Mashayekhi v R [2021] NSWCCA 55

Mashayekhi v R [2021] NSWCCA 55

The majority held that the applicant had no substantive proceedings pending before the Court because his Notice of Intention to Appeal had expired, his later extension application had been refused, and his Notice of Appeal filed on 9 November 2020 was not duly given within the time required by the Criminal Appeal Rules. Section 61 of the Bail Act 2013 (NSW) was therefore not enlivened, s 67 did not apply, and the Court lacked jurisdiction to hear the bail application. On the assumed existence of jurisdiction, the applicant had not shown special or exceptional circumstances under s 22 because the appeal prospects could not be assessed as inevitably successful on the incomplete material and...

Jurisdiction
Australia
Judgment Date
09 April 2021
Procedural Posture
Release Application for Bail in Relation to Proposed Conviction and Sentence Appeal / Court of Criminal Appeal Hearing of Bail Application, With Preliminary Question of Jurisdiction
Outcome
Application struck out for want of jurisdiction.
Legal Topics
['release Application Pending Appeal' 'jurisdiction of Court of Criminal Appeal to Hear Bail Application' 'pending Proceedings' 'extension of Notice of Intention to Appeal' 'special or Exceptional Circumstances for Bail After Conviction and Sentence' 'self Represented Appellant in Custody']
['criminal Law' 'bail' 'criminal Procedure' 'appeals'] ['release Application Pending Appeal' 'jurisdiction of Court of Criminal Appeal to Hear Bail Application' 'pending Proceedings' 'extension of Notice of Intention to Appeal' 'special or Exceptional Circumstances for Bail After Conviction and Sentence' 'self Represented Appellant in Custody']

Case Brief

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Procedural Posture

Release Application for Bail in Relation to Proposed Conviction and Sentence Appeal / Court of Criminal Appeal Hearing of Bail Application, With Preliminary Question of Jurisdiction

Legal Issues

  1. 1 ["Whether the Court had jurisdiction under the Bail Act 2013 (NSW) to hear and determine the applicant's release application where no appeal was pending before the Court." "Whether the applicant's notice of appeal was duly given and within time under the Criminal Appeal Act 1912 (NSW) and Criminal Appeal Rules (1952 SI 2) (NSW)." 'Whether, if jurisdiction existed, the applicant established special or exceptional circumstances justifying bail under s 22 of the Bail Act 2013 (NSW).' "Whether the applicant's asserted prospects of success on appeal and difficulties preparing an appeal from custody amounted to special or exceptional circumstances."]

Ratio Decidendi

The majority held that the applicant had no substantive proceedings pending before the Court because his Notice of Intention to Appeal had expired, his later extension application had been refused, and his Notice of Appeal filed on 9 November 2020 was not duly given within the time required by the Criminal Appeal Rules. Section 61 of the Bail Act 2013 (NSW) was therefore not enlivened, s 67 did not apply, and the Court lacked jurisdiction to hear the bail application. On the assumed existence of jurisdiction, the applicant had not shown special or exceptional circumstances under s 22 because the appeal prospects could not be assessed as inevitably successful on the incomplete material and...

Court Disposition

Application struck out for want of jurisdiction.

Orders

  • ['Application struck out for want of jurisdiction']