District Court New South Wales Medium Neutral Citation: R v Mehajer (No. 3) [2023] NSWDC 197 Hearing dates: 01 June 2023 Date of orders: 01 June 2023 Decision date: 01 June 2023 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) Refuse the application for the adjournment of the trial for the applicant to investigate the availability of a witness to speak to the possibility of manipulation of the images in Exhibit X (2) Refuse the application for the issue of subpoenae for the production of documents by the complainant, and for her attendance to give further evidence (3) Refuse the application for release Catchwords: CRIME — Bail — Release application CRIMINAL PROCEDURE — Subpoena — Application refused CRIMINAL PROCEDURE — Trial — Application to adjourn trial to investigate availability of witness Legislation Cited: Bail Act 2013 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Callaghan v R [2006] NSWCCA 58 R v Mehajer [2023] NSWCCA 98 R v Mehajer (No 2) [2023] NSWDC 151 Category: Principal judgment Parties: Salim Mehajer (Applicant) Rex (Respondent) Representation: Counsel: Ken Gilson (Crown Prosecutor) Salim Mehajer (Self-represented) Solicitors: Director of Public Prosecutions (NSW) (Crown) File Number(s): 2020/00369490 & 2021/00016899 Publication restriction: Non-publication order over the identity of the complainant or of any information which may cause her identity to be ascertained JUDGEMENT Introduction 1. On Monday 27 March 2023 the applicant appeared for trial in the District Court, Sydney. After I granted the Crown leave to amend Count Seven in the indictment with the applicant's consent, to accurately reflect the elements for that offence, he was arraigned and pleaded not guilty to each count. 2. The applicant appeared unrepresented. He asked the court to stay the proceedings. I refused the application. [1] I suspended the trial pending determination of the Court of Criminal Appeal upon his application for leave to appeal. [2] 3. The jury were empanelled on 12 April 2023 and excused after preliminary steps in the trial until Tuesday 18 April 2023 to resume, subject to the decision in the Court of Criminal Appeal. The decision there was against him. The trial resumed on that date. The jury retired to consider their verdicts on Tuesday 9 May 2023. 4. On Wednesday 10 May 2023 the jury returned with verdicts of guilty to all counts except for count six, the alternative to count five, for which a verdict was not required. The Offences at Trial 1. The applicant faced the following charges: Count One Between 1 April 2018 and 30 April 2018 at Lidcombe in the State of New South Wales did assault [the complainant]. S 61 Crimes Act 1900 Law part code 64782 Count Two Between 1 April 2018 and 30 April 2018 at Lidcombe in the State of New South Wales did assault [the complainant]. S 61 Crimes Act 1900 Law part code 64782 Count Three Between 30 April 2018 and 5 May 2018 at Lidcombe in the State of New South Wales did assault [the complainant]. S 61 Crimes Act 1900 Law part code 64782 Count Four Between 30 April 2018 and 5 May 2018 at Lidcombe in the State of New South Wales did intimidate [the complainant] with the intention of causing the said [complainant] to fear physical or mental harm. S 13 Crimes (Domestic and Personal Violence) Act 2007 Law part code 70753 Count Five On 4 October 2020 at Lidcombe in the State of New South Wales did assault [the complainant], thereby occasioning actual bodily harm to her. S 59(1) Crimes Act 1900 Law part code 243 Count Six in the alternative to Count Five On 4 October 2020 at Lidcombe in the State of New South Wales did assault [the complainant]. S 61 Crimes Act 1900 Law part code 64782 Count Seven On 4 October 2020 at Lidcombe in the State of New South Wales did intentionally suffocate [the complainant] so as to render her unconscious, insensible or incapable of resistance and was reckless as to causing that result. S 37(1) Crimes Act 1900 Law part code 82221 1. Counts three and four initially pleaded that the offences occurred between 1 June 2019 and 31 July 2019 but when evidence was led from the complainant and witness BG, with reference to messages in a telephone application, it was possible to provide a more precise date range in which the Crown alleged that the offences occurred, and by consent I permitted the Crown to amend. Related Offences 1. Pursuant to s 166 Criminal Procedure Act 1986 five charges for offences contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007 were before the court as related offences within the meaning of that term defined in s 165 Criminal Procedure Act 1986. 2. The applicant sought to have them remitted to the Local Court and after the argument I ruled against that course. Before publication of my judgement [3] the applicant and the Crown came to agreement upon the single offence upon which the Crown would proceed, whereupon on 11 May 2023 the applicant pleaded guilty to the following offence and the Crown announced that it would discontinue the remaining four charges. Sequence H 77477932/1: Between 9:00pm on 27/12/2020 and 3:00pm on 28/12/2020 at Silverwater in the State of New South Wales Salim Mehajer did knowingly contravene a prohibition specified in an order s 14(1) Crimes (Domestic and Personal Violence) Act 2007 Law part code 65020 1. The offence arose from an apprehended domestic violence order. The Applicant's Applications 1. On 11 May 2023, the applicant announced that he needed the transcript of my summation of the trial provided to the jury and intended to file a notice of intention to appeal from the guilty verdicts. He sought release from custody to arrange for an expert to provide evidence in support of his perception that images before the jury by way of Exhibit X were manipulated, or to use his word "photoshopped," with a mobile phone application that could alter images. After discussion he withheld his application for release until he had available a report from the expert witness upon whom he would rely. He identified the proposed expert by his given name, and that he was a former member of the Australian Federal Police. 