Dedeoglu v The King - [2023] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dedeoglu v R [2023] NSWCCA 126
Hearing dates: 14 November 2022
Date of orders: 09 June 2023
Decision date: 09 June 2023
Before: Harrison J at [1]
Fagan J at [206]
Yehia J at [263]
Decision:
(1)    To the extent required, grant leave to appeal.
(2)    Dismiss the appeal against conviction.
(3)    Allow the appeal against sentence.
(4)    Quash the sentence imposed upon Mr Dedeoglu on 7 April 2020 by her Honour Noman DCJ and in lieu thereof sentence Mr Dedeoglu to an aggregate term of imprisonment of 7 years commencing on 2 April 2019 and expiring on 1 April 2026 with a non-parole period of 5 years expiring on 1 April 2024.
(5)   Nominate the following indicative sentences:
(a)   Count 3, 6 months imprisonment.
(b)   Count 1, 12 months imprisonment.
(c)   Count 2, 6 years imprisonment.

Catchwords:
CRIME – appeals – appellant convicted by jury of two counts of sexual assault without consent and one count of sexual touching without consent
CRIME – appeals – where ERISP allegedly wrongly admitted – where misleading DNA evidence allegedly wrongly admitted – where phone records allegedly “contradict” Crown case – where misleading screenshot evidence allegedly wrongly admitted – where alleged failure by DPP to provide appellant with “all trial materials” – where evidence of complainant’s friends allegedly wrongly admitted – where evidence of doctors allegedly “[not] adequate” – where non-contemporaneous statement of OIC allegedly wrongly admitted – where diary of OIC allegedly wrongly admitted – where failure to call witnesses alleged – where trial judge alleged to have helped Crown – where trial judge allegedly gave misleading directions as to consciousness and consent – where trial judge allegedly misdirected jury on nonresponsive answers – where trial judge allegedly misdirected jury on complainant’s evidence – where representation allegedly incompetent – where alleged bias – where verdict allegedly unsafe and unsatisfactory – where judge allegedly misdirected jury as to elements of the offence
CRIME – appeals – appeal against sentence – aggregate sentence – whether sentence manifestly excessive
EVIDENCE – criminal trials – application of the rule in Browne v Dunn to criminal trial by jury – whether timeliness and consistency of complaint and general improbability of accused’s account sufficient to warrant application of the proviso

Legislation Cited:
Crimes Act 1900 (NSW) ss 61I, s61L
Criminal Appeal Act 1912 (NSW) s 6
Evidence Act 1995 (NSW) ss 33, 66, 89, 89A, 90, 104
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
Agresti v The Queen (2017) 13 ACTLR 1; [2017] ACTCA 20
Browne v Dunn (1893) 6 R 67
Davies and Cody v The King (1937) 57 CLR 170 at 180; [1937] HCA 27
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183
Dogan v R [2020] NSWCCA 151
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83
Hoferv R (2021) 395 ALR 1; [2021] HCA 36
JW v R [2022] NSWCCA 206
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Monteiro v R [2011] NSWCCA 113
MWJ v R (2005) 222 ALR 436; [2005] HCA 74
Nudd v The Queen [2006] HCA 9
R v Birks (1990) 19 NSWLR 677
R v Coswello [2009] VSCA 300
R v Manunta (1989) 54 SASR 17
R v MAP [2006] QCA 220
R v Miletic [1997] 1 VR 593
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Zhou v R [2021] NSWCCA 278

Category: Principal judgment
Parties: Onur Dedeoglu (Appellant)
Rex (Respondent)
Representation:
Counsel:
I Nash (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/263370
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

20 February 2020

Before:

Noman SC DCJ

File Number(s):

2018/263370; 2019/237101; 2021/302374

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

Mr Dedeoglu was tried and convicted of three counts of sexual offending before a jury and Noman DCJ on 20 February 2020, contrary to the Crimes Act 1900 (NSW) ss 61I (count 2) and 61L (counts 1 and 3).

