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Court of Criminal Appeal 17 April 2023

Mehajer v R

[2023] NSWCCA 101

Assault & violenceDomestic & family violence
APPEAL AGAINST EXERCISE OF DISCRETION WHETHER APPLICANT IS INDIGENT REPRESENTED PERSON

Citation: Mehajer v R [2023] NSWCCA 101
Court: Court of Criminal Appeal, New South Wales
Date: 17 April 2023
Judges: Davies J; Ierace J; Cavanagh J

Background

The applicant, an undischarged bankrupt who had been in custody since November 2020, was facing trial in the District Court on a series of domestic violence charges. Those charges included multiple counts of assault, intimidation, assault occasioning actual bodily harm, and intentional suffocation of his former partner. He appeared before the Court of Criminal Appeal unrepresented, by audio-visual link from custody.

The applicant's legal aid had previously been terminated, and he was self-represented at trial. On 20 March 2023, he filed a motion seeking a temporary stay of the proceedings on the basis that he was indigent and unable to obtain legal representation through no fault of his own. The trial judge, Bennett SC DCJ, heard the application and refused it on 5 April 2023, finding the applicant had not established indigency. The trial recommenced on 12 April 2023 and a jury was empanelled before the applicant filed this urgent application for leave to appeal.

The Court of Criminal Appeal heard the matter on an urgent basis because the trial was due to resume on 18 April 2023. The Court refused leave to appeal and provided written reasons shortly after.

  • Whether the trial judge erred in finding the applicant had not established that he was indigent
  • Whether the trial judge erred in the exercise of his discretion in refusing the application for a temporary stay of proceedings
  • Whether the trial judge placed insufficient weight on medical evidence when finding the applicant was capable of running his own trial unrepresented
  • Whether the trial judge erred in not staying proceedings pending production of a Cellebrite phone download by the Officer in Charge

Decision

The Court confirmed the applicable test from Dietrich v The Queen (1992): a self-represented accused seeking a temporary stay must establish both that they are indigent and that, through no fault of their own, they are unable to obtain legal representation. Only if both limbs are satisfied must a court, except in exceptional circumstances, adjourn the trial to avoid the risk of an unfair trial. The applicant bears the onus of proving indigency on the balance of probabilities.

On the first ground, the Court found the trial judge was entitled to conclude that the applicant had not discharged that onus. The trial judge had before him extensive material: affidavits from the applicant, oral evidence from the trustee in bankruptcy, documents from the Legal Aid Commission, and reports to creditors. The evidence revealed that the applicant had not been open, transparent, and forthcoming about his financial circumstances, which the Court confirmed is a factor that may properly cause a court to remain unsatisfied as to indigency. The applicant's position that his bankruptcy and custody status must be taken as establishing indigency without more was rejected.

Because the applicant failed on the first ground, the remaining grounds fell away. The trial judge had only considered the question of the applicant's capacity to self-represent on the basis that he might be wrong about indigency, so that analysis was not independently dispositive. The Court also noted that this was an appeal from a discretionary interlocutory decision, meaning the applicant was required to demonstrate error of the kind identified in House v The King, that is, error of principle, failure to consider relevant material, or misinterpretation of facts. The applicant's submissions were largely a restatement of the arguments made below, which does not meet that standard. The Court also found that the purported fresh evidence, being a letter from the trustee in bankruptcy and a letter from the Legal Aid Commission, did not assist the applicant even if it were otherwise admissible.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • An accused person seeking a temporary stay of trial on Dietrich grounds must satisfy both limbs of the test: they are indigent, and they are unable to obtain legal representation through no fault of their own. Failure on indigency is fatal to the application.
  • Bankruptcy and being in custody do not, of themselves, establish indigency. A court is entitled to require an accused to be open, transparent, and forthcoming about the full picture of their financial circumstances.
  • Where an accused has not been candid about their finances, a court may properly decline to be satisfied of indigency even in the presence of formal indicia of impecuniosity.
  • In dismissing the application, the Court of Criminal Appeal reaffirmed that appeals from discretionary interlocutory decisions require demonstration of legal error under the House v The King principles. A restating of arguments made at first instance does not meet that threshold.
  • The standard for appellate intervention in discretionary judgments is particularly demanding where the trial judge was simply not satisfied that the applicant had discharged an onus of proof resting on the applicant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1), 59(1), 61
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Legal Aid Commission Act 1979 (NSW), ss 25(4)(l), 60

Cases
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Cox [1999] NSWCCA 229
- R v Cranston [2020] NSWSC 469
- R v Cranston (No 8) [2021] NSWSC 9
- R v Macdonald (No 4) [2016] NSWSC 486
- R v BK (2000) 110 A Crim R 298
- R v Mehajer [2018] NSWSC 1687