Mashayekhi v R (No 2)

1. [1]

   BELL P: Mr Amin Mashayekhi (the Applicant) was charged on indictment with the following offences:

2. [2]

   Following a trial before Frearson SC DCJ (the trial judge) and a jury in the District Court of New South Wales at Sydney between 22 August 2017 and 8 September 2017, the jury found the Applicant guilty on all five charges.

3. [3]

   On 8 December 2017, the Applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months, to commence on 8 September 2017 to 7 March 2025, with a non-parole period of 5 years, to expire on 7 September 2022. The trial judge nominated indicative sentences of imprisonment of 3 years 6 months in respect of Count 1, 3 years 4 months in respect of Count 2, 4 years in respect of Count 3, 16 months in respect of Count 4, and 2 years 8 months in respect of Count 5.

Background

1. [4]

   The Crown case at trial was that the Applicant had had a falling out with the complainant, Mr Edward Song (Mr Song), over a commercial property that he had leased in George Street, Haymarket. The Applicant intended to use the premises as a backpacker hostel, and was provided with various certificates by Mr Song’s real estate agent. Additional terms of the lease were negotiated to allow the Applicant not to pay rent for five months whilst he sought relevant approval and renovated the premises. A sum of $47,798 was required as a bank guarantee. A lease was signed in June 2013 for a period of five years, between a company owned by Mr Song and a Mr Dong, and a company owned by the Applicant.

2. [5]

   There were problems with the relevant certificates, and the Applicant could not use the premises as intended. After the five-month rent free period, the Applicant failed to pay the rent under the agreement and forfeited the bank guarantee. The lease was terminated on 24 June 2014. Correspondence was exchanged between lawyers for the Applicant and lawyers for Mr Song, and the matter was referred to the Small Business Commissioner, but no legal proceedings were commenced. The Applicant sought $104,000 from Mr Song, who refused to pay.

3. [6]

   Following this, there was a sustained campaign of threats and violence directed towards Mr Song, demanding money. Other threatening messages were also received by Mr Song’s business partner’s wife, Ms Jie Gu (Ms Gu), and the real estate agent who had negotiated the terms of the lease. As the Crown submitted, there was a strong circumstantial case presented by the Crown at trial that it was the Applicant who was making the threats and carrying out the acts either personally, or through others on his instructions.

4. [7]

   The Applicant’s case at trial was that he was not responsible for any of these acts, but that he did participate in one of the recorded calls seeking payment from Mr Song. It was his case, and he gave evidence to the effect, that the calls were made by somebody else. Self-evidently, the jury did not accept the defence case, and none of the grounds of appeal suggests or is to the effect that the jury’s verdict was unreasonable. As shall be seen, the grounds of appeal are focussed on complaints by the Applicant about his representation at trial.

Extension of time to appeal

1. [8]

   Although no order has been sought by the Applicant for an extension of time, it is clear that the Applicant requires an extension of time in which to bring his appeal as the Notice of Appeal has been filed significantly out of time.

2. [9]

   The procedural history of these proceedings following the Applicant’s conviction more than three and a half years ago was summarised by Hoeben CJ at CL and Wilson J in Mashayekhi v R [2021] NSWCCA 55 at [6]-[8] in the context of an unsuccessful application for bail filed by the Applicant. The following summary is drawn from their Honours’ decision:

   1. (1)

      Following the imposition of sentence on 8 December 2017, the Applicant filed a Notice of Intention to Appeal against conviction and sentence on 13 December 2017. An extension of the Notice of Intention to Appeal was sought on 24 August 2018, and granted until 15 October 2018;

   2. (2)

      A further extension of the Notice of Intention to Appeal was sought and granted on 30 October 2018, with the Notice extended until 14 December 2018;

   3. (3)

      On 13 March 2019, the Applicant again sought an extension of the Notice of Intention to Appeal, and it was extended until 3 May 2019;

   4. (4)

      Another such application on 27 May 2019 saw the Notice of Intention to Appeal extended to 2 August 2019;

   5. (5)

      On 21 February 2020, there was another belated application for an extension, which was granted to 30 April 2020. The Notice of Intention to Appeal expired on that date;

   6. (6)

      On 2 November 2020, the Applicant filed a sixth application for an extension of time in which to bring an appeal or application for leave to appeal, but it was refused by the Court on 6 November 2020;

   7. (7)

      On 9 November 2020, over three years after the verdicts of guilty had been returned by the jury at his trial, the Applicant filed a Notice of Appeal with a statement of proposed grounds of appeal and submissions in support of the grounds. The Notice of Appeal was not accompanied by any further application for an extension of time in which to bring the appeal, and nor has any extension of time, or leave to appeal, been granted by the Court.