The complainant, then 17 and in the aftermath of her Trial HSC examinations, went out with some friends to celebrate. Some members of the group travelled to McDonald’s after which a trio, which included the complainant, decided to share an Uber home.

Mr Dedeoglu, the driver of the Uber, picked up the trio at a location within a couple of minutes walk from McDonald’s. The complainant was the last of the group in the Uber, and at some point fell asleep in the back seat.

CCTV obtained from the complainant’s neighbour depicted the Uber arriving at the complainant’s home just after 1:30AM; the complainant did not alight. Mr Dedeoglu then switched off the vehicle’s satellite navigation device two minutes later while still idling outside the home of the complainant, before switching it back on at 1:50PM, now parked at Bondi Beach.

The complainant described having woken up while the car was still parked at the beach to digital penetration and kissing performed by Mr Dedeoglu, which he had commenced while the complainant was still asleep. She pushed him away, then left the vehicle and walked home, on the way sending a Snapchat to SO, a friend, depicting herself seemingly distraught and with the caption “i feel like I was justctakkeb advantage of”

Mr Dedeoglu had argued in his defence that the encounter happened, but at the complainant’s initiation.

A jury convicted Mr Dedeoglu on 20 February 2020. Her Honour then imposed an aggregate sentence of 8 months and 6 years with an aggregate non parole period of 6 years.

Mr Dedeoglu on appeal took issue with both the conviction and the sentence, and, inclusive of the various sub-grounds, marshalled more than 35 discrete grounds of appeal.

The Court held (granting leave to both streams of appeal, though dismissing the conviction appeal and allowing the sentence appeal):

In respect of the conviction appeal globally:

Broadly, although there were some misgivings in the course of the trial, most were not sufficient enough to warrant concern, not occasioning a miscarriage of justice against Mr Dedeoglu (Per Harrison J, Fagan J and Yehia J agreeing)

In respect of the incompetence of counsel ground (Ground 16):

Per Fagan J (Yehia J agreeing)

Counsel’s failure to put Mr Dedeolgu’s explanation for the complaint to the complainant would serve no forensic purpose nor add anything to Mr Dedeoglu’s response to the Crown case, on account of the remarkable consistency and inherent believability of the complainant’s account; there was no miscarriage of justice: [231]-[235], [243], [246]
In light of the ultimate weakness of Mr Dedeoglu’s response to the Crown case, there is also no miscarriage of justice that can arise from the trial judge’s direction to the jury as to his counsel’s failure to put this explanation to the witness: [249]

Nudd v The Queen [2006] HCA 9; Hofer v The Queen [2021] HCA 36

Even were there to be a miscarriage of justice, it would not be a substantial one and the proviso ought to be invoked: [250]-[252]

Hofer v The Queen [2021] HCA 36; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Per Harrison J (in dissent):

The failure by the defence counsel to put the only available counterfactual for the complaint to the complainant on behalf of Mr Dedeoglu, compounded by the trial judge’s direction regarding the rule in Browne v Dunn (1893) 6 R 67, led to a miscarriage of justice depriving Mr Dedeoglu of a fairly open chance of an acquittal: [179]-[180]
While evidence of the complainant is consistent and timely, the loss of Mr Dedeoglu’s only possible defence should prevent the application of the proviso: [197]
Discussion as to the application of the rule in Browne v Dunn against defendants in criminal trials: [167]-[177]

R v Birks (1990) 19 NSWLR 677; R v Manunta (1989) 54 SASR 17; Hofer v R (2021) 395 ALR 1; [2021] HCA 36; R v Miletic [1997] 1 VR 593; MWJ v R (2005) 222 ALR 436; [2005] HCA 74; R v MAP [2006] QCA 220; R v Coswello [2009] VSCA 300

Per Yehia J (writing separately on this issue):

Observations as to the responsibilities of trial judges in directing juries regarding conduct of accused’s counsel: [266]-[268]

In respect of the appeal against the sentence:

Per Harrison J (Yehia J agreeing):

