Court of Criminal Appeal Supreme Court New South Wales 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 not pursue the stay application. The principal issues on appeal were whether there had been a miscarriage of justice because the stay application was not pursued and, although he gave evidence, evidence as to what had been contained in the Applicant's Affidavit in support of the stay application had not been adduced. The Court held (Bell P, Button and Wright JJ agreeing), refusing leave to appeal: 1. The decision not to proceed with the stay application was taken both to the knowledge of and with the concurrence of the Applicant: [47] (Bell P); [71] (Button J); [72] (Wright J). 2. The failure to proceed with the stay application did not, and could not have, occasioned a miscarriage of justice in circumstances where the allegations contained in it, including suggestions of collateral purpose on the part of the Crown, were conclusory or speculative assertions which would not have been admissible: [49] (Bell P); [71] (Button J); [72] (Wright J). 3. The trial did not miscarry on the basis that the Applicant's counsel did not lead evidence from him of the kind contained in his Affidavit in support of the stay application in circumstances where such evidence was not only inadmissible, but could not have properly been elicited, bearing in mind the professional and ethical obligations of the Applicant's counsel: [54], [66] (Bell P); [71] (Button J); [72] (Wright J). 4. Contrary to his assertions otherwise, the Applicant did have the opportunity to give evidence at his trial, and did give such evidence: [58] (Bell P); [71] (Button J); [72] (Wright J). 5. The Applicant's case was presented both fairly and competently by his legal representatives, and there was no basis for the contention that the Applicant's legal representatives were in some way biased against him: [59] (Bell P); [71] (Button J); [72] (Wright J). Judgment 1. BELL P: Mr Amin Mashayekhi (the Applicant) was charged on indictment with the following offences: "AMIN MASHAYEKHI 1 Between the 1st day of May 2014 and the 17th day of April 2015, at Burwood in the State of New South Wales, with menaces demanded from Qing Yao SONG money, namely, various sums up to $150,000 with intention to steal the said property from Qing Yao SONG. S 99(1) Crimes Act 1900 Law part code 484 AND the Director of Public Prosecutions FURTHER CHARGES that AMIN MASHAYEKHI 2 On the 14th day of May 2014, at Burwood in the State of New South Wales, intentionally did deliver a document to Qing Yao SONG, also known as Edward SONG, knowing that the document contained a threat to kill Qing Yao SONG. S 31(1) Crimes Act 1900 Law part code 25 AND the Director of Public Prosecutions FURTHER CHARGES that AMIN MASHAYEKHI 3 On the 17th day of August 2014, at Gwynneville in the State of New South Wales, intentionally damaged the house at 15 Sidney Street, Gwynneville the property of Qing Yao SONG by means of fire. S 195(1)(b) Crimes Act 1900 Law part code 823 AND the Director of Public Prosecutions FURTHER CHARGES that AMIN MASHAYEKHI 4 On the 19th day of August 2014, at Burwood in the State of New South Wales, intentionally damaged a white Toyota Hilux Utility New South Wales registration BN75YS and a silver Nissan Dualis New South Wales registration BMH95A the property of Qing Yao SONG. S 195(1)(a) Crimes Act 1900 Law part code 819 AND the Director of Public Prosecutions FURTHER CHARGES that AMIN MASHAYEKHI 5 On the 24th day of March 2015, at Burwood in the State of New South Wales, in the company of other unknown persons, intentionally damaged a white Toyota Hilux Utility New South Wales Registration BN75YS and a silver Nissan Dualis New South Wales Registration BMH95A the property of Qing Yao SONG by means of fire. S 195(1A)(b) Crimes Act 1900 Law part code 67770". The Applicant pleaded not guilty to each of these charges. 1. 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. 2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Another such application on 27 May 2019 saw the Notice of Intention to Appeal extended to 2 August 2019; 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. 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. 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. 1. 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: "There is no evidence before the Court to adequately explain or account for the extensive delays in bringing an appeal, which now exceed three years. Although the applicant informed the Court in submissions that the delay was attributable to the difficulties he had in securing and maintaining legal representation, and in preparing his case himself from custody, that information does not appear to account for a delay of this length. Further, there is insufficient information to enable the Court to properly assess the merits of the proposed appeal in the context of the present application. That is a feature of some relevance to the decision to extend time or otherwise and it is one properly made by the bench constituted to hear the application for leave to appeal." 1. 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. 