3. [10]

   At [18], their Honours noted that although the Court as it was presently constituted had the power to grant an extension of time in which to seek leave to appeal, or to grant leave to appeal, that was not the appropriate course to take. Their Honours continued that:

4. [11]

   Because I have come to the view that the Applicant’s case is without merit and that leave to appeal should be refused, I would grant the short extension of time required but refuse leave to appeal.

Proposed grounds of appeal

1. [12]

   By his proposed Notice of Appeal, the Applicant seeks to challenge both his conviction and sentence, although none of the grounds formulated relate to sentence. The grounds of appeal are as follows:

The stay application

1. [13]

   All three grounds relate to the course of the trial and, in particular, the fate of an application for a permanent or temporary stay of proceedings which was supported by a 22 page Affidavit sworn by the Applicant on 2 August 2017. This application had been foreshadowed by the Applicant in a letter addressed to a District Court judge on 19 July 2017, in which the Applicant made a number of points including that:

2. [14]

   In May 2016, the Applicant had submitted a complaint to the Police Integrity Commission (PIC) outlining a number of allegations concerning the conduct of the police. This complaint was referred to in a letter to the Applicant from the NSW Ombudsman on 21 July 2016, in which the Ombudsman expressed his agreement with the decision of the Burwood Local Area Command, to which the Applicant’s complaint had been referred, to decline to investigate the Applicant’s complaint. The letter continued:

3. [15]

   The Affidavit in support of the stay application set out the Applicant’s bases for a stay of proceedings under a series of sub-headings. These in large measure reflected some of the complaints that the Applicant had made both to the PIC and the Ombudsman. They were:

4. [16]

   In his Affidavit, the Applicant advanced a view that he had been entrapped by a Mr Maher Naboulsi (Mr Naboulsi), either as an agent for the complainants or the police, and that Mr Naboulsi had been behind the robbing of the Applicant’s house in 2015. He also alleged that his arrest was as a result of a number of people making untrue statements to the police. The Affidavit contained the following statement at para 45:

5. [17]

   The Affidavit also contained unsubstantiated assertions that the Crown was acting for improper purposes, including to destroy the Applicant’s reputation and that the Crown’s actions were fraudulent. The Applicant also asserted that by not investigating his complaints, the Crown was “empowering criminals to thrive in the community”. Unspecified police misconduct in the investigation stage was also asserted.

6. [18]

   The penultimate sub-heading in the Applicant’s affidavit reflected the fact that, at the time the stay application was filed, the Applicant was unrepresented, and his Affidavit referred to Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (Dietrich). Notwithstanding this, on 7 August 2017, following a grant of legal aid, Benjamin & Leonardo, Criminal Defence Lawyers were retained and Mr Alessandro Albanese (Mr Albanese) assumed carriage of the matter. Mr Mark Doyle (Mr Doyle), a criminal defence barrister of more than 20 years standing at the time of the trial, was briefed.

7. [19]

   Because of the nature of the grounds of appeal and following a privilege waiver by the Applicant, both Messrs Albanese and Doyle gave evidence in the proceedings, supported in Mr Albanese’s case by a number of contemporaneous file notes he had made and retained. The Applicant, who appeared for himself on the appeal, cross-examined Messrs Doyle and Albanese and also gave evidence himself. He was cross-examined by Ms Traynor for the Crown. The evidence of Messrs Doyle and Albanese and the Applicant is referred to further below.