When accounting for Mr Dedeolgu’s prior lack of convictions, and weighing the offending up against the more serious and extreme conduct that may constitute the same offence (without diminishing how the offending may have borne on the complainant), the sentence was manifestly excessive: [202]-[203]

Per Fagan J (in dissent):

The sentence was not manifestly excessive: [254]-[261]

Judgment

HARRISON J: Onur Dedeoglu was tried at the Sydney District Court before Noman SC DCJ and a jury on an indictment that contained 3 counts, as follows:

Count 1: On 26 August 2018, at Bondi Beach in the State of New South Wales, did assault [the complainant], and at the time of the assault, committed an act of indecency on [the complainant].
Count 2: On 26 August 2018, at Bondi Beach in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent, knowing that she was not consenting to the sexual intercourse.
Count 3: On 26 August 2018, at Bondi Beach in the State of New South Wales, did assault [the complainant], and at the time of the assault, committed an act of indecency on [the complainant].

The trial commenced on 11 February 2020. The jury returned verdicts of guilty on all counts on 20 February 2020. Counts 1 and 3 are offences contrary to s 61L of the Crimes Act 1900 and carry a maximum penalty of 5 years imprisonment. Count 2 is an offence contrary to s 61I of the Crimes Act and carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.
On 7 April 2020, her Honour imposed an aggregate sentence on Mr Dedeoglu of 8 years and 6 months with an aggregate non-parole period of 6 years. Her Honour nominated the following indicative sentences:

Count 3: 9 months imprisonment
Count 1: 2 years imprisonment
Count 2: 8 years imprisonment with a non-parole period of 5 years and 6 months.

Her Honour took account of 371 days of pre-sentence custody and ordered the sentence to commence on 2 April 2019. The first day on which Mr Dedeoglu will become eligible for release on parole is 1 April 2025.

Grounds of appeal

Mr Dedeoglu appeared in this Court without legal representation or other assistance. By his notice of appeal, he proposes 21 grounds of appeal against his convictions (several of which include sub-grounds) and a single ground in relation to his sentence. These are dealt with below.

The Crown case

The Crown case was as follows.
In August 2018, the complainant was a Year 12 student living with her sister (MT) and her parents in Brighton Boulevard, North Bondi.

Events on evening of 25-26 August 2018

On the evening of 25 August 2018, the complainant attended the 18th birthday party of her friend EF at that friend's home in Bondi Junction. Her recollection was that she arrived at the party at "around 7pm". The complainant said that while at the party she drank about six glasses of homemade alcoholic punch.
She left the party with EF and two other friends in an Uber at about 9.30pm and travelled to the Star Bar, which was located on George Street in Sydney's central business district. While there, the complainant said she was dancing on the dance floor most of the time and did not "have any drinks". CCTV footage from the Star Bar depicted the "front door entrance and the dance floor". Constable Keremelevski, the officer in charge of the investigation, gave evidence that footage of the dance floor was functional but "very unclear and there was a huge number of people within that dance floor, and it was impossible to find any person, particularly (the complainant) and her friends". He said the video file from the front door was "corrupted" and explained that the "file size was at zero kilobytes". No CCTV footage from the Star Bar was played to the jury.
The complainant said that after leaving the Star Bar, she went with a group of about 10 to 15 school friends to a nearby McDonald’s restaurant. She said that while there she purchased some food and then left. Before doing so she spoke to a male friend, HW. She said that HW had ordered an Uber and asked if she and another male friend, AS, wanted to share the ride as their homes were close to each other. CCTV footage of events at McDonald’s was tendered in the Crown case during the complainant's evidence and became Exhibit I. She identified herself and a number of her friends and the clothes she was wearing and confirmed that at one point the footage depicted her having "stumbled over [her] feet for a second". Constable Keremelevski subsequently confirmed that the relevant footage had been played.