2. I adjourned to 17 May 2023 for further orders, subject to the applicant providing a report from an expert addressing the facts that he wished to advance. On that date he withdrew the application for release. He advised that he sought a report from psychiatrist Dr Richard Furst for the sentence proceedings. I provided him with a copy of my judgement R v Mehajer (No 2) ibid and agreed facts and the apprehended domestic violence order relevant to the related offence. The proceedings were adjourned to 23 June 2023 for the proceedings for determination of sentence with liberty to apply in the interim if needed. 3. The applicant returned to my court on 1 June 2023 seeking the following: 1. Release to bail; 2. Issue of a subpoena to the complainant for further cross examination upon whether she had "photoshopped" the images in Exhibit X; 3. Issue of a subpoenae for an array of documents, namely: 1 Copies of any document(s), remittance(s), receipt(s), tax-invoice(s) and email(s) which relate to the purchase and download of any Application(s) from any Apply itunes (sic) account and Apple icloud (sic) account used and/or accessed by [the complainant] between 01 September 2020 to 01 April 2021; 2 A 'screenshot' showing all Applications (sic) currently in use and/or contained on any mobile phone or tablet device used by [the complainant] – today; 3 A 'screenshot' of any photo-editing Application (sic) used by [the complainant] between 01 September 2020 to 01 April 2021 and 01 May 2023 to date. 1. The applicant said that he would pose but one question to the complainant in terms of whether she had manipulated the images in Exhibit X. He said he was confident that she would answer in the affirmative faced with the images which he submitted were clearly manipulated, but if she denied that she had done so it would follow that he was not to be believed and he would plead guilty to all outstanding charges against him, excluding the charges of which he was found guilty. 2. After the verdicts of guilty the applicant applied unsuccessfully for release in the Court of Criminal Appeal. He was there told, he said, that the court could not entertain his application in the absence of an unsuccessful application for release in the District Court. 3. The applicant presented the documents he filed in the Court of Criminal Appeal registry and further written submissions. He relied upon the entirety of the material. I marked this Exhibit One in the proceedings for the determination of sentence. 4. The items thus provided and marked were, 1. Notice of Intention to Appeal to the Court of Criminal Appeal signed on 11 May 2023, 2. Supreme Court Bail Application of 11 May 2023, 3. The applicant's submissions on appeal of 11 May 2023 with portions of the trial transcript to which he referred, 4. The applicant's form of affidavit handwritten of 11 May 2023, annexed to which were images of the complainant's arms and portion of the trial transcript, 5. Written submissions to Court of Criminal Appeal Registrar Galanis of 12 May 2023, 6. A written request to the registry of the District Court, Sydney of 23 May 2023, 7. The subpoenae to the complainant to give evidence and produce documents, 8. Written submissions of 30 May 2023. The Legislation 1. The Bail Act 2013 now limits the opportunities for release after conviction following a trial on indictment. S 22B provides, (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court— (a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5) In this section— "conviction" also includes a plea of guilty. Note— "Conviction" is defined in section 4(1) to include a finding of guilt. 1. The offence charged in count seven, of which the applicant was found guilty, is a "show cause" offence by force of s 16B(1)(e)(i) Bail Act, as a serious indictable offence under Part 3, Crimes Act 1900, the test the court must apply here is specified in s 22B(1)(a). 2. The maximum penalty for an offence contrary to s 61 Crimes Act 1900 is imprisonment for two years. 3. The maximum penalty for an offence contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 is imprisonment for five years and a fine represented by 50 penalty units. 4. The maximum penalty for an offence contrary to s 59(1) Crimes Act 1900 is imprisonment for five years. 5. The maximum penalty for an offence contrary to s 37(1) Crimes Act 1900 is imprisonment for ten years. 6. There is no standard non parole period specified for any of these offences for the purpose of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999. 7. The maximum penalty for the related offence of knowingly contravening a prohibition specified in an order contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007 is imprisonment for two years and a fine represented by 50 penalty units. 8. Evidence for assessment of sentence is yet to be presented, but from what the applicant said his submissions will include reference to assessments by psychiatrists and psychologists who offered opinions that he is impaired by bipolarity, for which he told the court he has not been adequately medicated in custody. I reviewed reports that were tendered in the applicant's application to stay the trial, which if accurate offer support in mitigation of penalty to which the applicant might otherwise be exposed. This is not a concluded view for there is much yet to be argued upon the significance of those reports, if the applicant relies upon them, but for present purposes, taking the opinions at their highest to the applicant's benefit, it remains that in the absence of demonstrated contrition or remorse I would expect that the applicant will suffer a sentence of imprisonment to be served full time, imposed as an aggregate sentence in accordance with s 53A Crimes (Sentencing Procedure) Act 1999 upon findings as to the sentences for the individual offences of which the applicant was found guilty, with appropriate concurrence and accumulation to reflect the principle of totality and the court's discretion as to the commencement of the sentence considering the sentence currently served. [4] The Applicant's Submissions 1. The applicant submitted that there were special or exceptional circumstances upon which the court would find that he ought to be released to bail, if not until the determination of his appeal from the convictions, at least until the 23 June 2023 when sentence is to be decided. 