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: "1. There was a substantial miscarriage of justice for the reason that the court conducted the trial contrary to the rules enshrined in the International Covenant on Civil and Political Rights (ICCPR). The court ignored the appellant's Application to Stay, which references to actions against him breaching Article 2, Article 7, Article 17, and Article 26 of ICCPR. Therefore the trial was conducted contrary to the rules in Article 14 and Article 16 of ICCPR. A fair-minded observer might reasonably apprehend that the accused did not receive a fair public hearing by a competent, independent and impartial tribunal. 2. The trial miscarried because the defence counsel deprived the appellant of an adequate opportunity to present his case to the jury. The failure of the defence counsel to advise his client on his right to give evidence caused the appellant to take the stand, hoping to give evidence in accordance to his chosen defence and his instruction to his solicitor, only to be dismissed by his barrister. 3. The appellant's trial contains a material irregularity; the appellant was not given an opportunity to be heard by the jury. Notwithstanding the defence case was available to the court, the prosecutor, and his defence team in the form of Application to Stay, affidavit, and written submissions. At the close of the objective examination of the counsel's conducts, the appellant is entitled to a reasonable apprehension that he had not received an independent legal advice without bias throughout his trial, thus causing a miscarriage of justice". The stay application 1. 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: "• In the last two years I have secured many different Solicitor['s] services at a cost, however they have failed to address these issues to the Court. • [The] Crown is aware of the issues and to date they have failed to take any action. … • I have requested my previous Solicitors on numerous occasions over the past 2 years to bring these matters to the attention of the Courts but they have all failed to do so. All avenues have now been exhausted in the quest to right what is wrong. • Unfortunately there are fundamental defects that go to the root of a trial and there is nothing anyone can do which can relieve any unjust consequences. • These serious issues of fraudulent documents and statements by the Crown and their Witnesses and the methods of Crown investigations will display the Crown's intentions are of an ulterior purpose to abuse the process of the criminal court rather than act as the minister of justice. On these grounds I have decided to submit an application to stay the proceedings. • I have been working on this application since Friday 14 July, the date I was last in the court. However, I will require an additional week to complete my reports and witness statements before I can provide the application to the Court. Accordingly I am requesting an extra week's adjournment so I can complete my application for the Courts." 1. 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: "In your complaint to this office you have raised concerns about the conduct of police. In particular you claim you were the victim of a fraud and that police have acted improperly by wrongly preferring charges against you as the alleged offender. You allege that police have based their decision to charge you on false and/or misleading information. The Ombudsman takes a number of factors into account in deciding how a complaint should be handled. Pursuant to the legislation, a complaint may be declined if the complainant has or had an alternate and satisfactory means of redress for their complaint. I have considered your complaint carefully and I have determined that an investigation into the concerns you have raised is not required. I have made this determination on the basis that the court is the appropriate forum for you to raise any concerns you may have about the conduct of the police officers. In this regards the court constitutes an appropriate alternative and satisfactory means of redress for your complaint about the adequacy of the police investigation, the facts which have been relied upon and the decision by police to lay the charges. If you have not already done so, you may wish to seek independent legal advice with respect to court proceedings. You can contact this office again if the court makes adverse comments about the actions of police and further consideration will be given to your matter at that time." 1. 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: * Proceedings brought for a collateral purpose; * Undermining public confidence in the administration of justice; * My evidences stolen and destroyed; * Police misconduct at the investigatory stage; * Deprivation of committal proceedings; * Lack of finance and no legal representation; and * Failure of disclosure. 1. 