The Uber ride and alleged incident

As at 25 August 2018, Mr Dedeoglu was an Uber driver. It was not in dispute that it was Mr Dedeoglu who accepted HW's request for a car. The complainant recalled that she, HW and AS were picked up by Mr Dedeoglu at a designated location within a couple of minutes' walk from McDonald’s. She said that "at this point, I was definitely feeling quite tired, probably from the effects of alcohol".
The complainant could not recall much being said in the car and fell asleep during the journey. She said that AS got out first, and HW after that, but could not recall saying goodbye to them. She did not recall speaking to the driver or making any observations of him during the journey. When she woke up, it was dark, and the car was facing the beach.
Satellite navigation data obtained from Uber and footage from a motion-activated CCTV camera installed on a neighbour's home, recorded Mr Dedeoglu’s vehicle arriving outside the complainant's home in Brighton Boulevard just after 1.30am on 26 August 2018. The CCTV footage depicted some of the vehicle's movements in the minutes immediately afterwards. It was not in dispute at trial that at 1:32am Mr Dedeoglu switched off the satellite navigation device while still outside the complainant’s home and switched it back on at 1:50am when the vehicle was at the beach.
The complainant's cross-examination included questioning about events outside her home and prior to arrival at the beach. That questioning included the suggestion that she had been awake and conversed with Mr Dedeoglu after he had arrived outside her home. It was put to her that she had said to Mr Dedeoglu from the backseat, amongst other things, that she did not want to go home, that she enquired about attending his home and asked if there was a possibility that she could do something with him in the car. The complainant's responses to each of those propositions, as well as a number of others about events in the car outside her home and before she said she woke up, was "I don't remember that" or "I don't agree with that" (or similar). Towards the end of that part of her cross-examination, her Honour asked the following question:

“HER HONOUR: Just so I understand your answers when you keep saying, ‘I don't remember that’, are you saying that you may have been awake and don't remember it or are you saying you were asleep and that's why you don't remember it?
A. I'm saying I'm asleep.”

Mr Dedeoglu gave detailed accounts about his interactions with the complainant while outside her home both in an ERISP on 27 August 2018 and in evidence during the trial.
The complainant said that upon waking "she felt someone kissing me, and with their hands down my pants, in and - on and inside my vagina.” She said she quickly realised it was the Uber driver (i.e. Mr Dedeoglu) as there was no-one in the front seat and the car was not parked at her house but rather a parking spot between the North Bondi RSL and the North Bondi Surf Club. When later asked to describe how the person's hand was inside her pants and around her vagina, the complainant responded, "It wasn't - it was just - it was quite uncomfortable. It wasn't painful. I was uncomfortable and - yeah."
The complainant's description of the alleged assaults included the following:

SOLICITOR ADVOCATE: … I'm just going to take you back again to the Uber journey. I'm going to ask you about the evidence you gave earlier about waking up and feeling the hand of the Uber driver in your underpants, touching, and then his finger inside your vagina. Are you able to describe how he was doing that with his hand in terms of what level of force was being used?
A. It wasn't - it was pretty uncomfortable. He was doing it quite firmly and aggressively, yeah.”

The complainant's evidence was that after she realised what was happening, she "kind of resisted”, and Mr Dedeoglu said in a foreign accent "it's okay, it's okay". She recalled pushing him away but didn't remember saying anything back. She said, "I went to open the door and it was fine. I got up and I remember my jeans were undone, so when I got out of the car, I had to re-button them and zip them up. And yeah, then I quickly walked home.” When asked to estimate the time between waking and getting out of the car the complainant replied "[i]t could have been maybe up to a minute, because I mean, once I kind of realised, I kind of froze for a second to take a sec of what was happening. And then yeah. I - as soon as I could, I got out”.
While walking home, the complainant contacted a friend, SO, using Snapchat. She said that SO was a friend that she had met up with after arriving at the Star Bar. The complainant said she sent a "Snapchat” to SO with a caption saying something like “I've been taken advantage of"'.
SO was called as a witness by the Crown. She said she had received the Snapchat message from the complainant at about 1.50am. SO said she had taken the screenshot because "Snapchat lasts only ten seconds, so just - a screenshot is the only means of keeping it”. SO said that by the time she received the Snapchat message she had returned home. Three other friends, who had also been at the Star Bar earlier in the evening (MS, IZ, SS), were staying at her house and had returned with her. As to the content and format of the Snapchat communication she received from the complainant, SO also said:

"So on Snapchat, you can also send videos that last as long as however long the video's meant to go for, and in those videos she seemed, yeah, flustered and she was trying to explain. From what she was saying in the videos, we - we, being me, (IZ), (MS) and (SS) - thought that she meant some - when the Uber dropped HW home that someone else had gotten in the car. That she was really - really upset and we were very - struggling to piece together what she was trying to say.”