2. The foundation of his argument is that by reason of his incarceration and solitary confinement he is faced with insurmountable difficulties pursuing Legal Aid and gathering what he suggested is fresh evidence by way of an expert and the images which he asserts were manipulated. 3. The applications for Legal Aid are for his next trial listed to commence in the District Court, Sydney on Monday 19 June 2023. He said he received a letter on 30 May 2023 from Legal Aid regarding this but there was one question he could not answer, namely, the provision of bank statements from his account with HSBC. He does not know the account numbers which he could retrieve if he had the SIM card from his phone which was lost by the complainant, according to what he said the police told him. 4. In the course of discussion referring to other means of identification which his authorised agent could provide the bank, such as his sister who has been providing him with assistance from time to time, he conceded that this was not such a difficulty. 5. He maintained that he could not overcome the difficulty he faced from his circumstances arranging evidence of the manipulation of the images in Exhibit X. 6. Since the announcement of his intention to make use of the former federal agent for this he said he was advised this person could not assist him, and therefore he would need to investigate the availability of another expert to address these questions. He had not begun that task and submitted that he is limited by his custody in doing so. He is emphatic that the complainant altered the images, however at its highest this is his opinion based solely upon his perception of what the images depict. He was informed that for a definitive opinion an expert would require access to what he said was the "Actual Image File" for the subject images, when all that he had been given was the "Joint Photographic Experts Group" file. These terms he said would be understood by the expert called in the Crown case, Sergeant Catto-Pitkin. 7. The differences between the two appears to be that the "Actual Image File" would be expected to be the original recording of the image suitable for an expert to examine to assess whether there was manipulation, but that the "Joint Photographic Experts Group" file is unsuitable due to the process for its creation. 8. During the trial the Crown provided the applicant all that the complainant said was available on the iCloud where these images were stored but undertook to confirm whether there were "Actual Image Files" and if so, to provide them electronically to the applicant for such use as he might wish to make of them in preparation for his intended appeal from the convictions. 9. It is not for this court to embark upon an analysis of whether the applicant ought to have the opportunity to pursue this argument in the Court of Criminal Appeal, including whether this is fresh evidence that was not available to him before or during the trial. However, the applicant conceded that his concerns arise from his perception that the images appear to him to have been altered, that he gave no evidence in the trial, and that he was aware of images of the complainant's arm with apparent bruising from when he was interviewed by the investigating police on 20 January 2021. This arose at question 146 et seq in the ERISP during which at question 162 et seq the police showed him an image on her phone which he acknowledged to be a bruise on her arm for which he was not responsible. 10. Exhibit X is a series of images tendered and marked through Sergeant Catto-Pitkin on 4 May 2023 at page 815 of the trial transcript. They were formerly marked for identification 66 and 67. These images were located by Sergeant Catto-Pitkin and produced to the court and the applicant in the absence of the jury that same day at page 801 of the trial transcript. The discussion begins at page 800 when the Crown said at line 37 that the sergeant had located all of the images from the iCloud account maintained by the complainant. The images thus harvested included images of the complainant's arm with apparent bruising, and text messages. MFI 67 was further images of the complainant's arm located by the Sergeant upon his investigation of the iCloud account. This item was marked at page 813 of the transcript. The applicant cross-examined the Sergeant upon these items commencing at page 822. 11. On 5 May 2023 at page 885 of the trial transcript the applicant announced his wish to call the former federal agent as an expert. The exchange initially in the presence of the jury but thereafter in their absence included (with my emphases), HIS HONOUR: Yes, Mr Mehajer, do you have any other evidence you intend to call? ACCUSED: Your Honour, there's a potential expert evidence that I - expert witness I need to call. HIS HONOUR: Who's that? ACCUSED: His name is Gary from MCCA but what I need - excuse me. What I need to understand is whether he's a Photoshop expert as well. HIS HONOUR: No, no, no, there's no need for you to give a description of what you anticipate you might ask him. What arrangements are there for him to be here? ACCUSED: I need to make that phone call through assistance of the Court, whether he can - we can have a chat to conference before we call him up on the screen. HIS HONOUR: We might have an early morning tea, ladies and gentlemen, and we'll see if we can move this along. IN THE ABSENCE OF THE JURY HIS HONOUR: So, you're proposing to call an expert witness? ACCUSED: Yes, your Honour. If - as I said, these-- HIS HONOUR: There's a couple of things to establish first of all. This is a witness who you say is an expert witness? ACCUSED: He's a Cellebrite expert witness. HIS HONOUR: All right. Do you know what his qualifications and experiences are? ACCUSED: My understanding, he's a former officer from the Australian Federal Police. He now works for MCCA, don't know what that stands for. Initially, it was called off because there was an agreement between the Crown and I that we come to agreed facts about the, the evidence from this expert, so-- HIS HONOUR: What are you going to ask him then that's going beyond the agreement that was reached about issues in the trial? 