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: "The predominant purpose of the prosecutors in instituting and maintaining the criminal proceeding, the subject to the present proceeding, is based on institutional discrimination/relentless bullying and also to exert pressure upon me to stop the civil proceedings against the alleged victims for their private interest and/or to deny my basic rights to access the justice system. The initial fraud [has] never been investigated by the police and that has infected the investigation process. [The] Crown have used the civil case to artificially create a criminal case to relentlessly bully me and not for justice. [The] Crown has departed from their purpose and duty to serve as the minister of justice and they have dedicated their work and power for the private purpose of a group of individuals and to satisfy their own personal hatred toward me. These purposes are not proper purposes and it is against the public interest to initiate and maintain a criminal proceeding for such purposes." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. The Applicant was convicted and, in his remarks on sentence, the trial judge said: "The entirety of the evidence establishes that the offender made the calls (the intercepted conversations) as identified by the officer. On the totality of the evidence I conclude that all of the vindictive activities directed at Mr Song were either by the offender or at his behest. There is no other reasonable explanation of the evidence… He made assertions in his evidence at trial but generally he did not have any credibility. He failed to acknowledge the mountain of circumstantial evidence against him. He was clearly implicated. He just put his head in the sand and pretended it did not exist." Evidence on appeal The Applicant 1. 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: "16. The Counsel then proceeded to trial saying to me contradictory account of why the Application to Stay is not going to be heard. He once said the judge does not want to hear it, then he said he is only getting paid by Legal Aid to attend trials, then he said don't worry I am going to bring it up in the trial I will let you give evidence to the Jury. 17. The trial proceeded without any mention of the Application to Stay by the Crown Prosecution or my legal team or the trial judge." 1. The Applicant then said at paras 19–22 of his Affidavit: "19. On the first day of the trial without receiving my consent, the counsel formulated [sic] addressed the court with a new case theory contrary to my chosen defence and unsupported by any evidence. My case was about the illegality of the investigation of the police to such magnitude that amounted to oppressive conduct and denial of my basic rights as a human and jurisdictional misconduct by the NSW Police by being involved in a fraud or knowingly giving support to a fraudulent person helping him to suppress my legal rights as a human. I identify Mr Naboulsi to be an agent for the police or the alleged victims organising some of the criminal activities where the police and the alleged victims could not personally involve for example organising people to burn the alleged victims' cars and organising meet ups to the alleged victims' house to perform premeditated scenarios or to destroy my evidences in a robbery and to threaten me and my family for the purpose of obstructing the course of justice. Mr Naboulsi in my case was only a person whose action could prove the overall misconduct in the investigation and not the person who committed all the crimes. Mr Naboulsi was only acting on the instruction from the police and the alleged victims and helping their cause to entrap me for the purpose of getting relief from his criminal conducts. My case was that the whole prosecution was an abuse of the process of the court and the crime would not have existed in the absence of illegal actions by the alleged victims and the police and their agents. That was the main reason my Application to Stay was before the court. 20. Mr Doyle's case was to blame Mr Naboulsi for the crimes without any motive. 21. During the course of trial I was confused. I wasn't sure when my case is going to be represented to the jury. I kept giving instructions to my barrister but he kept ignoring my instructions. I got to the point that I believed that I had to wait until it is my turn to present my case. I told to myself when it is my turn, I will give evidence first then I will call the witnesses and introduce evidences (play recordings) to the jury; exactly what the prosecutor did. I believed that I had to give the Crown Prosecution time to finish their case first before I can call witnesses to ask them question or to even cross-examine the Crown witnesses. I can recall my barrister told me we can't disturb their case, we got to let them run their case, we will have our chance to defend later. This was in response to a question that the counsel asked me that if I wanted the recording to be fully played in the court and I said yes. The prosecution ended up playing the parts that they wanted and I was not allowed to play the recordings to the jury because the barrister advised me that the parts that I wanted to play are not relevant to the Crown's case and it will the waist [sic] of the court's time to play the recordings to the jury even if it is a part of my case. 22. The counsel continued the trial without cross-examination of the key witnesses based on my case and