Both the complainant and SO gave evidence of a phone conversation they had shortly after the Snapchat message had been sent. Exhibit B and the complainant's phone records established that SO had called the complainant at 1.52am. SO's evidence of the call included that the complainant "was still crying and upset”, that "she was just, kind of, blurting out what had happened" and that "he's kissing me and my pants were undone". The complainant's evidence included:

"(SO) was on the phone to me, kind of just saying you know - comforting me and asking me what happened and I said to her - I honestly don't know exactly what happened in that phone call because that was - it was all quite a distressing time. I was crying and - yeah, she's - she's telling me to go home and tell my mum."

A number of written messages exchanged between the complainant and SO on their phones (from around the time of initial Snapchat message and then later in the day on 26 August 2018) became Exhibit B.

lZ and MS were also called as witnesses by the Crown. Both gave evidence of what they recalled of the communication between SO and the complainant during the early morning hours of 26 August 2018 while they were at SO's home. IZ said SO "started to receive Shapchats" from the complainant. As to the content of the Snapchats, IZ said, "I don't really recall what they said or anything". IZ said that the Snapchats were followed by a phone call between SO and the complainant.
The balance of IZ's evidence-in-chief as to communication by the complainant to SO was as follows:

“Q. And did you overhear some of that?
A. No, not particularly. Obviously, I heard (SO's) kind of end of the phone call. I - we were in the same room but I don't recall hearing anything [the complainant] said.
Q. Did you make any observations about (SO's) voice?
A. She seemed quite like worried and that something had happened that - that was concerning her.
Q. You're not sure if the phone was loudspeaker or not. Is that right?
A. No.
Q. And then after the phone call, (SO) explained that something had happened with [the complainant]--
A. Yes.
Q. --and the Uber driver.
A. With the Uber driver.
Q. The next morning you woke up and (SO) was on the phone.
A. Yes.
Q. And did you hear her say something?
A. I woke up to (SO) being on the phone with [the complainant] and she was just- kept saying, ‘Hey, you need to tell [JJ]. You need to tell your mum’, but that's all I really remember hearing.”

MS's evidence was that "there was Snapchat. [The complainant] sent (SO) Snapchat”. When asked if she had seen the Snapchat, MS said, "No. I didn't see it". Her evidence continued:

“Q. Did you become aware of the contents?
A. Yes.
Q. How did you become aware?
A. (SO) screen shotted it and we kind of discussed it.
Q. Was there a phone call after that?
A. Yes. There was.
Q. What do you remember of the phone call?
A. I remember (SO) rang [the complainant] and [the complainant] was hysterical, crying and could hardly get words out.
Q. Are you able to remember any of the words that she did get out or not?
A. I can't. I remember we were saying you need to go and tell your mum and go inside. But she - I remember her saying she can't because she was hardly getting words out because she was crying.
Q. What was (SO) doing?
A. She was trying to calm her down.
Q. Was that effective?
A. Not really. She was in a bad state.
Q. After that phone call was there a discussion amongst the girls?
A. A little one because we were just confused because we weren't sure what happened and why she was crying.
Q. Do you remember (SO) telling [the complainant] to get some sleep and that they'd talk in the morning?
A. Yes.
Q. In the morning you woke up and you heard (SO) and (SS) talking amongst themselves?
HER HONOUR: (SO) and [the complainant], was it?
SOLICITOR ADVOCATE: I think it was (SO) -
Q. Was it (SO) and (SS)?
A. (SO) and (SS) were talking to each other.
Q. And then (SO) told you about a conversation she'd had with [the complainant]?
A. Yes. I think they might have been on the phone when l was already asleep.”

