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District Court 1 June 2023

R v Mehajer (No. 3)

[2023] NSWDC 197

Assault & violenceDomestic & family violence

Citation: R v Mehajer (No. 3) [2023] NSWDC 197
Court: District Court of New South Wales
Date: 1 June 2023
Judge: Bennett SC DCJ

Background

The accused stood trial unrepresented in the District Court on seven counts, including multiple assault charges under the Crimes Act 1900, an intimidation charge under the Crimes (Domestic and Personal Violence) Act 2007, and a charge of intentional suffocation. The offences were alleged to have been committed against the same complainant across three separate periods between April 2018 and October 2020. On 10 May 2023, the jury returned guilty verdicts on all counts except count six, which was an alternative charge to count five and therefore did not require a verdict.

On 11 May 2023, the accused also pleaded guilty to a related offence of contravening an apprehended domestic violence order, following agreement with the Crown to proceed on that single charge from a group of five related offences that had been before the court.

After the verdicts, the accused returned to court on 1 June 2023 seeking three forms of relief. He applied for release on bail, sought the issue of subpoenas requiring the complainant to attend court for further cross-examination and to produce documents, and sought an adjournment of the proceedings to investigate the availability of an expert witness. All three applications arose from his contention that photographic images tendered at trial as Exhibit X had been digitally manipulated by the complainant.

  • Whether special or exceptional circumstances existed under s 22B of the Bail Act 2013 to justify releasing the accused on bail following his conviction and before sentencing
  • Whether subpoenas should issue requiring the complainant to produce documents relating to photo-editing applications and to attend court for further cross-examination
  • Whether the proceedings should be adjourned to allow the accused to investigate the availability of an expert witness who might speak to the alleged manipulation of images in Exhibit X
  • Whether the accused should be permitted to conduct a demonstration on a mobile phone to show how images could be manipulated

Decision

Bail application. The court applied s 22B of the Bail Act 2013, which imposes a high threshold on accused persons seeking release after conviction on indictment where a sentence of full-time detention is anticipated. In that position, an accused must establish "special or exceptional circumstances" to obtain release. Bennett SC DCJ found that the purposes for which the accused sought release, namely arranging an expert report and preparing appeal grounds around the alleged image manipulation, did not meet that threshold. The application was refused.

Subpoena applications. The accused proposed to ask the complainant a single question about whether she had manipulated Exhibit X, expressing confidence she would admit to doing so. The court was unpersuaded that issuing subpoenas for the complainant's attendance or for production of documents relating to her phone and photo-editing applications was appropriate at this stage of the proceedings. The applications were refused.

Adjournment application. The accused sought more time to locate an expert, identified only by a first name as a former Australian Federal Police officer, who might be willing to assert that the images had been manipulated. The court found it inappropriate to delay proceedings for what amounted to a speculative investigation in the hope of finding a willing expert.

Proposed demonstration. The court also declined to permit the accused to conduct a live demonstration on a mobile phone to show how images could be altered. Applying s 135 of the Evidence Act 1995, Bennett SC DCJ found the probative value of such a demonstration was limited because there was no basis to assess the relevance of whatever application the accused might choose to use. That limited probative value was clearly and substantially outweighed by the danger of unfair prejudice to the Crown and the potential for the demonstration to be misleading or confusing, given it rested almost entirely on the accused's conjecture.

Orders Made

  • The application for adjournment to investigate the availability of a witness regarding potential manipulation of images in Exhibit X was refused.
  • The application for issue of subpoenas for production of documents by the complainant and for her attendance to give further evidence was refused.
  • The application for release on bail was refused.

Key Takeaways

  • Under s 22B of the Bail Act 2013, an accused seeking bail after conviction on indictment, where a sentence of full-time detention is anticipated, must establish special or exceptional circumstances. The desire to arrange expert reports or prepare appeal grounds did not satisfy that standard in this case.
  • Refusing the subpoena applications, the District Court found it was not appropriate to compel the complainant to attend for further cross-examination or produce documents where the accused's case rested on conjecture about image manipulation rather than any established evidentiary foundation.
  • A trial adjournment will not readily be granted to allow an accused to conduct a speculative search for an expert who might support a theory already raised during trial but not substantiated.
  • Under s 135 of the Evidence Act 1995, a proposed mobile phone demonstration can be excluded where its probative value is limited by the absence of any basis for assessing the relevance of the method used and is clearly outweighed by the danger of unfair prejudice, confusion or misleading the court.
  • The decision illustrates the narrow scope for post-conviction procedural relief in circumstances where a jury has already returned guilty verdicts and the accused advances unsubstantiated grounds directed at undermining evidence considered at trial.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 22B
- Crimes Act 1900 (NSW), ss 37(1), 59(1), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 165, 166
- Evidence Act 1995 (NSW), s 135

Cases
- Callaghan v R [2006] NSWCCA 58
- R v Mehajer [2023] NSWCCA 98
- R v Mehajer (No 2) [2023] NSWDC 151