instructions. He invited Mr Naboulsi to the court but he refused to ask questions in regards to the sexual assault, robbery, threats, and his relationship with the police and the reason that his charges was getting dropped by the police all the time. Mr Naboulsi claimed to be my employer and the counsel refused to ask him how can he be employing someone when him and his wife are taking social security payment from the government. The counsel refused to ask questions from the arresting officer in regards to planting a phone on me and if he did not plant the phone why he was the only person who ever seen it and if he was ready to test his DNA and finger print on the phone. The counsel refused to ask questions from alleged victims in regards to their conducts in the fraudulent commercial lease and their involvement in my entrapment with cooperation from the police and Mr Naboulsi. Mr Doyle refused to ask questions from female witness (Ms Makhmudkhodjaeva) about her being sexually assaulted by Mr Naboulsi on the night of my arrest and extorted money from for [sic] my bail application. Mr Doyle refused to ask the witness about the robbery and threats to her life and her children's life. Mr Doyle refused to ask question from the female witness (Ms Denholm-Ryan) testifying in regards to involvement of Mr Naboulsi to the crimes and not me about the type of work that Mr Naboulsi was doing for the police and how he was getting away with his crimes and details of threats and robbery in my place of residency and destruction of my documents. Mr Doyle refused to ask the Officer in Charge about her skill on voice identification and why she could only identify my voice and not anyone else's voice on the recordings. He refused to ask the officer about her involvement with the department of Immigration in regards to a child visa. He refused to ask questions about her conduct in the case by directing the alleged victims to defraud me for the purpose of entrapment. He refused to ask about her overall conduct in the case and why other persons such as Mr Naboulsi were not charged even if the witnesses clearly determined their role. Mr Doyle refused to ask question from the officers in charge of investigation and their conducts towards the fraudulent commercial lease." 1. 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. 2. 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. 3. 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." 4. At para 33 of his Affidavit, the Applicant said: "On the 8th of September when they called us to the court around lunchtime, my barrister told me, jury has come back with a note. I told him if they are back with guilty verdict please apply bail for me on spot so I can organise my life and see what I can do about my children so they don't get effected if I have to go to prison. I can remember the solicitor was starring[sic] down at me when I told the barrister about the bail application. The barrister nodded with approval. The jury came back with the guilty verdicts to all the charges and the trial judge asked my barrister if he is going to ask for bail. He put his head down and didn't answer to the judge's question. My counsel asked me to call him from prison so he can discuss what happened in the trial." 1. 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: "Q. Do you accept from the file note that you were comfortable with Mr Doyle making forensic decisions on your behalf in the conduct of the trial? A. No of course not. Q. Yet you signed this note? A. Yes that's the-- Q. To say that you were happy? A. Yes because of the force I was under because they put me under so much force and pressure and they just keep me going, bring him back, going, bring him back, going bring him back and asking me so – they put me through so many interrogation that I didn't care what they are doing. If they say that we want to kill you I would sign it, I was under pressure I couldn't-- Q. Nobody said that they were going to kill you from your legal team did they, nobody said that to you? A. No but all the threats that they were before them they didn't do nothing about it, that means that they are trying to help them how would I know then I tried to help them I didn't feel safe." 1. 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. 2. 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. Mr Albanese 1. 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". 2. 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. 3. 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. 4. 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. 5. 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). 6. 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: "During this conference, it was re-iterated to Mr Mashayekhi that the Crown case was particularly strong due to voice identification evidence of threatening phone calls and Mr Mashayekhi's car having been recorded travelling to and from Mr Song's residential address in close proximity to when acts of arson and malicious damage are alleged to have occurred". 1. 