Other than confirming that a statement she gave to police on 7 February 2020 was completed by reference to diary entries made in September 2018, MS was not cross-examined about the complainant's communication with SO after the alleged incident.
During the investigation police attempted, with some success, to obtain other CCTV footage that may have depicted relevant events. Ultimately the only additional footage played in evidence was from the North Bondi RSL club. That footage depicted the complainant walking past the front door of the club. Still images from the footage were tendered without objection.
The complainant said that when she arrived home she was too scared to tell her mum (JJ) about the incident. The complainant said she went to bed and fell asleep.

Complainant's disclosures regarding incident during the day on 26 August 2018

The complainant said she woke around 7:00 - 8:00am. She contacted SO, who asked how she was and again suggested that she tell her mother or sister about the alleged incident. At the breakfast table the complainant's mother asked, "what was wrong last night" but the complainant again said "nothing" and that it was just "boy problems".
The complainant said that later, after her parents had left the house, she sent a text message to her sister (MT) asking her to come to her bedroom. The complainant said the family had guests staying who she did not want to talk in front of. The complainant said she was crying when her sister arrived. She said her sister asked, "what's wrong?” and the complainant told her, "Last night in the Uber... I woke up - I was asleep and I woke up, and the Uber driver was all over me. And he was, you know, kissing and touching and finger into my vagina and stuff." They then both cried, and her sister hugged and comforted her. Her sister told her to tell their mother.
MT was called as a Crown witness. Her account of events after entering the complainant's bedroom included the complainant telling her of the incident in the Uber. MT recalled the complainant saying, "I just woke up and I remember he was kissing me and his hands were in my pants...". MT said that the complainant also described having been out, splitting an Uber with HW and someone else, that the incident took place after the boys had got out of the car, although she did not remember them doing so, but the next thing she remembered was waking up and thinking, "Why is [HW] kissing me?" MT said that the complainant described hearing a voice with an accent, saying, "It's okay, it's okay." MT said the complainant described someone kissing her and that person had his hands in her pants. MT said the complainant told her she got out of the Uber, did up her pants and called SO. MT said she was not sure of what the complainant had told her about that exactly.
The complainant and MT both described MT leaving the house but agreeing to be present for support when the complainant told their mother. The complainant said she then telephoned another school friend, RD and told her, "[l]ast night when the boys got out of the Uber, the Uber driver was, you know, kissing and touching me." RD told her to tell her mother about it.
It had been arranged that several students from the complainant's school would go out together for lunch. The complainant attended the lunch, because she wanted to get out of the house to take her mind off what had happened. At the lunch the matter was not discussed because other people were there who did not know about it. During the journey from the lunch, the complainant was in the car with RD, SO, SG and SS (school friends). SS was one of the friends staying with SO the previous night. They discussed what had taken place with the complainant and Mr Dedeoglu. The complainant's friend told her to tell her mother about the incident.
The complainant arrived home at 4pm. Her mother was cooking dinner. The complainant told her about the incident and the conversation lasted for approximately 30 minutes. She cannot recall the exact details of the conversation but recalls that she described what had occurred.
The complainant's mother was adamant that the complainant report the matter to police, but the complainant felt scared. The complainant then reported the matter to police, and after doing so, at approximately 9pm, attended Royal Prince Alfred Hospital where she saw a doctor at the "sexual assault service."
The complainant's mother (JJ) also gave evidence of conversations she had with her daughter on 26 August 2018. In summary, JJs evidence was that the complainant described waking up in the backseat of the Uber with Mr Dedeoglu kissing her and with his hands down her pants. JJ also gave evidence that the complainant told her she heard the driver say, 'It's okay, it's okay” in a foreign accent and that she pushed him away and got out of the car.
The complainant attended the Royal Prince Alfred Sexual Assault Service on the evening of 26 August 2018. While there, Dr Natalie Woods took swabs from the complainant's external labia, vulva and lower vaginal canal. The complainant declined a full physical examination, telling Dr Woods that she had no post assault symptoms and no physical injuries. A sexual assault counsellor was also present.

