad overview, not a detailed evaluation of the merits.
- Where two distinct thresholds apply (special or exceptional circumstances for the appeal, and show cause for pending trial charges), each must be satisfied independently on the material before the court.
- A history of non-compliance with bail conditions is a relevant consideration, and the Court of Criminal Appeal here treated an established pattern of non-cooperation as weighing heavily against the applicant, even though such a history does not automatically result in refusal.
- Refusing bail pending both the appeal and the upcoming trial, the court found that significant unacceptable risks persisted that no bail conditions could adequately address.
- The same factual material may be relevant at multiple stages of the bail analysis, but satisfying one threshold does not guarantee that the unacceptable risk test will also be satisfied.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), including ss 16A, 16B, 18, 22, 32, 71
- Crimes Act 1900 (NSW), ss 37, 59, 61, 319, 327
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
- Byrne v R [2020] NSWCCA 218
- Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
- FB v R [2011] NSWCCA 217
- R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
- R v Kugor [2015] NSWCCA 14
- Viavattene v R [2018] NSWCCA 197
- Xie v R [2021] NSWCCA 1