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Court of Criminal Appeal 14 July 2021

Mashayekhi v R (No 2)

[2021] NSWCCA 161

Public order & justice offences
CRIME APPEALS A PPEAL AGAINST CONVICTION

Citation: Mashayekhi v R (No 2) [2021] NSWCCA 161
Court: Court of Criminal Appeal, New South Wales
Date: 14 July 2021
Judge(s): Bell P (principal judgment); Button J and Wright J (agreeing)

Background

The applicant was convicted by a District Court jury on five counts arising from a commercial dispute over a leased Haymarket property. The offences included arson of the complainant's house, damage to the complainant's vehicles (one count by fire), delivery of a death threat, and demanding money with menaces up to $150,000. The jury returned guilty verdicts on all counts after a trial in August and September 2017, and the applicant was sentenced to an aggregate term of 7 years and 6 months' imprisonment with a non-parole period of 5 years.

Before trial, and before receiving legal aid, the applicant had filed a Notice of Motion seeking a permanent or temporary stay of proceedings. His supporting affidavit made a series of allegations, including claims of improper Crown purpose and police misconduct during the investigation. Once legal representatives were assigned, they did not pursue the stay application.

The appeal, filed significantly out of time, centred on complaints about how the applicant's lawyers had conducted the trial, rather than on the reasonableness of the jury's verdict.

  • Whether the abandonment of the stay application constituted a miscarriage of justice, particularly because the applicant alleged he was not consulted about that decision
  • Whether the failure to lead evidence at trial corresponding to the contents of the stay affidavit caused a miscarriage of justice
  • Whether the applicant was denied the opportunity to give evidence at his trial
  • Whether the applicant's legal representatives acted with bias or failed to represent him competently

Decision

The Court found, on the basis of contemporaneous file notes and evidence, that the decision not to pursue the stay application was made with the applicant's knowledge and on his instructions. The applicant's assertion that he had not been consulted was therefore rejected as inconsistent with the documentary record.

The Court also rejected the argument that abandoning the stay caused a miscarriage of justice on its merits. The allegations in the supporting affidavit, including suggestions of collateral Crown purpose and police misconduct, amounted to conclusory or speculative assertions that would not have been admissible at trial. Because the underlying material was inadmissible, the failure to pursue the application could not have affected the outcome.

The Court further held that eliciting evidence of the kind contained in the affidavit would have placed defence counsel in breach of professional and ethical obligations. Counsel cannot properly lead evidence that is inadmissible or otherwise unpermissible, and the legal representatives were bound by those obligations regardless of the client's wishes.

On the remaining grounds, the Court was satisfied that the applicant did give evidence at trial, that his case was presented both fairly and competently, and that there was no basis for finding bias on the part of his legal representatives. The Crown case, though circumstantial, was described as extremely powerful, and no aspect of the hearing pointed towards counsel's conduct as the reason for the conviction.

Orders Made

  • Leave to appeal refused
  • Extension of time to appeal was required but the application was in any event dismissed on the merits

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an accused is generally bound by the way trial counsel conducts their case, and that decisions made without or contrary to client instructions, or involving errors of judgment, do not automatically constitute a miscarriage of justice.
  • A failure to pursue a stay application will not occasion a miscarriage of justice where the material supporting that application consisted of inadmissible, conclusory, or speculative assertions.
  • Where evidence is inadmissible, counsel cannot properly elicit it at trial; doing so would breach professional and ethical obligations, and the failure to lead such evidence does not constitute a miscarriage of justice.
  • Contemporaneous file notes and records of instructions are significant in assessing post-conviction claims that a client was not consulted about strategic decisions made during proceedings.
  • Only in cases of "flagrant incompetence" by counsel, or some other cause that genuinely produces an unfair trial, will a court of criminal appeal intervene on the basis of counsel's conduct, following the principle stated in R v Birks and affirmed by the High Court in TKWJ v The Queen and Nudd v The Queen.

Legislation and Cases Referenced

Legislation:
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 42, 61(a), 64, 65
- Crimes Act 1900 (NSW), ss 31(1), 99(1), 195(1)(a), 195(1)(b), 195(1A)(b)

Cases:
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Kamali v R [2019] NSWCCA 186
- Mashayekhi v R [2021] NSWCCA 55
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46