1. The applicant then discussed his perception of the evidence given by Sergeant Catto-Pitkin regarding what was called the "mother board issue," which the applicant suggested was not a common occurrence. The Sergeant had given evidence that difficulty applying the Cellebrite tool to the phones provided to police could be explained by events causing damage to the mother board and how that might occur. ACCUSED: The first question I'll be asking him is about the motherboard issue. ACCUSED: What I disagree with the police witness - sorry, the police expert is the mobile motherboard is not a frequent issue. It's quite rare, I believe and understand, so I wanted to understand whether that is true and correct, and also, I want to understand more, how does a motherboard-- HIS HONOUR: It's not a question of what you want to understand, Mr Mehajer. It's a question of what evidence you want to put before the jury. Have you had a conference with this person to ascertain what evidence they might give in the trial? ACCUSED: No, I haven't, personally. HIS HONOUR: When did it occur to you that you might want to call expert evidence upon this issue? ACCUSED: The moment I notified the Court would've been Monday this week. HIS HONOUR: Sorry, that you notified the Court on Monday this week? ACCUSED: Yes, so I notified this Court Monday this week about a potential expert witness. That's when the Court said, "You may have to come up with an agreed facts between yourself and the Crown to save time"-- HIS HONOUR: That was in response to your document identifying matters that you wanted to have resolved. ACCUSED: Correct. HIS HONOUR: And you agreed with the course that was proposed that the matters that you raised in that document could be addressed without the need for more time spent unnecessarily, and agreement was reached upon those matters. ACCUSED: That's correct. HIS HONOUR: This appears to me to be further material or further exploration of what was said by Mr Catto-Pitkin. Am I correct? ACCUSED: That is correct. HIS HONOUR: And it's in response to the evidence he gave regarding, at this point, the motherboard and how it might be compromised on a handset mobile phone. ACCUSED: Precisely, yeah. Correct. HIS HONOUR: How is this proposed witness going to take that evidence any further that might assist the jury? ACCUSED: It's my - well, my submission that the complainant had tampered with her mobile phone. HIS HONOUR: How do you know that? ACCUSED: Well, what I say is the mobile was intact and the motherboard was damaged, and I just want to understand, how does a motherboard get damaged if there's no actual physical damage, fire or-- HIS HONOUR: That was explained by Mr Catto-Pitkin. It can be because of a surge of electricity when it's plugged in to be charged. It might be water penetration causing corrosion that might not be seen by the naked eye. It might need microscopic examination. He went through an array of factors that might impact upon the compromise of a motherboard. You have nothing to indicate one way or another whether the motherboard was in fact compromised. All that's known is that the phone was not functioning and perhaps it was the motherboard that was not functioning. ACCUSED: Yes, and the only point - you're right, your Honour. The only point I can take from any other expert witness, whether this issue is a rare issue or it's a frequent issue. HIS HONOUR: Well, what are the - I'd like you to itemise it. He's an expert witness. He's not a witness giving evidence of the facts that are underpinning the charges. As an expert witness, you ought to have provided information to the Court and to the Crown which would describe what evidence was anticipated from the expert so that the Crown would have the opportunity to meet it, if necessary, in the Crown case. This is being introduced late in the day-- ACCUSED: Yeah. HIS HONOUR: --in respect of matters that were, I thought, explored by you fairly thoroughly in cross-examination and elicited answers that you didn't challenge from the witness when he gave evidence. You seem to have had some realisation afterward that there might be some other area of exploration that you could pursue without any basis upon which to assist the Court with anything that might be seen as other than speculation or hopeful anticipation. So, let's go back to the first question. You've not conferenced this person at all. ACCUSED: No. HIS HONOUR: You know of him from-- ACCUSED: Yes. HIS HONOUR: --some other area. ACCUSED: Yes. HIS HONOUR: I won't ask you what that is, but you know of him from some other set of circumstances. ACCUSED: Yes. HIS HONOUR: You don't know what he might say to you at this stage. ACCUSED: No. Your Honour, just, just to be clear about this motherboard issue, I would not be raising this question if it wasn't for recent photographs I received yesterday that I say they have been Photoshopped. The motherboard is just a supplementary question I'll be asking. It's not exclusive-- HIS HONOUR: But how is the motherboard going to assist the resolution of that point that you want to raise about the images? ACCUSED: It isn't at all. It's just a separate