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Court of Criminal Appeal 18 November 2022

Mehajer v R

[2022] NSWCCA 240

Fraud & dishonestyPublic order & justice offences
CRIME APPEAL AGAINST CONVICTION LEAVE TO APPEAL JUDGE ALONE TRIAL APPEAL AGAINST SENTENCE LEAVE TO APPEAL

Citation: Mehajer v R [2022] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 18 November 2022
Judges: Bell CJ; Gleeson JA; Yehia J

Background

The applicant was the sole shareholder in two companies that developed a 10-storey mixed residential and commercial tower in Lidcombe known as "Skypoint Towers." Following financial difficulties in mid-2017, receivers and voluntary administrators were appointed over those companies. Disputes arose between the applicant and the receivers over control of building management and strata services at the development.

The applicant was tried and convicted by a judge alone in the District Court on two counts of doing an act with intent to pervert the course of justice (under s 319 of the Crimes Act 1900 (NSW)) and one count of perjury (under s 327). The conduct underlying the charges related to the swearing and use of a false affidavit and the provision of false information about his employment circumstances in connection with bail variation proceedings in December 2017 and March 2018.

On 2 October 2020, the trial judge found the applicant guilty on all three counts. On 23 April 2021, an aggregate sentence of 3 years and 6 months imprisonment was imposed, with a non-parole period of 2 years and 3 months. The applicant, unrepresented in the Court of Criminal Appeal, sought leave to appeal both conviction and sentence, and also applied for release pending the appeal determination.

  • Whether the trial judge's questioning of witnesses constituted excessive intervention that caused a miscarriage of justice
  • Whether the prosecution complied with its disclosure obligations in relation to data downloaded from the applicant's mobile phones
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in assessing the need for specific deterrence
  • Whether the aggregate sentence amounted to double punishment or was otherwise crushing
  • Whether adequate weight was given to the conditions in which the applicant was held in custody
  • Whether the sentence was manifestly excessive
  • Whether the applicant's release application met the threshold of demonstrating a change in circumstances since his previous bail application

Decision

The Court granted leave to appeal on grounds 1, 2, 4, and 5 of the conviction appeal, and also granted leave to appeal against sentence. However, it dismissed both appeals and refused the release application.

On the conviction grounds, the Court rejected the argument that the trial judge's interventions in questioning witnesses were excessive or caused a miscarriage of justice in the context of a judge-alone trial. The Court also found no failure by the prosecution to comply with its disclosure obligations regarding the mobile phone data, and was not persuaded that the verdicts were unreasonable or unsupported by the evidence.

On sentence, the Court found no error in the trial judge's assessment of specific deterrence, no double punishment, and no failure to give adequate weight to custody conditions. The aggregate sentence was not characterised as manifestly excessive. The application to admit fresh or new evidence on appeal was refused.

On the release application, the Court found no relevant change in circumstances since the applicant's previous application, which had been dismissed in June 2022. The applicant's unrepresented status in other proceedings, the pending appeal, and a psychological report that had been available at the time of the prior application did not constitute a change in circumstances for the purposes of s 74 of the Bail Act 2013 (NSW). Accordingly, the Court was required by s 74(1) to refuse to hear the application.

Orders Made

  • Leave to appeal against conviction granted on grounds 1, 2, 4 and 5
  • Application to admit fresh or new evidence on appeal refused
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed
  • Release application filed 5 August 2022 dismissed

Key Takeaways

  • In dismissing both appeals, the Court of Criminal Appeal confirmed that the disclosure obligations owed by the prosecution regarding mobile phone data had been satisfied on the facts of this case, and that evidentiary challenges did not undermine the safety of the verdicts.
  • A trial judge's questioning of witnesses in a judge-alone trial does not automatically constitute excessive intervention; the court assessed the questioning in context and found it did not cause a miscarriage of justice.
  • Under s 74(1) of the Bail Act 2013 (NSW), a court must refuse to hear a further release application unless the applicant demonstrates a relevant change in circumstances since the prior application; the pendency of an appeal and the applicant's choice not to rely on available evidence in the earlier application were insufficient to satisfy that threshold.
  • No error was established in the sentencing judge's approach to specific deterrence, the aggregate sentence structure, or the weight given to conditions in custody, and the sentence was not found to be manifestly excessive.
  • Where fresh or new evidence is sought to be admitted on appeal, the application will be refused if the evidence does not meet the requirements for admission; the Court here refused the applicant's application on that basis.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 4, 22, 49, 74
- Crimes Act 1900 (NSW), ss 319, 327
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 53A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c), 6(1)
- Criminal Procedure Act 1986 (NSW), ss 61, 62, 63
- Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Dansie v The Queen [2022] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23
- Mehajer v R [2022] NSWCCA 135
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Masters v R [2022] NSWCCA 228
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29