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2
District Court 10 May 2023

R v Mehajer (No. 2)

[2023] NSWDC 151

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: R v Mehajer (No. 2) [2023] NSWDC 151
Court: District Court of New South Wales
Date: 10 May 2023
Judge(s): Bennett SC DCJ

Background

The offender stood trial in the District Court on an indictment containing seven counts arising from alleged conduct between April 2018 and October 2020. The charges included multiple counts of common assault, intimidation under the Crimes (Domestic and Personal Violence) Act 2007, assault occasioning actual bodily harm, and intentional suffocation. The complainant was in each instance the same person, who was later the subject of apprehended violence order (AVO) protections.

The offender appeared unrepresented, sought to stay proceedings, and was unsuccessful in relief sought from the Court of Criminal Appeal before the trial resumed on 18 April 2023. The jury returned guilty verdicts on all counts on 10 May 2023 (Count Six, as an alternative to Count Five, did not require determination).

Following the verdicts, the Crown produced a certificate under section 166 of the Criminal Procedure Act 1986 identifying five related summary offences. Each alleged that the offender had knowingly contravened a prohibition in an AVO order on various dates between 24 and 30 December 2020, at Silverwater. The offender applied for these related offences to be remitted to the Local Court rather than dealt with by the District Court.

  • Whether the District Court was required to deal with the related summary offences under the "back-up and related offences" scheme in Division 7 of Part 3, Chapter 3 of the Criminal Procedure Act 1986, or whether remission to the Local Court was warranted in the interests of justice.
  • Whether the offender's arguments about appeal rights, procedural fairness, delay, and the suitability of the District Court provided sufficient grounds to remit the related offences under section 169 of the Criminal Procedure Act 1986.

Decision

Under sections 166 to 169 of the Criminal Procedure Act 1986, where an accused is found guilty of an indictable offence, the court is generally required to deal with any related summary offences unless doing so would not be in the interests of justice. The court retains a discretion to remit under section 169, but the default position is that the District Court handles these charges.

The offender raised six points in support of remission, including arguments about reduced appeal rights, alleged prejudice, and a preference for a different judicial officer to determine the related charges. Bennett SC DCJ rejected each ground. The court noted that section 5AD of the Criminal Appeal Act 1912 provides appeal rights to the Court of Criminal Appeal where related offences are dealt with in the District Court, which addressed the offender's concerns about appellate access.

The court also found that the legislative scheme exists precisely to provide an efficient, consolidated process for related charges, avoiding the cost and delay of separate Local Court proceedings. No basis was established to suggest the District Court was a less suitable forum than the Local Court, and no material prejudice was identified that would arise from the District Court retaining the charges.

The application was refused. The following day, the matter resolved by agreement: the offender pleaded guilty to one of the five related offences (the contravention between 27 and 28 December 2020), and the Crown indicated it would withdraw the remaining four upon sentencing.

Orders Made

  • The application to remit the related offences for hearing in the Local Court was refused (announced 10 May 2023).
  • On 11 May 2023, the offender pleaded guilty to Sequence H 77477932/1 (knowingly contravening a prohibition in an AVO order between 9:00pm on 27 December 2020 and 3:00pm on 28 December 2020 at Silverwater).
  • The Crown indicated the remaining four related offences (Sequences 2 through 5) would be withdrawn upon the imposition of sentence for the admitted offence.

Key Takeaways

  • Under sections 166 to 169 of the Criminal Procedure Act 1986, the District Court is required to deal with related summary offences following a guilty verdict on an indictable charge, unless remission to the Local Court is in the interests of justice. The burden rests on the party seeking remission to establish that ground.
  • Appeal rights under section 5AD of the Criminal Appeal Act 1912 apply where related offences are determined in the District Court, meaning an offender is not left without appellate recourse simply because the charges are not remitted to the Local Court.
  • The legislative scheme for related offences is designed to provide efficiency and avoid the duplication of proceedings across courts. The District Court treated this policy rationale as a significant reason to retain the charges rather than remit them.
  • A preference for a different judicial officer to hear the related charges, without more, does not constitute a sufficient basis for remission under section 169.
  • Following refusal of remission, negotiated resolution remained available: the related charges were resolved by a plea to one count with the Crown withdrawing the remaining four, illustrating that the related offences procedure does not preclude subsequent case resolution.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1), 59(1), 61
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 14(1)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AD
- Criminal Procedure Act 1986 (NSW), ss 165, 166, 167, 168, 169
- Supreme Court Act 1970 (NSW)

Cases
- Maroubra Rugby League Football Club Inc v Malo & Anor [2007] NSWCA 39
- McDermott v Collien (1953) 87 CLR 154
- R v Belghar [2012] NSWCCA 86
- R v Mehajer [2023] NSWCCA 98