Mashayekhi v R

Court of Criminal Appeal (NSW)|2021-03-29|Before: Hoeben CJ, Wilson J, Hamill J, Rothman J

Judgment

HOEBEN CJ at CL and WILSON J: On 29 March 2021 the Court heard an application for bail filed by Amin Mashayekhi, the applicant, reserving its reasons for decision until today.
The application was made to this Court because the applicant has filed a notice of application for leave to appeal against his 2017 convictions in relation to five offences of which he was found guilty by a jury after trial. The offences, all of which are under the Crimes Act 1900 (NSW), are as follows: one count of demanding money with menaces contrary to s 99(1); one count of intentionally delivering a document containing a threat to kill contrary to s 195(1)(b); two counts of intentionally damaging property by fire contrary to s 195(1)(b); and one count of intentionally damaging property contrary to s 195(1)(a).
The offences all followed a soured business deal in which the applicant lost money. They targeted the man the applicant blamed for his business losses.
On 8 December 2017 the applicant was sentenced by his Honour Judge Frearson SC in the District Court, with an aggregate sentence of 7 years and 6 months imposed. The sentence commenced on 8 September 2017, and expires on 7 February 2025. A non-parole period of 5 years was fixed, expiring on 7 September 2022.
There is a jurisdictional question that attaches to the application for bail, as the applicant does not have substantive proceedings pending before this Court that would enliven the Court's jurisdiction to hear and determine a bail application, pursuant to the power provided by s 61 of the Bail Act 2013 (NSW). It is appropriate to consider the jurisdictional question first.

The Application for Bail

Although the applicant submitted that, as a (now) self-represented litigant he had done his best to comply with the time limitations set by the Rules, that is not a feature that alters the statutory position. Even if it could, and the Court had the power to hear and determine a bail application, we would have determined that the application for bail should be refused.
Bail applications made by persons convicted and sentenced and who are awaiting the determination of an appeal against either or both have an additional and preliminary hurdle to meet to those potentially posed by Part 3 of the Bail Act. Such an applicant must first overcome the barrier constituted by s 22 of the Act. In El-Hilli and Melville v R [2015] NSWCCA 146 Hamill J, with the agreement of Simpson and Davies JJ, said at [13]: "First, where s 22 is engaged, there are two stages. The applicant must demonstrate that "special and exceptional circumstances exist justifying the [decision to grant bail]". Then the Court must apply the "unacceptable risk test" and do so by application of the exhaustive list of matters set out in s 18."
Section 22 is not an insignificant hurdle. It provides (relevantly): 22 General limitation on court's power to release (1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision - (a) an offence for which an appeal is pending in the Court of Criminal Appeal against - (i) a conviction on indictment, or (ii) a sentence imposed on conviction on indictment
In R v Williams [2020] NSWCCA 348 the rationale for the statutory hurdle was explained by Campbell J, with the agreement of Simpson AJA and Bellew J, thus: "In Re. Clarkson [1986] VR 583 at 584, the Full Court of the Supreme Court of Victoria wrote of "the difficulty of persuading the court that the circumstances put forward as special or exceptional are strong enough to overcome the powerful considerations of a general character which militate against the grant of bail pending appeal". Some of those "considerations of a general character" were addressed by the High Court of Australia in United Mexican States v Cabal (2001) 209 CLR 165;[2001] HCA 60 at [39] - [40]. The Justices said of a grant of appeals bail: In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex parte Maher [1986] 1 Qd R 303 at [310], to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned: makes the conviction appear contingent until confirmed; places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; encourages unmeritorious appeals; undermines respect for the judicial system in having a "recently sentenced man walking free"; undermines the public interest in having convicted persons serve their sentences as soon as is practicable. Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances. Obviously, after conviction and sentence, the presumption of innocence has been rebutted and the general right to be at liberty has been abrogated by the passing of sentence" (at [9]).
