Citation: R v Mehajer [2023] NSWDC 98
Court: District Court of New South Wales
Date: 5 April 2023
Judge: Bennett SC DCJ
Background
The accused appeared for trial in the District Court Sydney on 27 March 2023, unrepresented, facing seven counts relating to domestic violence offences. The charges included multiple counts of common assault, intimidation with intent to cause fear of physical or mental harm, assault occasioning actual bodily harm, and intentional suffocation, all alleged against the same complainant across incidents between 2018 and 2020.
The accused had previously withdrawn applications to vacate the trial date and had not pursued an earlier notice of motion seeking a temporary stay. Legal Aid had declined to fund representation. When the matter came before Bennett SC DCJ, the accused renewed his application for a stay of proceedings on the basis that he could not obtain legal representation, relying on the principle established in the High Court decision of Dietrich v The Queen (1992).
Before turning to the stay application itself, the accused also applied for the trial judge to recuse himself from hearing the stay application, on the basis of a possible conflict arising from the judge's prior involvement in the accused's bail proceedings.
Legal Issues
- Whether Bennett SC DCJ should recuse himself from determining the stay application, given his prior involvement in bail variation proceedings involving the accused and the complainant.
- Whether a stay of the proceedings should be granted under Dietrich v The Queen until the accused could secure legal representation.
- Whether exceptional circumstances existed that would justify proceeding to trial with an unrepresented accused.
- Whether the accused's health and financial circumstances supported the grant of a stay.
Decision
Recusal application. The court rejected the application to recuse. The applicable test, drawn from Ebner v Official Trustee in Bankruptcy, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question. The judge found that his prior involvement in bail applications, including consideration of an affidavit from the complainant, did not meet that threshold. Involvement in related interlocutory proceedings does not, of itself, give rise to a reasonable apprehension of bias.
Dietrich application. Under the principle in Dietrich v The Queen, an accused facing a serious criminal charge is entitled to have the trial stayed where they cannot obtain legal representation through no fault of their own, and no other remedy is available. The accused bore the onus of establishing the preconditions for a stay. The court found that onus was not discharged.
Exceptional circumstances. Even where some of the Dietrich preconditions are met, a court may decline a stay where exceptional circumstances exist that justify proceeding. The court accepted the Crown's submission that such circumstances were present here. The charges were not recent, and expeditious resolution was in the interests of justice, including the interests of the complainant. The accused presented as articulate and sufficiently capable of conducting his own defence with appropriate guidance from the bench and fair conduct by the Crown.
Health and financial matters. The court accepted the Crown's concession that the accused should not be treated as the author of his own misfortune, noting that he had been permitted to pursue bail applications even if that had consumed resources that might otherwise have funded legal representation. The court also accepted that the accused's mental health, while documented in reports prepared for other proceedings, did not currently impair him: his medication regime appeared to leave him fit, well, and in control.
Orders Made
- The application for a stay of proceedings until the accused could arrange legal representation was refused.
- The proceedings were adjourned to Wednesday 12 April 2023 for commencement of the trial.
Key Takeaways
- A Dietrich application requires an accused to affirmatively discharge the onus of establishing the preconditions for a stay; the mere absence of legal representation is insufficient.
- Even where those preconditions are partly satisfied, exceptional circumstances, including the age of the charges, the interests of complainants, and an accused's demonstrated capacity to self-represent, can justify proceeding to trial without legal representation.
- Prior judicial involvement in bail proceedings concerning the same accused and complainant does not automatically give rise to a reasonable apprehension of bias; the test remains whether a fair-minded lay observer would reasonably apprehend that the judge might not bring an impartial mind to the matter.
- The District Court declined to penalise the accused for expenditure on bail proceedings, accepting the Crown's concession on that point, but found those circumstances did not tip the balance in favour of a stay.
- Documented mental health history, considered in other proceedings, will not necessarily support a stay where current evidence indicates the accused is medicated and fit to participate in the trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 37(1), 59(1), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Criminal Procedure Act 1986 (NSW)
Cases
- Dietrich v The Queen [1992] HCA 292
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Craig v South Australia (1994/1995) 184 CLR 163
- Cranston v R [2020] NSWCCA 143
- R v Cranston [2020] NSWSC 469
- McIver v R [2020] NSWCCA 343
- Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98
- Helow v Secretary of State for the Home Department [2008] 1 WLR 2416