8. [20]

   On being briefed, Mr Doyle received the Brief of Evidence, the Crown case statement and the Notice of Motion. The matter was mentioned on 11 August 2017 and 14 August 2017, when a short further adjournment was sought to allow for preparation. The matter was adjourned until 16 August 2017 and then again until 21 August 2017.

9. [21]

   The stay application was not pursued, and this decision was explained in the evidence of Mr Albanese and Mr Doyle referred to more fully below.

10. [22]

    The first jury was discharged on the first day of the trial and a second jury empanelled on 22 August 2017. The trial then proceeded for a number of weeks in which Mr Naboulsi, to whom the Applicant had referred in his Affidavit in support of the Notice of Motion and in instructions given to Messrs Doyle and Albanese between 17 and 21 August 2017, was examined by Mr Doyle on a Basha inquiry, but was not ultimately called in the defence (or prosecution) case. The Applicant did give evidence at the trial.

11. [23]

    The Applicant was convicted and, in his remarks on sentence, the trial judge said:

Evidence on appeal

1. [24]

   The Applicant filed an Affidavit in support of his application for leave to appeal. It set out the Applicant’s account and understanding of the procedural history of the trial. At paras 16–17 of his Affidavit, the Applicant said:

2. [25]

   The Applicant then said at paras 19–22 of his Affidavit:

3. [26]

   It may be observed that what is set out in para 19 in particular of the Applicant’s affidavit before the Court of Criminal Appeal was repetitive of much of what had appeared in his Affidavit in support of his stay application. It was similarly utterly conclusory and, like the earlier Affidavit, contained no material to substantiate the allegations contained in it.

4. [27]

   A number of further points should be made about the passages from the Affidavit extracted above. First, the Applicant complains in para 22 that his counsel refused to ask Mr Naboulsi certain questions in relation to “the sexual assault, robbery, threats, and his relationship with the police and the reason that his charges was [sic] getting dropped by the police all the time”. In this context, the Applicant was and is evidently of the view that a barrister is at liberty to put whatever suggestions his or her client wishes to be put to a witness, irrespective of whether or not the barrister considers that there is a proper basis to put such questions. As will be explained below, that understanding is fundamentally wrong and, as will also be seen, Mr Doyle explained this to the Applicant at the time of the trial, although the Applicant could not or did not want to understand this. As will also be seen below, the Applicant accepted the decision not to call Mr Naboulsi in his defence following the Basha inquiry, in which a number of the matters which the Applicant had instructed his legal representatives about Mr Naboulsi were put to him but were rejected.

5. [28]

   Secondly, the Applicant contended in para 22 of his Affidavit that his counsel “refused to ask questions from the arresting officer in regards to planting a phone on me”. This assertion is not correct. On 24 August 2017, the Applicant’s counsel put just such a question to Detective Brennan in cross-examination, which the Detective denied. The Nokia phone contained particularly important circumstantial evidence in the case against the Applicant. As the trial judge noted in his remarks on sentence, a “Nokia handset was recovered from the offender’s possession upon his arrest and it was associated with four of the numbers from which Mr Song received threatening calls.”

6. [29]

   At para 33 of his Affidavit, the Applicant said:

7. [30]

   The Applicant was cross-examined in respect of his evidence on appeal. It was put to him that he had given instructions to his legal representatives not to proceed with the stay application, but he denied this. It was also put to him that he had signed a document (see [40] below) in which he had acknowledged that he was getting a fair trial, that he did not want Mr Naboulsi to be called as part of the defence case, but that he was happy that Mr Naboulsi had been examined on the Basha inquiry. He claimed, however, that he had been forced and pressured into signing this document:

8. [31]

   When it was put to him that, notwithstanding the terms of appeal grounds 2 and 3, he had in fact given extensive evidence at the trial, it emerged that his real complaint was not that he had been unable to give evidence at all, nor that he had not understood that he had an option as to whether or not to give evidence. Rather, his complaint appeared to be that he was not able to give the evidence that was contained in his Affidavit in support of the stay application. I will return to this below.

9. [32]

   The Applicant also maintained under cross-examination that he did not realise that the stay application would not be proceeded with, and that he had assumed that it would be heard after the Crown put its case. For the reasons explained below, I do not accept this evidence.

