AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 17 April 2014

Jawish v R

[2014] NSWCCA 62

Theft & property
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST CONVICTION DELAY LARGELY UNEXPLAINED EXTENSION OF TIME REFUSED

Citation: Jawish v R [2014] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 17 April 2014
Judges: R A Hulme J (with Davies J and Adamson J agreeing)

Background

The applicant had been convicted in June 2011 following a jury trial before Judge Woods QC of disposing of property stolen outside New South Wales, contrary to s 189A of the Crimes Act 1900 (NSW). The conviction related to the delivery of a large quantity of biscuits, stolen from a Brisbane depot, to a trading business at Kingsgrove on 22 February 2010. The Crown case was largely circumstantial, relying on vehicle hire records, surveillance observations, CCTV footage comparisons, and the eventual discovery of the stolen biscuits at the premises.

The applicant was sentenced in November 2011 to four years and six months imprisonment with a non-parole period of two years and six months. He became eligible for parole in December 2013.

Nothing was filed to initiate an appeal until November 2013, more than two years after conviction. The applicant applied for an extension of time in which to seek leave to appeal, supported by an affidavit from his solicitor explaining the steps taken to obtain legal advice and prepare the appeal documents.

  • Whether the applicant should be granted an extension of time in which to apply for leave to appeal against his conviction
  • Whether the trial judge erred in declining to exclude the identification evidence of Detective Sergeant Don, who gave evidence of "similarity" between the men he observed and the two accused

Decision

Extension of time: The Court found that the delay of over two years was largely unexplained. The applicant waited more than a year after conviction before even initiating steps to seek legal advice about an appeal. While there was some criticism of the pace at which lawyers subsequently progressed the matter, the more fundamental gap was the complete absence of any explanation for the applicant's own prolonged inactivity. Applying the principle from Simon v R and Golossian v R, the Court emphasised that time limits serve the legislative purpose of finality in litigation. The interests of the community, and the justified expectation that proceedings are concluded, carry increasing weight as delay grows.

Merits of the proposed appeal: The proposed ground challenged the trial judge's ruling allowing Sergeant Don to give evidence that the men he saw at Kingsgrove were "similar" in appearance to the two accused, rather than excluding that evidence entirely. The trial judge had already upheld an objection to the officer giving recognition evidence outright. Following the ruling, neither defence counsel complained about the nature of the evidence as actually given, and no complaint was raised about the jury directions, including the direction against drawing adverse inferences from the fact that police had photographs of the accused.

The Court found there was nothing unfairly prejudicial about the similarity evidence. Relying on Papakosmas v The Queen and Festa v The Queen, the Court held that no unfair prejudice arises merely because one item of evidence enhances the combined force of a circumstantial Crown case. The suggestion that the jury might irrationally inflate the weight of other circumstances was not supported by any explanation.

Hulme J described the proposed ground as "completely devoid of merit" and noted there was not the slightest hint of a miscarriage of justice. The Court also remarked on the unfortunate allocation of Legal Aid NSW resources to a point ultimately conceded by the applicant's own counsel to be "technical."

Orders Made

  • Extension of time in which to apply for leave to appeal refused.

Key Takeaways

  • An applicant seeking an extension of time to appeal must adequately explain the whole period of delay. Unexplained inactivity by the applicant personally, as distinct from delays by legal representatives, weighs significantly against the grant of an extension.
  • The Court of Criminal Appeal confirmed, following Golossian v R and Simon v R, that time limits for criminal appeals serve the legislative principle of finality. Applications for extensions are assessed in a more summary fashion than appeals brought within time, so that the time limits do not become meaningless.
  • Where a trial judge has already upheld a partial objection to identification evidence and appropriately directed the jury, the absence of any further objection at trial to the form of the evidence as given will undermine a later appellate challenge to that evidence.
  • No unfair prejudice arises simply because a piece of evidence strengthens the combined force of a Crown circumstantial case. Authorities from the High Court (Papakosmas, Festa) confirm this principle.
  • In refusing the application, the Court observed that Legal Aid resources should not be directed to grounds conceded to be technical and found to be entirely without merit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 189A
- Criminal Appeal Act 1912 (NSW), s 10
- Criminal Appeal Rules (NSW), rr 3A, 3B

Cases:
- Simon v R [2013] NSWCCA 328
- Golossian v R [2013] NSWCCA 311
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290