Citation: Mehajer v R [2024] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 6 December 2024
Judges: Kirk JA; Rothman J; Yehia J (reasons by Yehia J, Kirk and Rothman JJ agreeing)
Background
The applicant had been convicted following two separate District Court trials: one for domestic violence offences against a former partner, and one for creating and using false documents. Both convictions were entered before the same judge, and the applicant was sentenced for both groups of offences in May 2024. A Notice of Intention to Appeal was filed in August 2024 covering both conviction and sentence, though no formal Notice of Appeal had been filed at the time of the hearing.
A bail application pending appeal was made to the Court of Criminal Appeal in August 2024 and refused. The present application, heard in October 2024, was a fresh application relying on additional material, including affidavit evidence about conditions in custody, the applicant's ability to prepare his appeal as a self-represented person, and proposed grounds of appeal.
The applicant had also, since the previous application, pleaded guilty to further offences: one count of perverting the course of justice (staging a motor vehicle collision to avoid a court hearing) and six counts of falsely nominating other drivers for traffic offences. He was sentenced for those matters on 22 October 2024.
Legal Issues
- Whether the applicant had established a change in circumstances since the previous refused bail application, as required under s 74(3) of the Bail Act 2013 (NSW) to justify a fresh hearing
- Whether the applicant had established "special or exceptional circumstances" under s 22B of the Bail Act 2013 (NSW), which must be shown before bail can be granted to a person in the applicant's position
- Whether the proposed grounds of appeal were arguable or enjoyed reasonable prospects of success
- Whether the applicant's inability to prepare the appeal while in custody, or the risk of serving a significant portion of his non-parole period before the appeal was heard, could independently constitute special or exceptional circumstances
Decision
Yehia J (with whom Kirk JA and Rothman J agreed) dismissed the application. The court was not satisfied that the applicant had established special or exceptional circumstances, which is the threshold requirement under s 22B of the Bail Act 2013 (NSW) for a person in his position. In the absence of that threshold being met, s 22 of the Act requires bail to be refused.
On the strength of the proposed grounds of appeal, the court was not persuaded that the appeal was arguable or enjoyed reasonable prospects of success. The court examined the proposed grounds in some detail but concluded they did not meet the requisite standard. This finding was significant because a weak proposed appeal carries considerable weight against a finding of special or exceptional circumstances.
The applicant also argued that he would serve a substantial portion of his non-parole period before any appeal could be heard, and that being in custody prevented him from preparing his appeal as a self-represented person. The court acknowledged these as relevant considerations, but found that, without a sufficiently arguable appeal, neither factor independently constituted special or exceptional circumstances. Authorities including Robinson v R (1991) and El-Hilli & Melville v R [2015] were cited in support of this conclusion.
Other matters raised by the applicant, including difficulty accessing evidence from custody and the risk of a family home being sold, were given little weight. The court found the "critical evidence" had not been sufficiently identified, and there was an absence of supporting documents on the property issue. Delays in sentencing were noted to have been partly caused by the applicant's own legal representatives.
Orders Made
- The bail application is dismissed.
Key Takeaways
- Under s 22B of the Bail Act 2013 (NSW), an applicant seeking bail pending appeal must establish special or exceptional circumstances before bail can be granted; without that threshold, s 22 mandates refusal.
- The strength of the proposed grounds of appeal is central to the special or exceptional circumstances inquiry: where the proposed appeal is not arguable and does not enjoy reasonable prospects of success, this weighs heavily against bail.
- Likely service of a significant portion of a non-parole period before an appeal is heard does not, by itself, constitute special or exceptional circumstances, particularly in the absence of an arguable appeal ground.
- Difficulties preparing an appeal while in custody, including as a self-represented person, were treated as relevant but insufficient on their own to satisfy the threshold where the proposed appeal lacked demonstrable merit.
- A fresh bail application under s 74(3) of the Bail Act requires a change in circumstances since the previous refusal; the court here proceeded on the basis that fresh material had been filed, but ultimately found it did not shift the outcome.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A(1), 17, 22, 22B, 32(1), 61, 74(3)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 78A
- Criminal Appeal Act 1912 (NSW), ss 5F, 10(2)(b)
Cases:
- Mehajer v Director of Public Prosecutions [2024] NSWCCA 172 (previous bail application)
- Mehajer v R [2023] NSWCCA 101
- R v Mehajer [2024] NSWDC 240
- Robinson v R (1991) 65 ALJR 519
- El-Hilli & Melville v R [2015] NSWCCA 146
- Ali v The Queen [2005] HCA 8
- R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
- Obeid v R (No 2) [2016] NSWCCA 321
- Fantakis v Director of Public Prosecutions [2021] NSWCCA 271
- Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- El Khouli v R [2019] NSWCCA 146
- Adanguidi v R [2024] NSWCCA 82
- Luo v R [2024] NSWCCA 58
- Miller v R [2022] NSWCCA 255
- Park v R [2022] NSWCCA 263
- Ramsey v R [2022] NSWCCA 197
- Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102
- R v Williams [2020] NSWCCA 348