In oral submissions to the Court the applicant argued that his circumstances are both special and exceptional. He submitted that his trial miscarried principally due to the misconduct of his counsel, and his appeal against conviction is thus bound to succeed. Further, he argued that, as a self-represented appellant, he is prejudiced by his inability to properly prepare his case from custody, a circumstance that demands he be granted his liberty.
In Obeid v R (No 2) [2016] NSWCCA 321 the Court (Bathurst CJ, Hoeben CJ at CL and R A Hulme) observed at [17] that it is inappropriate to give any detailed account of an applicant's prospects of success on appeal when determining an application for bail because the argument on such an application can never be as fully developed as it might be, and the Court is confined to reaching only a broad overall view of an applicant's prospects of success: R v Ambury [2017] NSWCCA 115 at [36]. The first of those features has particular resonance here.
The applicant has raised three proposed grounds of appeal against conviction, being (in summary) complaints that a stay application filed with the District Court was not determined (ground 1); that the applicant's counsel did not allow him to fully advance his case at trial (ground 2); and that the applicant was not given the opportunity to be heard by the jury (ground 3). The submissions advanced in support of each of the three proposed grounds refer extensively to the negligent or incompetent conduct of the applicant's counsel at trial. Those complaints cannot be properly assessed in the present context, as the material available to this Court is inadequate for the purpose.
The transcript of the trial proceedings was made available to the Court, but it does not at first blush appear to bear out the applicant's complaints. The Court was advised that trial counsel and his instructing solicitor have each been asked to provide an affidavit addressing the applicant's complaints, but that evidence is not presently available. The process of preparing an affidavit will take some time, having regard to the passage of 3 years since the relevant events, and the need for the previous legal representatives to consult the transcript and file. In the absence of the evidence that it is anticipated will be placed before the Court hearing the proposed appeal, it is not possible to conclude that the applicant will, as he contends, inevitably be successful.
As to the second feature relied upon to address the requirements of s 22 of the Bail Act, the difficulties the applicant has in preparing his case from custody, that feature is neither special nor exceptional. Regrettably, these difficulties affect all appellants who are incarcerated, and particularly those who represent themselves. That was acknowledged in Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102, where the Court (Harrison, R A Hulme and Wright JJ) said, at [33]: "Mr Samandi also raises the question of his ability properly to prepare for his appeal in his present custodial situation. As difficult and unfortunate as may be the position in which he finds himself even, or perhaps particularly, as an unrepresented party, these are matters that confront all inmates in his position. We do not consider that these difficulties or his custodial situation are matters that qualify as special or exceptional circumstances standing alone."
Although the difficulty is acknowledged, it is noted that in the applicant's case it has not prevented him from filing extensive submissions in support of both this application and his proposed appeal, which reference a range of law and authority.
We are not persuaded that the applicant can establish that special or exceptional circumstances exist to justify a grant of bail.
Thus, even had the Court had jurisdiction to hear and determine the bail application, we would have refused it.