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: "During that conference, Mr Mashayekhi accepted that the telephone intercept material was very damaging to his case. Mr Mashayekhi informed me he was content that he was receiving a fair trial. Mr Mashayekhi informed me he was content that we had explored Mr Naboulsi's evidence by way of a Basha enquiry and that he instructed us not to call him as part of the defence case as his evidence was not favour[ab]le. Mr Mashay[ek]hi was content with Mr Doyle's decisions during the trial and with Judge Frearson SC's directions to the jury with respect to his right to silence. At the conclusion of the conference, I invited Mr Mashayekhi to print his name, sign and then date the file note as being a true and accurate representation of our conversation. Mr Mashayekhi printed his name, signed and then dated the file note". 1. 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: "Amin Mashayekhi 30 Aug 2017 Conference at DCLC — Played all telephone intercepts & client made notes of all calls which were & weren't his. — Played ERISP interview to jury. — Accepts phone calls are very damaging • No jury reactions — Client says that it's a fair trial so far • Client does not want Maher Naboulsi to be called as part of Defence case. He does [??] on documents – But will leave to Mark to make decision • Don't want to call him — Need to see if Peta comes. — Happy with Mark & decisions he's made at the moment — Good that Judge gave directions re right to silence — Happy that we called Naboulsi in BASHA enquiry & at least explored his evidence, despite that it was unfavourable". 1. The Applicant cross-examined Mr Albanese about this file note in the following sequence of questions and answers: "Q. Yeah but why did you ask me to sign this? A. Because it went to the conduct of the trial and how and what your view was with respect to how the trial was proceeding. Q. So you were worried about my view of the trial is that is that right? A. I didn't say I was worried no. Q. So you just made a random note is that your duty to make a note after the Crown Prosecution's case ended or? A. Not my duty no. Q. So is that what you do in every trial? A. Yes it's a common practice of mine yes. Q. And you get the clients to sign it is that right? A. On occasions yes. … Q. It was an important file note? A. Yes. Q. That's why you got me to sign it is that right? A. I asked you to read it and to confirm that that was an accurate representation of our conversation and then I invited you to sign, print your name and to date it yes. Q. What was the importance of this document compared to other ones? A. This file note in particular covered a number of significant areas with respect to the conduct of the trial." 1. 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. 2. At paras 22–25 of his Affidavit, Mr Albanese said: "22. On no occasion did I provide Mr Mashayekhi with legal advice that was biased. I provided Mr Mashayekhi with independent legal advice prior to and during the trial, including frank advice regarding the difficulties he faced in overcoming a strong Crown case. I always acted in his best interests in the preparation of and throughout the conduct of the trial. 23. I held a number of conferences with Mr Mashayekhi and Mr Doyle in the lead up to and during the trial where we provided ongoing advice and sought updated instructions. When a conference was held in the absence of Mr Doyle, I would ensure that either electronic or hard copy notes were provided to Mr Doyle for his records. 24. I acted at all times within Mr Mashayekhi's instructions. 25. If Mr Mashayekhi asserts that I am the solicitor that 'stared down at him' in paragraph 33 of his affidavit dated 9 November 2020, I reject that assertion. I maintained a courteous and professional relationship with Mr Mashayekhi at all times". Mr Doyle 1. In his Affidavit sworn 4 June 2021, Mr Doyle said at paras 4-8: "4. As to the stay application I do not have a good recollection other than I did not think it had any merit. 5. I did not consider Mr MASHAYEKHI to be mentally unwell or unfit for trial. 6. I disagree with much of what MR MASHAYEKHI asserts in his affidavit. In particular I did not collude with the Crown during his trial. 7. I did my best to run MR MASHAYEKHI's defence however many matters he wanted me to put at his defence were not able to be lawfully put. I remember explaining this to my client but he had difficulty understanding this. I tried to explain that I was bound by the Bar rules as to matters that I was allowed to put lawfully to witnesses in his trial. 8. I do not recall the reasons a Bail application was not made after the verdict." 1. 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: "You had difficulty understanding that - you wanted me to put a lot of matters in your defence and you had difficulty understanding that I couldn't put a lot of those matters because I didn't have anything to back that with, because there's bar rules, which mean that I can't just put things that aren't backed by independent evidence. I can't just put fanciful notions. So I was having difficulty getting that across to you that I couldn't put things that I didn't have any backing for because that's a breach of the bar rules. … you weren't having difficulty understanding English, you were having difficulty understanding the concept that I couldn't put your case theory because the bar rules prevented me from doing that. There was [sic] a lot of things that I couldn't put… I would have tried to have put it in as plain a language as I could and get it across to you that way. But that was the difficulty in that trial. That's something I do remember." 