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6
Court of Criminal Appeal 9 April 2021

Mashayekhi v R

[2021] NSWCCA 55

Public order & justice offences
CRIME BAIL RELEASE APPLICATION PROPOSED CONVICTION AND SENTENCE APPEAL NO APPEAL “PENDING” BEFORE THE COURT NO JURISDICTION TO HEAR APPLICATION

Citation: Mashayekhi v R [2021] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 9 April 2021
Judges: Hoeben CJ at CL and Wilson J (joint reasons); Hamill J (separate reasons)

Background

The applicant had been convicted by jury in 2017 of five offences under the Crimes Act 1900 (NSW), including demanding money with menaces, delivering a threat-to-kill document, and property damage by fire. The offences arose from a failed business deal, with the applicant targeting the man he held responsible for his financial losses. He received an aggregate sentence of 7 years and 6 months, with a non-parole period expiring in September 2022.

Following sentence, the applicant filed a Notice of Intention to Appeal. Over nearly three years, he obtained five extensions of that notice, but the notice ultimately expired on 30 April 2020. A sixth extension application was refused in November 2020. The applicant then filed a Notice of Appeal in November 2020 without any accompanying application for an extension of time, and without leave to appeal having been granted.

The applicant applied to the Court of Criminal Appeal for bail pending the proposed appeal. A preliminary jurisdictional question arose as to whether the Court had power to hear the bail application at all.

  • Whether proceedings were "pending" before the Court of Criminal Appeal so as to enliven its jurisdiction to hear a bail application under s 61 of the Bail Act 2013 (NSW)
  • Whether the Notice of Appeal filed in November 2020 had been "duly given" within the meaning of s 10 of the Criminal Appeal Act 1912 (NSW), given it was filed outside the time limits in rule 3B of the Criminal Appeal Rules
  • Assuming jurisdiction did exist, whether the applicant met the test for release under s 22 of the Bail Act, requiring "special or exceptional circumstances"

Decision

The Court held that it had no jurisdiction to hear the bail application. Under s 61 of the Bail Act, the power to hear a bail application is only enlivened where proceedings for the offence are "pending" before the court. Section 10(2)(b) of the Criminal Appeal Act provides that an appeal is pending only if a notice of intention to appeal or apply for leave has been "duly given." Because the applicant's November 2020 Notice of Appeal was filed outside the time allowed by rule 3B of the Criminal Appeal Rules, with no extension of time granted, it had not been duly given. There were therefore no proceedings pending before the Court, and s 61 was not enlivened.

The Court declined to exercise its power to grant an extension of time at that stage. The delays exceeded three years, the applicant's explanation attributing delay to difficulties obtaining legal representation and preparing from custody was insufficient to account for a delay of that length, and the Court found there was insufficient material to properly assess the merits of the proposed appeal. The Court noted those questions were properly left to the bench constituted to hear the appeal itself, which was listed in June 2021.

On the assumption (which the majority did not accept) that jurisdiction did exist, the majority concluded the applicant would not have satisfied the s 22 test in any event. That provision requires "special or exceptional circumstances" to justify bail following conviction. The proposed appeal grounds included allegations of collusion between defence lawyers and prosecutors, and breaches of the International Covenant on Civil and Political Rights. The majority found the factual basis for those grounds appeared unlikely on the material available, and the appeal could not be said to enjoy particularly strong prospects of success. No other combination of circumstances met the threshold.

Hamill J wrote separately, favouring a different procedural resolution. His Honour considered that, since the appeal hearing was only three months away, it was more appropriate to extend the notice of intention to appeal rather than strike out the application, so that the self-represented applicant had an opportunity to be heard. However, Hamill J agreed that the s 22 test was not satisfied and that the release application should be dismissed.

Orders Made

  • Application struck out for want of jurisdiction

Key Takeaways

  • Under s 61 of the Bail Act 2013 (NSW), a court's power to hear a bail application depends on proceedings being "pending" before it; where a notice of appeal is filed out of time and no extension has been granted, no proceedings are pending and the court has no jurisdiction.
  • Section 10(2)(b) of the Criminal Appeal Act 1912 (NSW) links the concept of a "pending" appeal to a notice having been "duly given," which requires compliance with the time limits in rule 3B of the Criminal Appeal Rules or a valid extension from the Court.
  • Difficulty preparing an appeal from custody and challenges in maintaining legal representation did not, on the facts of this case, constitute the special or exceptional circumstances required by s 22 of the Bail Act to justify post-conviction bail.
  • The Court of Criminal Appeal confirmed its approach from Widdowson v R [2020] NSWCCA 213: a bail application filed where appeal proceedings are out of time and no extension has been obtained must be struck out for want of jurisdiction.
  • Even where a self-represented applicant files a notice of appeal and substantive submissions, the statutory requirements around time limits and the "pending" proceedings criterion operate independently of the applicant's personal circumstances or apparent good faith compliance attempts.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 5, 22, 48, 59, 61, 67
- Criminal Appeal Act 1912 (NSW), s 10
- Criminal Appeal Rules (1952 SI 2) (NSW), rule 3B
- Crimes Act 1900 (NSW), ss 99(1), 195(1)(a), 195(1)(b)

Cases:
- El-Hilli and Melville v R [2015] NSWCCA 146
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Ambury [2017] NSWCCA 115
- R v Williams [2020] NSWCCA 348
- Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102
- Widdowson v R [2020] NSWCCA 213