orders

The orders of the Court are: 1. Application struck out for want of jurisdiction
HAMILL J: I have had the considerable advantage of reading the joint judgment of Hoeben CJ at CL and Wilson J.

The jurisdiction issue

I agree with Hoeben CJ at CL and Wilson J that, in the absence of an extension of the Notice of Intention to Appeal, the proper application of the provisions of the Bail Act 2013, Criminal Appeal Act 1912 and Criminal Appeal Rules lead to the conclusion that the Court lacks jurisdiction to determine the applicant's release application. I can find no fault in their Honours' tracing of the relevant provisions although the result is a surprising and troubling one. A not dissimilar issue of jurisdiction arose in the case of Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 ("Noufl v DPP") where I dismissed an application for want of jurisdiction while sitting in the bail list.
The applicant has filed extensive written submissions and the "appeal" is listed for hearing on 25 June 2021. The extensive delay and series of applications to extend the notice of intention to appeal is traced by their Honours at [6]-[8]. The respondent accepts that the Court hearing the case on 25 June will have the power to extend the notice of intention to appeal, or otherwise grant leave to appeal out of time, and to hear the appeal on its merits. As a matter of practical reality, and in accordance with authority, the Court will assess the merit of the appeal in determining whether to extend time: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [33].
In two cases decided in the bail list, Rothman J held that the Supreme Court has "inherent jurisdiction" to hear and determine any release application: R v Yaghi (Unreported, Supreme Court of NSW, Rothman J, 1 July 2014) and R v Jefferys (Unreported, Supreme Court of NSW, Rothman J, 17 December 2014). I attempted to summarise his Honour's reasoning in Noufl v DPP: "50. [In R v Yaghi, Rothman J] traced the history of bail and the power of 'Superior Courts and Courts of Assizes' to order the release of prisoners to bail back to 1450 AD. His Honour showed that 'by the mid to late 1600s and certainly by the mid 1700s bail was an inherent power of the courts of Westminster.' Thus, when this Court was established in 1824 by the Third Charter of Justice, the power to grant bail was an inherent part of its jurisdiction inherited from the Courts of Westminster. His Honour noted that the inherent powers of the Court were confirmed by s 23 of the Supreme Court Act 1970. His Honour recognised that the provision in s 28 of the Bail Act 1978 (which clearly granted the Supreme Court jurisdiction) had not been transposed into the Bail Act 2013 and said: 'There is no doubt in my view that the Bail Act 2013 should be amended to confirm or deal with the proposition that the jurisdiction of this Court in relation to all bail applications is unchanged from that which was the situation in s 28 of the Bail Act 1978.' 51. I agree with that part of his Honour's reasons. 52. Rothman J adopted the same reasoning, and traced the same history, in R v Jefferys. That was a case where the applicant had appealed to the Court of Criminal Appeal from a sentence imposed in the District Court. No release application had been made in the District Court. Rothman J recognised that this meant that the Bail Act did not grant power to the Supreme Court to hear the application. However, 'the Crown does not object to the Court dealing with the application on proper principle.' It will be seen that, apart from the position taken by the prosecutor, the case raised the same issue of jurisdiction confronting me. Rothman J apologised 'for the distraction, given the agreement of the parties that the Court should deal with it' but noted (uncontroversially) that 'consent cannot grant jurisdiction.' 53. His Honour held that: '[T]he provisions of section 23 of the Supreme Court Act and the history just recited mandate that the provisions of the Supreme Court are sufficiently broad to enable the Court to deal with bail applications that are otherwise unable to be dealt with under the Bail Act 2013, and in particular are sufficiently broad to enable the Court to deal with the current application before the Court.' 54. His Honour also held: 'I reiterate the earlier comment that the provisions of the Bail Act 2013 are a code in relation to those factors to which the Court must have regard or may have regard in the grant of bail, but the jurisdiction to grant bail is a jurisdiction that can be found otherwise than in the provisions of the Bail Act 2013.'"
In Noufl v DPP, I was unable to accept Rothman J's conclusion that jurisdiction to entertain a bail application could be found outside of the provisions of the Bail Act in circumstances where that statute enunciates clearly the courts and other authorities that have the power to deal with bail applications and the circumstances where that jurisdiction is enlivened. It particular, I was unable to agree that there was inherent jurisdiction or jurisdiction enlivened by the application of s 23 of the Supreme Court Act.
The same applies to the present case. Unless this Court has jurisdiction pursuant to the Bail Act, it cannot entertain Mr Mashayekhi's release application. Section 67 of the Bail Act has no application. As Hoeben CJ at CL and Wilson J point out at [17]: "This is not a matter where this Court has ordered a new trial, or made an order with respect to the continuation of committal proceedings, or directed a stay of execution of a conviction; there is no appeal pending from a decision of this Court to the High Court; and no bail decision has been made by either the Land and Environment Court or the Supreme Court."
Section 61 provides jurisdiction "if proceedings for the offence are pending in the court" and s 5 provides that "proceedings" include an appeal against conviction. However, as Hoeben CJ at CL and Wilson J demonstrate at [14]-[15], s 10(2)(b) of the Criminal Appeal Act applies to "any other Act" (which must include the Bail Act) and provides that an appeal is taken to be "pending in the Court" if the notice of appeal is "duly given" and "made within any time it is required to be made by the rules of court". The chronology set out by their Honours at [6]-[9] demonstrates that this is not the case here.
Accordingly, unless the notice of intention to appeal is extended, the Court does not have jurisdiction to entertain the release application. This conclusion accords with the reasoning of Wilson J (Johnson and Wright JJ agreeing) in Widdowson v R [2020] NSWCCA 213.

Should the Court extend the Notice of Intention of Appeal?

