Mashayekhi v R (No 2) [2021] NSWCCA 161

Mashayekhi v R (No 2) [2021] NSWCCA 161

Leave to appeal was refused because the decision not to proceed with the stay application was made with the applicant's knowledge and instructions; the stay application could not have succeeded because its allegations were inadmissible, conclusory or speculative and the Dietrich issue had been resolved by legal representation; the applicant did give evidence at trial; and his counsel's forensic decisions were within professional and ethical constraints and did not cause a miscarriage of justice.

Jurisdiction
Australia
Judgment Date
14 July 2021
Procedural Posture
Criminal Appeal Against Conviction; Application for Leave to Appeal / Application for Extension of Time and Leave to Appeal in the Court of Criminal Appeal After Conviction in the District Court of New South Wales
Outcome
Extension of time granted; leave to appeal refused.
Legal Topics
['miscarriage of Justice' 'stay of Proceedings' 'trial Counsel Conduct' 'ethical Duties of Barristers' 'right to Give Evidence' 'circumstantial Evidence']
['criminal Law' 'criminal Procedure' 'appeals' 'professional Responsibility'] ['miscarriage of Justice' 'stay of Proceedings' 'trial Counsel Conduct' 'ethical Duties of Barristers' 'right to Give Evidence' 'circumstantial Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Conviction; Application for Leave to Appeal / Application for Extension of Time and Leave to Appeal in the Court of Criminal Appeal After Conviction in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to seek leave to appeal.' "Whether the trial miscarried because the applicant's permanent or temporary stay application was not pursued." 'Whether the applicant was denied an adequate opportunity to present his case or give evidence to the jury.' "Whether trial counsel's decisions not to put certain allegations, call certain evidence, or pursue certain lines of cross-examination amounted to a miscarriage of justice." "Whether the applicant's legal representatives were biased against him or failed to provide competent representation."]

Ratio Decidendi

Leave to appeal was refused because the decision not to proceed with the stay application was made with the applicant's knowledge and instructions; the stay application could not have succeeded because its allegations were inadmissible, conclusory or speculative and the Dietrich issue had been resolved by legal representation; the applicant did give evidence at trial; and his counsel's forensic decisions were within professional and ethical constraints and did not cause a miscarriage of justice.

Court Disposition

Extension of time granted; leave to appeal refused.

Orders

  • ['Grant an extension of time for leave to appeal.' 'Leave to appeal refused.']