10. [33]

    Mr Albanese, having given some short background to how he came to represent the Applicant at the trial, referred to the initial directions hearings or mentions that he was involved in prior to the commencement of the trial. He noted that, subsequent to the court appearance on 14 August 2017, a conference was held with the Applicant, Mr Doyle and himself, in which the Applicant provided instructions that he did not wish to proceed with the Notice of Motion relating to a permanent stay application, and that he provided instructions to prepare and file an Alibi Notice concerning the events of the evening of 17 August 2014, which was the subject of the third count. This was supported by a contemporaneous file note prepared by Mr Albanese, which said “Don’t wish to proceed w[ith] Notice of Motion”.

11. [34]

    Mr Albanese was cross-examined with some skill by the Applicant in relation to this file note, to the effect that it was more than simply a record of the conference and included certain notes Mr Albanese had made to himself about matters he needed to attend to, as well as discussions with the Crown about a plea. Mr Albanese, who was a careful and impressive witness, fairly accepted this, but did not resile from his evidence that parts of the file note did relate to instructions not to proceed with the Notice of Motion seeking a permanent or temporary stay of proceedings. Under cross-examination, he also identified other matters which he identified as reflecting discussions or instructions with the Applicant, including in relation to a suggested alibi in respect of one charge, and in relation to the Applicant not consenting to a summary of various phone calls going into evidence.

12. [35]

    Mr Albanese also referred in his evidence to a conference prior to a further mention of the matter before Blackmore SC DCJ on 16 August 2017 in which he discussed trial preparations with Mr Doyle and the Applicant and obtained short instructions. Mr Albanese said that the Applicant “was advised and understood that he was not required to give evidence if he did not wish to give evidence”. Mr Albanese expressed the opinion that the Applicant “was always intent on giving evidence in his trial”. Mr Albanese’s evidence in relation to this conference was also supported by a contemporaneous file note.

13. [36]

    On 17 August 2017, Mr Albanese had a further conference with the Applicant in his city office in order to obtain his detailed instructions on some eight witness statements made by Mr Song in the brief of evidence. It was during this conference that the Applicant alluded to the potential criminal involvement of Mr Naboulsi. Mr Albanese prepared a typed record of the Applicant’s instructions relating to Mr Naboulsi, before emailing that document to Mr Doyle that evening.

14. [37]

    Mr Albanese deposed to holding a number of further conferences with the Applicant, including on 21 August 2017 (when the Applicant instructed him to obtain a copy of Mr Naboulsi’s criminal record, and to cause a subpoena to be issued to Mr Naboulsi to attend court and give evidence) and on 22 August 2017 (to obtain his instructions with respect to certain telephone intercept material in relation to a mobile phone number which the Crown alleged was used by the Applicant).

15. [38]

    A further conference took place between the Applicant, Mr Doyle and Mr Albanese on 25 August 2017. Mr Albanese’s evidence about that conference was that:

16. [39]

    On 30 August 2017, the Applicant confirmed his instructions to agree to the Agreed Facts document, to be tendered as part of the trial. At the conclusion of the hearing that day, a further conference was held. Mr Albanese’s evidence was that:

17. [40]

    The file note referred to by Mr Albanese was annexed to his Affidavit. It was signed by the Applicant and dated 30 August 2017. It read as follows:

18. [41]

    The Applicant cross-examined Mr Albanese about this file note in the following sequence of questions and answers:

19. [42]

    It was not put to Mr Albanese under cross-examination that he had forced or pressured the Applicant into signing this document, despite the Applicant having asserted that this was the case in his own evidence under cross-examination. As Mr Albanese explained, and I accept, it was a common practice of his to have clients acknowledge important matters by signing a file note in the way the Applicant did. In oral evidence-in-chief, Mr Albanese denied that he had pressured the Applicant to sign the file note or at any other time in the proceedings, this suggestion having first been made in the Applicant’s answers to questions when under cross-examination.