The series of applications to extend the notice of intention to appeal concluded with an application dated 20 October 2020 and filed on 2 November 2020 ("the 2 November application"). The affidavit in support of that application conceded that the Notice of Intention to Appeal had expired on 30 April 2020 but sought a further extension until 31 January 2021. At the hearing it seemed the parties were unaware of the outcome of this application. The respondent's written submissions referred to an extension application made on 21 February 2020 resulting in the extension of the notice of intention to appeal until 30 April 2020. However, no reference is made to the 2 November application. The respondent submitted (at [48]) "[i]t appears that the Notice of Intention to Appeal had lapsed at the time the Notice of Appeal was lodged on 9 November 2020".
The 2 November application has a handwritten note at the bottom of the page in the following terms: "The delay thus far is extensive. You wrote to the Court on 13/12/19 seeking an extension and there has been no contact with the court since. (This is in the context of multiple earlier extensions in this matter). Time to file NOA by extending the NIA further is refused. If you do file an appeal it will need to be accompanied by an application seeking leave to file out of time with an affidavit explaining the delay. [Registrar] 6/11/20."
This order was entered on Justice Link on 6 November 2020.
Rule 3A of the Criminal Appeal Rules provides that the Court may extend the period for which a notice of intention to appeal has effect before or after the expiry of that period. Rule 3C provides: "The power of the Court under section 10(1)(b) of the Act or rule 3A or 3B to extend a period of time may be exercised by the Registrar."
The decision of 6 November 2020, represented by that handwritten note, and then entered on Justice Link appears to be a decision pursuant to s 10(1)(b) or rule 3A(2) as authorised by rule 3C. As Hoeben CJ at CL and Wilson J have observed, it appears that neither party was aware of this decision. It is unclear how the decision was communicated to the person most affected by it, namely Mr Mashayekhi.
Since he made the 2 November application, Mr Mashayekhi filed a notice of appeal and extensive written submissions on 9 November 2020. The case is listed for hearing on 25 June 2021 at which time the Court will consider whether time should be extended based on, amongst other things, the merit of the appeal: Kentwell v The Queen at [33].
I have reached the conclusion that the Court as presently constituted should exercise its powers under s 10(1)(b) of the Criminal Appeal Act or rule 3A(2) of the Criminal Appeal Rules to extend the period the notice of intention to appeal has effect. This will allow the Court to determine the release application on its merits. The considerations bearing upon a decision to extend the period of the notice of intention to appeal were discussed in Kentwell v The Queen at [23]-[33] in the context of a sentence appeal. Ultimately the question is one concerning the balancing of the interests of justice.
The delay in the present case is extensive, a factor militating against the extension of time. As their Honours said at [18] there is insufficient information to assess the merits of the appeal to any great extent. However, if the factual assertions made in the written submissions are accepted (a questionable proposition), there is an arguable case that there was a miscarriage of justice. Further, while the reasons provided for the delay may not account for the extent of the delay, Mr Mashayekhi has explained the difficulties he has had in preparing the appeal as a self-represented litigant serving a lengthy gaol sentence. He has applied for legal aid and appealed against the refusal of legal aid. The appeal against the refusal was rejected. Relevant documents to and from the Legal Aid Commission were filed with earlier applications for an extension of the notice of intention to appeal. He has also explained that there have been difficulties finding a Justice of the Peace to sign his affidavits and that, since the outbreak of COVID-19, the gaol routines restrict the time he has to work on his appeal and associated submissions. Further, it is simply wrong that this Court should be unable to hear and determine a release application because the Registrar has, for understandable reasons given the history of the matter, declined to exercise the power to extend the notice of intention to appeal. As it turned out, the necessary appeal papers were filed within about a week of that application in circumstances where Mr Mashayekhi appeared to be unaware that it was refused, whereupon the Registrar listed the appeal for hearing. Finally, the Court that hears the appeal will be required to make a thorough assessment of the merits of the appeal whether or not an extension of time is granted.
For those reasons, I favour making an order extending the period that the Notice of Intention to Appeal has effect. Accordingly, the Court would have jurisdiction to hear and determine the release application. In reaching that conclusion, I am conscious of the fact that this resolution may be considered to be an expedient side-step of the jurisdictional barrier to Mr Mahayekhi's release application. It is not. Rather, it is an appropriate way of ensuring that justice is done and that the self-represented inmate has the opportunity to be heard on the issue for which the Court was constituted - that is, to hear his application for release pending his appeal. On the hearing of the application, he appeared to be unaware of the jurisdictional issue and, it must be remembered, he filed his notice of appeal and extensive submissions about a week after making his final application to extend the notice of intention to appeal. I accept that the respondent was not heard on this potential resolution, giving rise to issues of procedural fairness, but the prosecuting authority made extensive submissions on the issue of jurisdiction and on the release application itself. It will not ultimately be prejudiced; if there is sufficient merit in the appeal, the Court which hears that appeal in three months' time will inevitably extend time in which to appeal or extend the life of the notice of intention to appeal.

The release application itself

I agree with Hoeben CJ at CL and Wilson J that Mr Mashayekhi has not established special or exceptional circumstances justifying the grant of bail: s 22 of the Bail Act; El-Hilli and Melville v R [2015] NSWCCA 146. I agree with their Honours' reasons for that conclusion.
The appeal will be heard and determined well in advance of Mr Mashayekhi's first possible release date (7 September 2022) and some years before the total sentence expires. While the appeal on its face raises arguable grounds, the facts upon which those grounds are based seem, as best as one can determine at this distance, somewhat unlikely. They involve, amongst other things, an allegation of collusion between the defence lawyers and the prosecuting authority and various breaches of the International Covenant on Civil and Political Rights including the assertion that the accused was denied the opportunity to be heard. Based on the limited material before this Court, while the appeal may be arguable, it cannot be said that the appeal enjoys particularly strong prospects of success.
No other feature of the case referred to on the release application, either individually or in combination, satisfies the requirements of s 22 of the Bail Act.
For those reasons, the orders I favour are: 1. Extend the period for which the Notice of Intention to Appeal has effect. 2. Release application dismissed. 3. Bail refused.

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: 09 April 2021

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