Mr Dedeoglu’s response to the Crown case

Mr Dedeoglu did not dispute that he had had sexual contact with the complainant in the backseat of his Uber vehicle while it was parked at Bondi Beach between about 1.40am and 1.50am on 26 August 2018. His case was that the sexual interactions were consensual and instigated by the complainant.
Mr Dedeoglu gave an account of relevant events in an ERISP with the police on 27 August 2018. That ERISP was admitted over objection together with the transcript. He also gave evidence at the trial before the jury in terms broadly consistent with his account in his police interview. Consistently with the matters put to the complainant during her cross-examination about the events outside her home, Mr Dedeoglu’s account included a conversation with her after arriving in Brighton Boulevard, which included her saying that she did not want to go home, asking if she could go to his home and whether there was any possibility that she could do something with him in the car.

Ground 1: ERISP interview should have been excluded.

This ground was a general contention to which Mr Dedeoglu directed more detailed submissions under the following grounds, which may conveniently be considered as sub-grounds of his general contention that the ERISP should have been excluded.

Ground 1A: Not being allowed to contact lawyer or friend (as a support person) prior to interview.

Ground 1B: Part 9 document never translated to applicant

Ground 1C: Informed wrongly during arrest that allegation was one of “sexual harassment” not “sexual assault”

Ground 1D: The trial unfairly affected due to mistranslation and mistyping issues of ERISP interview.

Ground 1E: The Court misled with incompetent expert certificate and translation mistakes of ERISP interview. The Expert hasn’t been called as a witness to the court.

Ground 1F: The applicant gave an interview under bad conditions.

Ground 1G: I am disagree with her Honour’s conclusions in the Principal Judgment for “The ERISP interview is not excluded”.

Mr Dedeoglu was interviewed on 27 August 2018 at Liverpool Police Station. The interview commenced at 7.26pm and concluded at approximately 9.20pm. It was conducted with the aid of a Turkish interpreter. He was asked the standard series of questions at the conclusion of the interview. He agreed that he had made the record of interview of his own free will and that no threat or promise had been held out to him to give the answers he gave. The question directed to whether he had any complaints about the manner in which he was interviewed does not have a recorded answer.
The ERISP was admitted over objection following a voir dire conducted between 11 and 13 February 2020. Her Honour admitted the ERISP in a judgment published on 13 February 2020. Her Honour addressed the same contentions about why the ERISP ought to have been excluded as those that Mr Dedeoglu now wishes to rely upon in support of this ground.
A significant aspect of this ground is a complaint that Mr Dedeoglu was not able to understand what was occurring as the interpreter failed properly to communicate with him adequately or to interpret or translate correctly. The general complaint appears to be a challenge to the availability of the several factual findings made by her Honour. Given the apparent significance of these factual findings, the Crown in this Court provided a summary of the not inconsiderable evidence adduced on the voir dire. In these circumstances, the Crown drew attention to the existence of some uncertainty with respect to the standard of appellate review applicable to evidentiary rulings of the type raised in JW v R [2022] NSWCCA 206.
In Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183, Beech-Jones CJ at CL at [38] considered the issue as it might apply to s 90 of the Evidence Act 1995:

“[38] At the hearing of the appeal, a question arose as to whether the standard of review by this Court of a trial judge’s decision to exclude evidence under s 90 is the ‘correctness standard’ or subject to the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 (‘House’). In light of the decision of this Court in Rogerson v R; McNamara v R [2021] NSWCCA 160 at [544], [547]-[548], it may be that it is the correctness standard at least so far as s 90 requires a determination that it would be unfair to use the evidence. Ultimately, it is not necessary to decide this issue as the result is the same regardless of the applicable standard of review.”

