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Court of Criminal Appeal 30 May 2025

Mehajer v Director of Public Prosecutions (NSW)

[2025] NSWCCA 79

Fraud & dishonestyDomestic & family violence
CRIMINAL LAW RELEASE APPLICATION APPEALS BAIL SELF REPRESENTED APPLICANT CHANGES TO GROUNDS COSMETIC

Citation: Mehajer v Director of Public Prosecutions (NSW) [2025] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 30 May 2025
Judge(s): Hamill J (primary reasons); McNaughton J and Rigg J (agreeing)

Background

The applicant had been convicted in two separate District Court trials: one involving domestic violence offences allegedly committed between 2018 and 2020, and another involving fraud offences (making false documents) allegedly committed in March 2020. He was sentenced on 9 May 2024 and had been in custody on a largely continuous basis since January 2021. Appeals and applications for leave to appeal against those convictions and sentences remained pending in the Court of Criminal Appeal.

The applicant sought release on bail pending the resolution of those appeals (commonly described as "appeals bail"). This was not his first such attempt before the Court. The Court of Criminal Appeal had refused release applications in August 2024 and December 2024, with a further refusal of leave to re-open bail proceedings following shortly after in the same month.

The applicant, who was self-represented and in custody, lodged the present release application in February 2025. The Court took an indulgent approach to the late and out-of-sequence filing of documents and submissions, accepting all material filed up to 19 May 2025. The Director of Public Prosecutions opposed the application.

  • Whether the applicant had established grounds, under s 74 of the Bail Act 2013 (NSW), to bring a further release application to the same court after previous applications had been dismissed.
  • Specifically, whether there was "material information" not presented on earlier applications, or a relevant change in circumstances, sufficient to enliven the Court's power to entertain the application.
  • Whether "more settled" appeal grounds, or a pending provisional parole decision with an anticipated release date of 18 July 2025, constituted either new material information or a changed circumstance for s 74 purposes.

Decision

The Court dismissed the application at the threshold, finding that the applicant had not established grounds to bring a further release application under s 74 of the Bail Act. Because the application failed at that stage, the Court did not proceed to consider the substantive bail tests under ss 17 to 19 or s 22 of the Act.

On the question of revised appeal grounds, Hamill J found the changes to be cosmetic rather than substantive. The "more settled" grounds were, in substance, the same grounds that had been before the Court on earlier applications. That refinement of presentation did not amount to material new information for s 74 purposes.

On the question of the pending parole decision, the Court accepted that a provisional decision to grant parole, with a review hearing pending, was a circumstance that had changed since the last application. However, it was not a circumstance relevant to the grant of appeals bail. The applicant's non-parole period expiry date of 18 July 2025 had been known and was explicitly noted in the December 2024 judgment of Yehia J. If the applicant were granted parole, he would be released regardless of the outcome of his appeal. The imminence of potential parole release was therefore irrelevant to whether appeals bail should be granted.

Hamill J expressly noted that nothing in the decision should fetter, influence or interfere with the State Parole Authority's consideration of the matter at its Review Hearing.

Orders Made

  • The further release application was dismissed pursuant to s 74 of the Bail Act 2013 (NSW).

Key Takeaways

  • Under s 74 of the Bail Act 2013 (NSW), a party cannot bring successive release applications to the same court without establishing either material new information or a relevant change in circumstances. The threshold is a real one, not a formality.
  • Cosmetic revision of appeal grounds does not constitute "material information" that was not presented on an earlier application. The substance of the grounds, not their presentation, is what matters.
  • A pending parole decision, and the consequent imminence of release, does not amount to a changed circumstance relevant to an appeals bail application where the applicant's non-parole period expiry date was already known and had been addressed in a prior judgment.
  • The Court of Criminal Appeal confirmed that appeals bail and parole operate on entirely separate tracks: release through one mechanism has no necessary bearing on entitlement to release through the other.
  • In dismissing the application, the Court was careful to state that its decision had no bearing on, and should not be taken to influence, the State Parole Authority's separate determination.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 22, 61, 74

Cases:
- Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23
- Mehajer v Office of the Director of Public Prosecutions [2023] NSWCCA 49
- Mehajer v Director of Public Prosecutions (NSW) [2024] NSWCCA 172
- Mehajer v R [2024] NSWCCA 226
- Mehajer v R (No 2) [2024] NSWCCA 247
- R v Mehajer [2024] NSWDC 240
- R v Mehajer (No 3) [2023] NSWDC 197
- El-Hilli & Melville v R [2015] NSWCCA 14
- HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141
- Fantakis v Director of Public Prosecutions (NSW) [2021] NSWCCA 271
- Crane v Director of Public Prosecutions (NSW) [2021] NSWSC 1341
- Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662
- R v Fallon [2017] NSWSC 1796