issue. HIS HONOUR: Just remind me. I want to make sure that there's no misunderstanding on my part. The three images that were introduced yesterday that came from Mr Catto-Pitkin; they are replications of what exists in other images. Is that right? If you go to exhibit G, D, all of those other exhibits that were the subject of his evidence, what he produced yesterday in those three - on pages 12 and 13 of the exhibit X, they're just further copies that he uncovered in the course of-- CROWN PROSECUTOR: First of all, I know the three images I think are different angles of the arm. Whether they're-- HIS HONOUR: Well, the question is, are those three images found in other exhibits that have already been put before the jury? ACCUSED: Exhibit G. CROWN PROSECUTOR: For instance - okay. So, your Honour, on page 13 of exhibit X, we have the one that shows the letter "C" on the back of the - or back or front of the complainant's shirt. Even she wasn't able to say whether it was front or back, so that replicates page 6 of exhibit G. HIS HONOUR: Yes. CROWN PROSECUTOR: The other two - neither of the other two show - yes, one shows that letter but at a different angle. We're just going through the - the original cropped photo that appeared in exhibit E, that's the time when Mr McGahon photographed the complainant's phone way back in 2021, appears to be possibly even again a different photo. So the conclusion I drew was, without looking at it in great detail, was that she's taken numerous different photos and potentially numerous different screenshots. HIS HONOUR: That answers one question I have regarding whether there should be further opportunities to prevent (as said) further copies of the photographs to the jury. I'll leave that for Mr Mehajer to develop on the existing exhibits, I think. Mr Mehajer, when you say the images appear to you to have been Photoshopped-- ACCUSED: Yes. HIS HONOUR: --in what way do you say they were Photoshopped-- ACCUSED: Your Honour, firstly-- HIS HONOUR: --apparently? ACCUSED: Yeah. If these photos are not Photoshopped, I'll plead guilty to every single charge that has - that's under my existence. These photos are completely Photoshopped. The first photo that's on page 13 is the original photo. It's the same angle. And page 12 is the exact same photo and it's been, (a), cropped, and the arm's been exploded. It's completely Photoshopped. It's, it's - there's an app on the iPhone that can, can do that within a number of seconds. HIS HONOUR: Are you talking about the - it's not an application on the iPhone, it's a capacity the iPhone has to crop and enlarge or focus upon particular parts of a photograph that might be captured on the phone. That's what you're referring to? ACCUSED: Yeah, there's two, two parts to that answer. HIS HONOUR: If you open up - just let's cut through this. If you open up an iPhone and you look at an image on the photo gallery-- ACCUSED: Yes. HIS HONOUR: --you can then focus on a part of the image-- ACCUSED: Yes. HIS HONOUR: --to produce a separate image of the same area? That's what you're talking about? ACCUSED: Your Honour, no. So what I'm talking about is on the iChoose store, you can purchase an app. That app edits photos, enhances photos. It appears that that app was used to manipulate this photo. HIS HONOUR: Why do you say that? ACCUSED: Number of reasons. Firstly, the discussions I had with the complainant on or around 2020. HIS HONOUR: What discussions? Were these discussions you asked her about in your cross-examination? ACCUSED: Yes. One of them was about the bruising being shown in relation to having surgery and being accused-- HIS HONOUR: She answered that. ACCUSED: Yes, she answered that, your Honour, but your Honour, just please bear with me one second. I'm not getting accused here of something I didn't do. I'm not accepting responsibility. HIS HONOUR: That's what you say and you're defending the charges, but let's focus upon the question that needs to be resolved according to this. Your first proposition that you advanced earlier today was that in the three photographs on pages 12 and 13-- ACCUSED: Yes. HIS HONOUR: --the first photograph you've considered overnight appears to be different to the other two because there appears to be not swelling, but the arm doesn't appear to be as thin in the second two photographs when compared or contrasted to the first of the photographs on pages 12 and 13. That was the point you made. ACCUSED: That's a simple way of putting it, yes. HIS HONOUR: Yes. Now, that might be explained by whether or not she had her arm lifted away from her body or against her body to cause the tissue to present as it does in the first of those three photographs. ACCUSED: Your Honour, you're sounding like a Crown Prosecutor right now. HIS HONOUR: No, no. No, no, no. You need to persuade me that I should delay this trial further while you have another opportunity, having reflected on some fresh material that's come to you in your mind overnight, whether I should delay this trial further, bearing in mind we've been here for a significant period of time already. Now, I'm giving you the opportunity to explain to me why I should let you do this. ACCUSED: Sure. HIS HONOUR: You've come up with a proposition that she's obviously Photoshopped the images. Nothing was said to her about this in the cross‑examination. You're speculating about the use of an application that might be available at the app store. You referred to an application which is available on the phone, and there is an opportunity on any iPhone to adjust an image by increasing size or even changing the texture of the colour-- ACCUSED: Yes. HIS HONOUR: --and the tonings of the colour by looking at an existing image and reduce the size of the overall image, focussing on a particular aspect of an image. Whether or not that occurred, there's no evidence one way or another. You simply want to put to the jury that there is evidence and it's obvious that that occurred. I