The issue was discussed in JW v R with respect to s 138 of the Evidence Act at [68]-[69] as follows:

“The applicable standard of appellate review
[68] The standard of appellate review to be applied on an appeal from a decision made pursuant to s 138 of the Evidence Act is the subject of some uncertainty. In R v Riley [2020] NSWCCA 283 (Riley), Bathurst CJ, although ultimately finding it unnecessary to decide, expressed the view that the exercise to be undertaken in applying s 138 admits of only one outcome, and that the review of such a decision is not subject to restraints of the kind considered in House v The King (1936) 55 CLR 499; [1936] HCA 40. After referring to a number of authorities, the Chief Justice said the following (at [109]–[112], Wilson J agreeing at [139]):
‘Section 138, at least in criminal proceedings (see Kadir v R; Grech v R (2020) 267 CLR 109; [2020] HCA 1] at [13]), seeks to balance the competing public policy considerations identified by Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74; [1978] HCA 22, namely, the desirable goal of bringing to conviction the wrongdoer, and the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law. In that context it was emphasised that unfairness to an accused is only one factor which is to be taken into account.
Section 138(1) poses the question of whether the desirability of admitting illegally or improperly obtained evidence outweighs the undesirability of doing so. Subsection (3) refers to a series of factors which are to be taken into account in determining the matter. Those matters, whilst mandatory, are not necessarily exhaustive.
Though it is correct that the matters to be taken into account in s 138(3) pull in different directions, and it is certainly correct that minds might differ on the question of whether the desirability of admitting the evidence is or is not outweighed by the undesirability of doing so, there can only be one correct answer. It seems to me that ultimately, the question posed by the section demands a unique outcome in the sense described by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30] at [49]. Further, with respect to a matter which involves important competing questions of public policy, it does not seem to me that merely because the decision by the primary judge could be said to involve an evaluative process, a court of appeal should not substitute its own view on the binary question if it considers that the conclusion reached by the trial judge was incorrect: see SZVFW at [85] This approach is consistent with the approach taken in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 to appeals concerning s 97(1)(b) of the Evidence Act.
In these circumstances, were it necessary to reach a concluded view on this issue it is my opinion that recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King.’

[69] This Court’s decision in Rogerson v R [2021] NSWCCA 160 at [542]–[548] contains a similar analysis in relation to s 135 of the Evidence Act: see also Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.”

In my view, none of Mr Dedeoglu’s complaints concerning the reception of his ERISP is significant. Put another way, I consider, in the events that occurred and having regard to the way in which Mr Dedeoglu responded to the Crown case, that the reception of his interview with the police was advantageous to him, and not otherwise.
Mr Dedeoglu accepted that he had performed the physical acts that formed the basis of the charges against him. His interview shows that he consistently maintained that he did so with the complainant’s consent. He did not attempt during his evidence at trial to distance himself from any part of the account that he gave to the police and embraced the version that it contained. His consistency in that respect could not have been anything but favourable to him.
The objections that he now seeks to take to the reception of his ERISP are therefore only explicable upon the basis that, as a (now) self-represented applicant in this Court, he is determined not to let any possible argument in his favour go unexplored. As will be apparent, one of his major complaints is that English is not his first language and that, even with the assistance of an interpreter, about whose performance on his behalf he also complains, he was placed at a considerable disadvantage.
Although it was not available at the hearing of his appeal in this Court, Mr Dedeoglu’s wife wrote to the Registrar in terms that raised her husband’s difficulties with English as a matter of concern. That email was as follows:

“TO WHOM IT MAY CONCERN
Dear Sir/Madam,
My name is Svetlana DEDEOGLU, wife of Mr. Onur DEDEOGLU who is in Junee Correctional Centre awaiting his decision on his Appeal to COURT OF CRIMINAL APPEAL which was heard on 14th of Nov 2022. He had requested for transcript of the APPEAL which he got but he has few concerns in regard to his Transcript
1. He did not use any interpreter
2. There are a lot of typo logical mistake which as per him has changed the meaning of the submission
3. Some of his spoken words are not in the transcript may be because of his accent
4 He insists that it could significantly affect his Appeal Hearing as the honourable judges can infer different meanings as to what he is saying.
5. