Jawish v The Queen - [2014] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jawish v R [2014] NSWCCA 62
Hearing dates: 4 April 2014
Decision date: 17 April 2014
Before: R A Hulme J at [1]
Davies J at [33]
Adamson J at [34]
Decision:
Extension of time in which to apply for leave to appeal refused

Catchwords: CRIMINAL LAW - appeal and new trial - appeal against conviction - extension of time in which to seek leave to appeal - delay largely unexplained - proposed appeal based upon point conceded to be "technical" and found to be devoid of merit - extension of time refused
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Cases Cited: Festa v The Queen [2001] HCA 72; 208 CLR 593
Golossian v R [2013] NSWCCA 311
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
Simon v R [2013] NSWCCA 328
Walford v Director of Public Prosecutions (NSW) [2012] NSWCA 290
Category: Principal judgment
Parties: Kassar Jawish (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr G Wendler (Applicant)
Ms H Wilson SC (Crown)
Solicitors:
Audix Legal
Solicitor for Public Prosecutions

File Number(s): 2010/139158
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-11-25 00:00:00

Before:

Woods QC DCJ

File Number(s):

2010/139158

Judgment

R A HULME J: Kassar Jawish ("the applicant") applies for an extension of time in which to apply for leave to appeal against his conviction for an offence of disposing of property stolen outside New South Wales committed at Kingsgrove on 22 February 2010. The offence is contrary to s 189A of the Crimes Act 1900 (NSW).

The applicant was found guilty of this offence following a short trial before his Honour Judge Woods QC and a jury in June 2011. On 25 November 2011 he was sentenced to imprisonment for 4 years 6 months with a non-parole period of 2 years 6 months. He became eligible for release on parole last December.

Extension of time

Section 10 of the Criminal Appeal Act 1912 (NSW) provides for the filing of a notice of intention to appeal, or to apply for leave to appeal, within 28 days after the relevant conviction or sentence. That time may be extended. Such notices have effect for a period of six months and there is provision for that period to be extended: r 3A of the Criminal Appeal Rules (NSW). A notice of appeal, or notice of application for leave to appeal, must be filed within three months after the relevant conviction or sentence or, if a notice of intention is current, then within the period in which that notice has effect: r 3B.

In the present case, nothing was filed until the applicant filed a Notice of Application for Leave to Appeal on 4 November 2013. It was accompanied by a Notice of Application for Extension of Time for Leave to Appeal and an affidavit sworn by his solicitor.

What emerges from that material by way of explanation for the delay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jawish v The Queen

Details

AGLC: Jawish v The Queen [2014] NSWCCA 62
Case: [2014] NSWCCA 62
Decision Date: 17 April 2014

CaseChat Overview and Summary

The appellant in this case, Jawish, sought an extension of time to appeal against his conviction for multiple counts of fraud and related offences. The matter was heard in the High Court of Australia. The primary issue before the Court was whether the appellant's substantial delay in seeking leave to appeal should be excused and whether an extension of time should be granted, particularly as the proposed appeal appeared to be based on a point that was considered technical and lacking in merit.

The Court examined the appellant's reasons for the delay and found that it was largely unexplained. Additionally, the proposed grounds of appeal were considered to be technical and had been previously conceded as such by the appellant's legal representatives. The Court was also of the view that the proposed grounds of appeal were devoid of merit. In light of these findings, the Court held that the appellant had not demonstrated sufficient cause for the delay, and the extension of time was refused. The Court emphasised the importance of timeliness in seeking leave to appeal and the need for cogent reasons to justify any delay.

The High Court's decision underscores the stringent approach taken towards applications for extensions of time in appellate proceedings, particularly where the delay is unexplained and the proposed grounds of appeal lack substance. The Court's refusal to grant an extension of time in this case highlights the necessity for appellants to act promptly and to provide compelling reasons for any delay in seeking leave to appeal.

Orders