don't know that that's a proper submission to make. If you want to call evidence, you persuade me why I should allow you the opportunity to take further time to have an expert to consider this material and then come forward with it. ACCUSED: Yes, your Honour. Firstly, I apologise for the remarks earlier. So your Honour, these images I only received yesterday. HIS HONOUR: By the way, I take offence at your remark that I'm speaking like a Crown Prosecutor. I have taken great steps to make sure that you have every opportunity to present your case. I've given you a great deal of latitude with cross-examination, much of which was objectionable, and I've given you documents and guidance with what you will be able to do with the jury when you address. ACCUSED: That's why I said I apologise for those remarks, your Honour. HIS HONOUR: Yes. ACCUSED: I recognise that and it shouldn't of been said. But back to the images, your Honour. These images were only received yesterday at approximately 2pm and these images were only provided to me because I had requested them from the iCloud account, and yes, it did take me a couple of hours to recognise that these images have been manipulated, but I'm no expert in Photoshop or the app but it's clearly obvious of why I say tha. You got the wall, that's-- HIS HONOUR: In response to what you've just said, if you go to exhibit G page 4, that is an image with the number 0422. ACCUSED: Yes. That's correct. HIS HONOUR: That is the image number of the third of the three photographs on pages 12 and 13 of exhibit X. Immediately before that is 0421, which is very comparable to 0422, and immediately before that there is 0420 with the same presentation of clothing, a consistent mark on the front of the garment with that which is to be seen in the other two photographs. There's the pink and white bedclothes and the only contrast between the two is that the arm in the first of the three photographs appears to be larger in its girth compared to the other two photographs. That might be explained, as I said, by the way the arm is being held. I'm not arguing the point before the jury. I'm simply raising the point for your consideration. ACCUSED: Yes, your Honour. I think the easy way around this is if we have the complainant, ask her that one question; that is, are these photos-- HIS HONOUR: Why should I have the complainant return to be asked a question about this point? ACCUSED: 'Cause these were unfortunately missed and-- HIS HONOUR: Yes. No, I'm not going to grant that application, Mr Mehajer. ACCUSED: Your Honour, you understand how critical this is, right? HIS HONOUR: Whether she Photoshopped these images-- ACCUSED: Absolutely. HIS HONOUR: --which is purely, purely conjecture on your part? ACCUSED: Your Honour, I'm saying that if we give - if you give me the opportunity just to ask her via video link one question, that is, are these images manipulated, yes or no? HIS HONOUR: She's already answered that question, by the way. She was asked yesterday whether she'd done anything to manipulate messages or change messages or change the material produced and presented to the jury and she denied it. ACCUSED: Your Honour, that's messages. I'm talking about just these images, that if we put these images on the scanner-- HIS HONOUR: You asked her questions about the colouring of the marking on her arm, did you not? ACCUSED: We did ask about the colouring, your Honour, but-- HIS HONOUR: And what was her response to that? ACCUSED: She provided them to police. They're something - words to the effect - I'll just try to find it. My key word isn't working but the key words is "police" from yesterday's transcript. It should come up. HIS HONOUR: Try the Word document, Mr-- ACCUSED: Mine isn't working. HIS HONOUR: You've got both Word and PDF? CROWN PROSECUTOR: My solicitors just referred to the cross-examination on 831, your Honour, which is relevant. HIS HONOUR: 831? CROWN PROSECUTOR: 831, including the accused asking: "Q. Is there any reason as to why you did not produce to police all three images located on your iCloud in relation to your bruised arm? A. I thought that I did." One would expect that if she had Photoshopped them for some sinister purpose she would've made them available rather than having them prised from her by the police making yet another inquiry, but in any event, he did cross‑examine on the photo. She said the photo was taken hours after the incident, in relation to the bruise on the arm. 1. The applicant persisted in his opinion that the images were manipulated, whereupon I announced that I would not grant his application to adjourn the trial. 2. I remain of the view I formed that it could not be said that the images were obviously "Photoshopped", adopting the term the applicant used. I informed the applicant that he could put that submission to the jury, nonetheless. 3. I announced that I would not adjourn this trial or allow the applicant to continue another investigation into the area outlined and would not require the complainant to return once more to answer further questions in cross-examination, considering the extent of the cross‑examination she faced and the array of questions asked upon the images taken of her arm. 4. I explained that the applicant may say to the jury that they can consider the images in exhibit X and whether there was some manipulation of them to create a false impression of what is depicted. I noted that it was unclear which of the images he targeted, but nonetheless he could make that comment if he wished. 