1. 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. 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. 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. 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. In this context, rule 42 of the Barristers Rules provides that: "A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's wishes where practicable." 1. Rule 61(a) of the Barristers Rules provides that: "A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material then available to the barrister". 1. Rule 64 of the Barristers Rules provides that: "A barrister must not allege any matter of fact in: (a) any court document settled by the barrister, (b) any submission during any hearing, (c) the course of an opening address, or (d) the course of a closing address or submission on the evidence, unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so." 1. Rules 65 of the Barristers Rules provides that: "A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper basis for it, and (b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out." 1. 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]." 2. 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: "Counsel have a wide discretion as to the manner in which the litigation is conducted, the discretion extending to matters such as the witnesses to be called, the questions to be asked either in chief or in cross-examination, the evidence to be adduced, and the lines of argument to be pursued or abandoned. The client is bound by the decisions made in the exercise of these discretions." 1. 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. 2. 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. 3. 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: "A review of the transcript suggests that counsel for the applicant endeavoured to deal with matters raised in his client's case, noting the constraints of his professional responsibilities and the admissibility of evidence. For example, the record demonstrates that the legal representatives for the applicant issued a subpoena to Mr Naboulsi and caused him to attend. Counsel then examined him on a Basha inquiry under the protection of s 128 certificate to determine what evidence he would give as to his involvement in these offences. Mr Naboulsi gave evidence that he had nothing to do with the extortion or threats against Mr Song and it was not his voice on the recorded calls. Ultimately counsel for the applicant did not call him at trial. The evidence given on the Basha inquiry did not support the applicant's assertions that Mr Naboulsi was acting as an agent of the state or that he was complicit with Mr Song in carrying out the offences. It may be inferred that counsel for the applicant had an insufficient basis to raise the serious allegations referred to at AWS [39] nor were these questions relevant to the trial or likely to elicit admissible evidence under the Evidence Act 1995 (NSW)." (footnote omitted). 1. 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: "1. He believed that my instruction and application to stay had no merit which is the proof of prejudiced mind. 2. He acknowledges that he did not follow my instruction because he believed they are against Bar rules yet he does not identify any Bar rule they might have been against. 3. He invented my defence case in contradiction to my instructions (Please refer to a document provided by Mr Albanese page 73 and 74 of Prosecution Documents). 4. He did not object any evidences including exhibits and voice identifications in contradiction to my instructions. 5. He refused to cross-examine the witnesses in accordance to my instructions. 6. He acknowledged that he believed I was fairly unintelligent yet there is no evidence of him advising me about the way he was thinking about my case. 7. There is no evidence that he ever advised me in regards to my rights to give evidence. 8. He submitted to the Jury facts that contradicted my evidence in chief. Page 29 of my submission point [64]. 9. He refused to play recording from the brief of evidence. He refused to contact witnesses. He refused to play recordings that was [sic] relevant to the trial. 10. He abandoned me on the stand while he knew for what reason I took the stand. 11. He did not apply bail for me when I specifically asked him to do so." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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: "1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." This was not such a case. 1. For the foregoing reasons, the application for leave to appeal should be dismissed. 2. BUTTON J: I agree with Bell P. 3. WRIGHT J: I agree with the orders proposed by Bell P for the reasons his Honour has given. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2021