20. [43]

    At paras 22–25 of his Affidavit, Mr Albanese said:

21. [44]

    In his Affidavit sworn 4 June 2021, Mr Doyle said at paras 4-8:

22. [45]

    Mr Doyle was cross-examined at some length by the Applicant. He made further references to his duties under the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (the Barristers Rules) not to put matters which he had no basis to put, and not to be a mere mouthpiece of the client, saying, in answer to the Applicant’s questioning:

23. [46]

    It was not put to Mr Doyle that he was not instructed not to pursue the stay application or that he had in any way pressured the Applicant into not pursuing it.

Findings and consideration

1. [47]

   I am comfortably satisfied that the decision not to proceed with the stay application was taken both to the knowledge and with the instructions of the Applicant. That decision was prudently recorded by Mr Albanese in his contemporaneous file note.

2. [48]

   I would reject the Applicant’s evidence insofar as it was to the effect that he did not appreciate that the Notice of Motion would not be pursued, and would be revisited after the close of the Crown’s case. As the trial judge noted in his sentencing remarks, the Applicant is an intelligent man who was a mortgage broker. His intelligence and his command of English came through in the way he conducted his appeal, including in his cross-examination of both Mr Doyle and Mr Albanese. At no stage during the course of the trial was there any record of him complaining to his legal representatives or to the Court that the stay application was not being pursued. He plainly understood what a stay application was (so much may be inferred from his Affidavit filed in support of it), and that the fact that the trial was being run was wholly inconsistent with any notion that the stay application would be returned to in due course.

3. [49]

   I am also more than comfortably satisfied that the failure to proceed with the Notice of Motion did not, and could not have, occasioned a miscarriage of justice. Insofar as the stay application was based upon Dietrich considerations, the issue of representation had been resolved with the grant of legal aid and the appointment of Messrs Albanese and Doyle to represent the Applicant. Insofar as it was based upon suggestions of collateral purpose on the part of the Crown or some form of collusion involving Mr Naboulsi, it was bound to fail, as the Affidavit evidence of the Applicant in support of it, which was before this Court, was quite incapable of sustaining such a serious charge. Most of that evidence was either inadmissible hearsay evidence, or conclusory or speculative assertions which also would not have been admissible. Moreover, even if the Applicant had instructed his legal representatives to proceed with the Notice of Motion, they could not ethically have done so in the absence of adequate and admissible material to support the grave conspiracy being propounded by the Applicant.

4. [50]

   In this context, rule 42 of the Barristers Rules provides that:

5. [51]

   Rule 61(a) of the Barristers Rules provides that:

6. [52]

   Rule 64 of the Barristers Rules provides that:

7. [53]

   Rules 65 of the Barristers Rules provides that:

8. [54]

   These rules are relevant not only to explain why the stay application on the non-Dietrich grounds could not have been pursued, but they are also relevant to the Applicant’s complaint that, although he gave evidence, his counsel did not lead evidence from him of the kind that was contained in the affidavit the Applicant had drawn in support of the stay application. This, as I have explained at [31] above, seems to be the kernel of the Applicant’s complaint. What the Applicant evidently wanted to be put was set out in para 37 of his submissions on appeal, namely that “[t]he accused[’s] instruction and evidences [sic] was that Mr Naboulsi organised criminal activities as an agent for the police to entrap Mr Mashayekhi and the barrister was relying on those evidences [sic].”

9. [55]

   In this context, as Gleeson CJ explained in R v Birks (1990) 19 NSWLR 677 at 683; (1990) 48 A Crim R 385 (Birks), “[d]ecisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics”. Similarly, in Kamali v R [2019] NSWCCA 186 at [33], Simpson AJA (with whom Bellew and Campbell JJ agreed) observed that:

10. [56]

    The discretions are subject to the operation of, and constrained by, the Barristers Rules which supply the parameters and ethical boundaries within which counsel’s discretion is to be exercised. In his evidence before this Court, Mr Doyle expressed the view that the Applicant did not seem to understand the ethical constraints which barristers must act under. The Applicant’s misconception has carried through to the present application for leave to appeal.

11. [57]

    To the extent that the first ground of appeal might suggest that the Court should itself have considered the Applicant’s Notice of Motion for a permanent stay – “[t]he court ignored the appellant’s Application to Stay” – any such argument is procedurally misconceived. It was not for the Court to consider whether the relief sought in the Notice of Motion should be granted when it was not moved upon.