5. I warned him against extending his submissions into representations tantamount to advancing facts in the absence of evidence of their existence. He acknowledged that he understood that he should not do so but advanced the alternative proposition of a demonstration to the jury a "cell device" which I understand was a reference to a mobile phone, to show how the images were manipulated. This he said he would achieve with an application the phone and presenting on the screen what he would say the complainant had done. He offered that upon my lack of understanding I would not appreciate that on such as Instagram a woman might pose and curve her body to the shape she desired to represent, and that this complainant had the talent to do so. 6. This proposition was no more than speculation in the absence of any basis upon which it could be known that the complainant had done any such thing. The applicant conceded that he was not an expert but pressed on with the argument that the images upon their face were manipulated, reflected in what he said was the stretched complainant's shirt and warped walls as presented in the images. 7. I have reviewed these exchanges and upon reflection it might be that the applicant was asserting that each of the three images he was targeting were in his perception manipulated regardless of contrasts and comparisons that might be thought to be present when each is compared against the others. When given the opportunity to explain further his thesis was [5] , ACCUSED: Yeah, sure. If you go to page 12, your Honour, the first image - actually, can we please work backwards because that way you can understand? The first image is image number 13. That is the original image, your Honour. Now if you go up to page 12 on the right, there the complainant appears to have stretched her arm on, on the upper, upper part of the arm and you can stretch the back as well. Then the image on page 12, the first image, the shirt has been tightened. So what happens in these apps, when you stretch the skin the, the shirt becomes tight. So as you can see, it's completely tight above and it's, it's warped. So the original image is on page 13 and it's cropped and adjusted and straightened to reflect three different images. When it's one image-- 1. I suggested that the flaw in the argument was found in the sequence in which the images were exposed according to the data. The sequence was 420, 421 and then 422 not in reverse as the applicant chose. The applicant demurred. 2. I suggested further that the images were such as to indicate that the lens of the device was not constantly positioned at the same angle for each of them. Once more he reminded me that I did not understand how the application that he thought could have been used by the complainant operated. I asked him again to explain to me how using the "Photoshop" application the manipulation which he suggested might be achieved. He responded [6] , ACCUSED: Absolutely, your Honour. This is, this is completely Photoshopped. You see, you see women on Instagram and they look one thing, then they look completely different and this is, this is how it is. And your Honour, about the numbering, I was - I'm actually— 1. After further exchanges to focus upon the question I put to the applicant he continued, [7] ACCUSED: Okay, your Honour. I'm going to use - which, what, which photo? Number - well, page 12 is an example, the first image, as, as an example of how that's been manipulated. The original is 13 and I'll tell you how it's been manipulated. The arm, your Honour, has been stretched, stretched and it's been cropped and that pink sponge has also been stretched. It's completely manipulated and the Crown knows it. … ACCUSED: Yes, and your Honour, I - now I'm speaking to you like as if I'm giving evidence. She's done it to my photos myself. HIS HONOUR: You're persuading me whether I should let you call evidence and I'm not yet persuaded that I should. ACCUSED: Your Honour, I promise you she would say she's edited it. I'm telling you she will. Like it's - she knows she's been caught out and just give me the opportunity to call her and say, "Have you edited these photos?" That's— 1. I took the morning adjournment and upon return sought from the applicant what he wished to say in support of his application to recall the complainant and have time to ascertain what an expert might say about the images. 2. He submitted his hope that he might achieve his outcome without an expert by speaking to the witness and cross-examining the complainant. 3. I refused the application to recall the complainant for the purpose offered with my reasons to follow and brought to the applicant's attention the content of the information box on each of the images with the particulars of the image number, and the time and other particulars that might provide information relevant to the perception he claimed to have of the images. 4. The applicant had sought the details of the IMEI numbers for each of the mobile phones seized by police to see whether those on the phone were as described in evidence the day before, and to confirm that these were his mobile phones. Discussion followed as to the reasons for this. The Crown's Response 1. I sought from the Crown submissions upon whether the applicant should have the opportunity to spend the remainder of day researching a further expert on what he anticipates or hopes might reveal an opinion that there's been "Photoshopping" of the images. The Crown submitted that there was nothing in the naked photos to suggest or to raise that suggestion beyond mere speculation, and it was entirely possible that images were taken at different distances, with different light in each photograph, which could indicate amongst many things that the complainant was turned away from the light or into the light, with shadowing effect. 2. The Crown submitted: 1. The applicant's application generally, including as to motherboards and his complaint that his and the complainant's phones were not made available is a matter upon which he can address and there can be no change regarding those facts and circumstances. Evidence regarding the phones was called and the expert called in the Crown case cross-examined. It is apparent that the jury could not be assisted to know exactly why the phones could not be interrogated using Cellebrite. 