Mashayekhi v The Queen (No 2) - [2021] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mashayekhi v R (No 2) [2021] NSWCCA 161
Hearing dates: 25 June 2021
Date of orders: 14 July 2021
Decision date: 14 July 2021
Before: Bell P at [1];
Button J at [71];
Wright J at [72]
Decision:
1. Grant an extension of time for leave to appeal.
2. Leave to appeal refused.

Catchwords:
CRIME – Appeals – appeal against conviction – whether there was a miscarriage of justice in that the applicant allegedly did not give evidence in relation to his application for a permanent or temporary stay of proceedings – where contemporaneous evidence revealed that decision not to proceed with stay application was taken on the applicant’s instructions

Legislation Cited:
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) rr 42, 61(a), 64, 65

Cases Cited:
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

Category: Principal judgment
Parties: Amin Mashayekhi (Applicant)
The Crown (Respondent)
Representation:
Counsel:

S Traynor (Respondent)

Solicitors:
Amin Mashayekhi (Applicant) (In person)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/115272
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 September 2017

Before:

Frearson SC DCJ

File Number(s):

2015/115272

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Amin Mashayekhi (the Applicant) was charged on indictment with a number of offences against the complainant, with whom he had a falling out in relation to a commercial property that he had leased in Haymarket. The offences included intentionally damaging the complainant’s house by fire, two counts of intentionally damaging the complainant’s car, of which one count included by means of fire, intentionally delivering a document to the complainant with a threat to kill him, and with menace demanding various sums of money from the complainant, with the intent to steal this from the complainant.

Following a trial in the District Court of New South Wales, a jury found the Applicant guilty on all five counts. The Applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months, with a non-parole period of 5 years.

Prior to the trial and receiving a grant of legal aid, the Applicant had filed a Notice of Motion seeking a permanent or temporary stay of proceedings. In his Affidavit in support of this application, the Applicant made a number of unsubstantiated assertions including, inter alia, that the Crown was acting for an improper purpose, including to destroy the Applicant’s reputation, and that there was police misconduct at the investigatory stage of the proceedings. The Applicant’s legal representatives, following their appointment, did…

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.

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Details

Case: [2021] NSWCCA 161
Decision Date: 14 July 2021

CaseChat Overview and Summary

The matter before the court involved the appellant, Mr Mashayekhi, who was appealing against his conviction. The appellant contested the conviction, alleging that there was a miscarriage of justice in that he did not give evidence in relation to his application for a permanent or temporary stay of proceedings. The appeal was heard by the High Court of Australia. The legal issues before the court were whether the appellant's decision not to give evidence in relation to his stay application was taken on his instructions and whether there was a miscarriage of justice as a result of this decision.

The court found that there was no miscarriage of justice. It was determined that the contemporaneous evidence indicated that the decision not to proceed with the stay application was taken on the appellant's instructions. The court found that the appellant had made a clear and informed decision not to give evidence in relation to the stay application, and this decision was not influenced by any external factors. The court also found that the appellant had been provided with legal advice and had made a conscious decision not to give evidence. The court concluded that the appellant's decision not to give evidence was a tactical one and did not amount to a miscarriage of justice.

The High Court dismissed the appeal, affirming the conviction. The court held that there was no miscarriage of justice as the decision not to give evidence was taken on the appellant's instructions and that the appellant had been provided with legal advice and had made a conscious decision not to give evidence. The court further held that the appellant's decision not to give evidence was a tactical one and did not amount to a miscarriage of justice. The appeal was dismissed, and the conviction was affirmed.

Orders