Mehajer v R [2014] NSWCCA 167

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mehajer v R [2014] NSWCCA 167 Hearing dates: 7 May 2014 Decision date: 22 August 2014 Before: Bathurst CJ at [1]; Johnson J at [197]; R A Hulme J at [198] Decision: (1)Leave to appeal against conviction on Count 1 refused. (2)Appeal against conviction on Count 2 allowed. (3)Order that the conviction on Count 2 be quashed. (4)Order there be a new trial in respect of Count 2. (5)Grant leave to appeal against sentence. (6)Order that the sentence imposed on Count 1 be set aside and in lieu thereof the following sentence be imposed: The appellant be sentenced on Count 1 to a sentence of imprisonment consisting of a non-parole period of 18 months with a balance of term of 18 months, the sentence to date from 18 December 2013. The appellant is to be released to parole upon the expiration of the non-parole period on 17 June 2015. Catchwords: CRIMINAL - appeal - conviction - misdirection in presentation of crown case to jury - whether miscarriage of justice

CRIMINAL - appeal - conviction - misdirection of elements of offence on subsection of s 249B not charged - whether miscarriage of justice - whether proviso in s 6(1) Criminal Appeal Act 1912 (NSW) should apply - whether leave should be granted despite issue not raised at trial - whether new trial or acquittal would remedy miscarriage of justice

CRIMINAL - appeal - conviction - whether verdict for offence charged should be substituted with verdict for offence not charged but which the jury were directed on - different elements of offences - no alternate charge on indictment - s 7(2) Criminal Appeal Act 1912 (NSW)