2. As trial judge I will be expected to give appropriate directions concerning the potential loss of evidence and detriment the applicant has suffered as a result. Implicit in this is the proposition that the jury would include the applicant's loss of forensic advantage when deciding whether the Crown has proven his guilt. 3. An expert could do no more than speculate about the phones, because it is unknown why they are disabled. 4. The motherboard issue is irrelevant considering that the applicant has from the expert witness called evidence that there is at least a possibility that someone such as the complainant, depending on her expertise and her knowledge, might have been able to insert messages or delete messages within the array of messages produced by way of screen shots. 5. No expert, from what the applicant said he anticipates, could add to that evidence or to the weight of the evidence. 6. Nothing was shown by the applicant which could add to his case upon those issues. Consideration 1. During argument I announced that I would not grant the applicant's application to have the complainant return to court for cross-examination upon whether she manipulated the images in Exhibit X. She was extensively cross-examined by the applicant and was from an early stage in the investigative process aware that she complained of bruising to her arm, depicted in images shown to him in the course of the ERISP and which he acknowledged. His assertion that when faced with the images and what he said was his perception that they were altered that she would admit that she had altered them to his disadvantage was fanciful. 2. I announced that I would not delay the trial to allow the applicant the opportunity to investigate the availability of a witness to consider his proposition that these images were "Photoshopped." I referred to s 135 Evidence Act 1995, which provides, The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might— (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. The nominated basis was that it was unknown what evidence there might be if the applicant undertook the proposed investigation, which of itself would involve a significant loss of time. My spur of the moment reference to this ignored that the section is predicated on the decision whether to refuse to admit evidence which must be assessed for its probative value measured against the danger that it is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Crown, or be misleading or confusing, or cause or result in undue waste of time. 2. It could not be known what the probative value of the evidence might be, since there was no expert retained to offer an opinion that the applicant might wish the jury to have for consideration, and hence no evidence of that opinion or the facts and assumptions upon which it might have been reached. At best the applicant had the hope that his perception of manipulation might be confirmed, or at least shown to have been, possible with use of an enabling application. There is no evidence that there was ever such an application on any phone used by the complainant. 3. The evidence of the images was before the jury and gave the applicant the opportunity to address upon them identifying characteristics which he asserted were to be seen. Moreover, the expert called by the Crown conceded that the telephone text messages could have been manipulated if the complainant had the skill and knowledge to do so. She denied that she had done so. There was no material put before the jury as to what messages might have been added to the phone record, or withdrawn from the phone record, to define precisely what the applicant alleged of the complainant regarding text messages. I do not overlook that the evidence from the expert on this did not extend to the manipulation of images. Decision 1. I remain unpersuaded that it was appropriate to delay the trial to allow an investigation by the applicant in the hope that it might reveal an expert willing to assert that the images as they were presented might have been manipulated by the complainant to the detriment of the applicant in these proceedings. 2. I remain unpersuaded that it was appropriate to issue subpoenae for the complainant to attend court in these proceedings to give evidence and to produce the items the applicant seeks. 3. I remain unpersuaded that it was appropriate to release the applicant to bail pending the proceedings for the determination of sentence, or until his appearance in the Court of Criminal Appeal. The purposes for which the applicant sought release do not amount to special or exceptional circumstances. 4. I would not allow the applicant to enact a demonstration on a mobile phone to demonstrate how with whatever application he chose he could manipulate images. The probative value of any such experiment or demonstration is limited by the absence of any basis upon which to assess the relevance of the application or applications to which the applicant might have wished to resort for this purpose and was clearly and substantially outweighed by the danger of unfair prejudice to the Crown, and the potential to be misleading or confusing, premises almost entirely on the applicant's conjecture [8] . Orders 1. My orders: 1. I refuse the application for the adjournment of the trial for the applicant to investigate the availability of a witness to speak to the possibility of manipulation of the images in Exhibit X. 2. I refuse the application for the issue of subpoenae for the production of documents by the complainant, and for her attendance to give further evidence. 3. I refuse the application for release. ********** Endnotes 1. R v Mehajer [2023] NSWCCA 98. 2. Mehajer v R [2023] NSWCCA 101. 3. R v Mehajer (No 2) [2023] NSWDC 151 4. Discussed by Simpson J in Callaghan v R [2006] NSWCCA 58 5. Trial transcript p 895 from line 36. 6. Trial transcript p 896 line 23. 7. Trial transcript p 896 line 43. 8. S 135 Evidence Act 1995 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2023