12. [58]

    What has already been said is sufficient also to deal with the second and third grounds of appeal. The Applicant not only was given the opportunity to give evidence, but he did give evidence. Moreover, insofar as he had given his legal representatives instructions in relation to Mr Naboulsi, his lawyers explored these matters in the Basha inquiry and the Applicant expressly acknowledged that Mr Naboulsi should not be called in the defence case: see [40] above. I accept the Crown’s submission that:

13. [59]

    The Applicant’s case was presented both fairly and competently. There is no basis whatsoever for the suggestion that the Applicant’s legal representatives were in some way biased against him. The Applicant submitted that his counsel was biased against him on the following grounds:

14. [60]

    As to point 1, if that was Mr Doyle’s belief, it was not evidence of bias but rather of sound forensic judgment, consistent with a proper appreciation of a barrister’s ethical responsibilities.

15. [61]

    As to point 2, Mr Doyle identified the relevant Barristers Rules by reference to their content. That he may not have been able to cite the specific number of the relevant rules is quite beside the point.

16. [62]

    As to points 3 and 8, there is no basis for the suggestion that the defence case was “invented” by Mr Doyle. The reference to the “document provided by Mr Albanese” appears to be Mr Albanese’s typed notes of his conference with the Applicant: see [36] above.

17. [63]

    As to points 4, 5 and 9, decisions as to objecting to evidence, cross-examining witnesses and the playing of recordings are properly matters within the scope of a barrister’s forensic judgment. Insofar as it is necessary to go into any detail about the sound recordings, the Applicant did not point to any aspect of the recordings that were not played but which were in any way exculpatory.

18. [64]

    As to point 6, there is a wealth of evidence in the form of Mr Albanese’s contemporaneous file notes which contradict the assertion that the Applicant was not informed about how the case was going. In this regard, the signed file note referred to at [40] is of particular significance, and I reject the suggestion, first raised by the Applicant in his cross-examination, that he was pressured into signing the file note.

19. [65]

    As to point 7, both Mr Albanese, as reflected in his file notes, and Mr Doyle in his description of his customary practice, did advise the Applicant as to his rights to give evidence, and not to go into evidence as well.

20. [66]

    As to point 10, this is a reference to the fact that Mr Doyle did not lead from the Applicant evidence of the kind contained in his Affidavit drafted in support of the stay application. Enough has already been said to the effect that that evidence was not only inadmissible, but could not have properly been elicited.

21. [67]

    Finally, insofar as in his evidence, even if not in a ground of appeal, there is a complaint that Mr Doyle did not respond to the trial judge’s inquiry as to whether or not bail was sought, nothing in the transcript suggests that the trial judge made such an inquiry and it is quite implausible that he would have done so, the jury having just convicted the Applicant on 5 counts which the trial judge described in his sentencing remarks as “these extreme criminal acts”. Indeed on 8 September 2017, following the verdict, the trial judge announced that the Applicant would be remanded in custody pending the sentencing hearing.

22. [68]

    The evidence that was led and, in particular, Mr Albanese’s file notes and record of detailed instructions from the Applicant, not only in relation to his own evidence and what he had to say about Mr Naboulsi but also the detailed comments and instructions he obtained from the Applicant as to the Crown witnesses (typed notes of which were also in evidence) shows that the Applicant was represented with competence, diligence and attention to detail. The Applicant’s difficulty lay in the fact that, as the trial judge noted in his sentencing remarks, the Crown case against him, although circumstantial, was an extremely powerful one. Nothing advanced during the hearing of this matter pointed in any different direction.

23. [69]

    In Birks at 685, in a passage from which relevant extracts were cited by the High Court in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]-[80] and Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [2], Gleeson CJ said:

24. [70]

    For the foregoing reasons, the application for leave to appeal should be dismissed.

25. [71]

    BUTTON J: I agree with Bell P.

26. [72]

    WRIGHT J: I agree with the orders proposed by Bell P for the reasons his Honour has given.