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Court of Criminal Appeal 20 December 2024

Mehajer v R (No 2)

[2024] NSWCCA 247

Public order & justice offences
CRIME BAIL BAIL PENDING APPEAL NO QUESTION OF PRINCIPLE

Citation: Mehajer v R (No 2) [2024] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 20 December 2024
Judge(s): Kirk JA; Rothman J; Yehia J

Background

The applicant is serving a term of imprisonment following findings of guilt across two separate trial proceedings. He filed a Notice of Intention to Appeal against both conviction and sentence, and subsequently made two applications for bail pending appeal to the Court of Criminal Appeal. The second application was heard by Kirk JA, Rothman J and Yehia J, and dismissed on 6 December 2024: Mehajer v R [2024] NSWCCA 226.

By email to the Court on 13 December 2024, the applicant sought leave to reopen the bail proceedings and to revisit submissions on the merits of his grounds of appeal. He raised two complaints: first, that the Court had only considered grounds of appeal from his earlier (August 2024) bail application rather than his more recent, "settled" grounds; and second, that the Crown prosecutor had filed submissions from the earlier application at the commencement of the hearing, causing the Court to rely on outdated material.

The Court treated the application as seeking both leave to reopen the proceedings and, by inference, leave to set aside the order dismissing the bail application.

  • Whether Rule 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applied to an application to reopen bail proceedings under the Bail Act 2013 (NSW)
  • Whether the Court had a general (non-statutory) power to reopen its decision, and if so, in what circumstances that power could be exercised
  • Whether the applicant had established any basis (misapprehension of fact or law, or interests of justice) sufficient to warrant reopening the dismissed bail application

Decision

The Court first addressed the applicable procedural rules. Rule 5.4 of the Supreme Court (Criminal Appeal) Rules 2021, which permits the Court to set aside or vary an order, sits within Division 5.2, a division confined to appeals and applications for leave to appeal. Because the applicant had made a release application under the Bail Act 2013, not an appeal or leave application, Rule 5.4 had no application. The Court noted the respondent's reliance on Rule 5.4 was therefore misconceived.

In the absence of an express statutory power, the Court turned to the limited general jurisdiction to reopen proceedings. Applying the principle from Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, reopening is available only where the court has apparently proceeded on a misapprehension of the facts or the law, and that misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. A heavy onus rests on the party seeking to reopen, and the jurisdiction is not a vehicle for unsuccessful litigants to re-argue their cases.

The Court rejected each of the applicant's complaints on the merits. Contrary to the applicant's assertion, the primary judgment had expressly addressed the applicant's most recent, "settled" grounds of appeal and the submissions made in support of them. The Crown's use of earlier submissions did not distract the Court or cause it to rely on outdated material, particularly given oral supplementary submissions were made. The applicant's concerns about his ability to prepare for the appeal in custody had also been fully addressed in the primary judgment and could not be reagitated through a reopening application. The Court found no misapprehension of fact or law, and no basis in the interests of justice to reopen the proceedings.

Orders Made

  • Leave to reopen the bail proceedings is refused.

Key Takeaways

  • Rule 5.4 of the Supreme Court (Criminal Appeal) Rules 2021 applies only to appeals and applications for leave to appeal; it does not extend to release applications made under the Bail Act 2013 (NSW), confirming the approach in Fantakis v Director of Public Prosecutions (No 2) [2021] NSWCCA 317.
  • Where no express statutory power to reopen exists, the Court of Criminal Appeal may revisit a decision only in the limited circumstances identified in Autodesk: where the court apparently proceeded on a misapprehension of fact or law not attributable solely to the applicant's own neglect or default.
  • A heavy onus rests on any party seeking to reopen a judgment or order, and the jurisdiction is not available as a means of re-arguing a case that was decided against a party.
  • Factual complaints about opposing parties filing earlier submissions will not ground a reopening application where the court can demonstrate, by reference to its own reasons, that it was not misled or distracted by that material.
  • Matters thoroughly addressed and resolved in the original judgment, including complaints about conditions of custody affecting an applicant's ability to prepare an appeal, cannot be reagitated through an application to reopen.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 5.2, 5.4(1), 5.4(4), Div 5.2

Cases
- Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
- Barel v Barel [2024] NSWCA 257
- De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14
- Fantakis v Director of Public Prosecutions (No 2) [2021] NSWCCA 317
- Mehajer v Director of Public Prosecutions [2024] NSWCCA 172
- Mehajer v R [2024] NSWCCA 226
- New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
- Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77
- Proietti v Proietti [2023] NSWCA 132
- R v AB (No. 2) [2018] NSWCCA 148
- R v Jones; Hili (No 2) [2010] NSWCCA 195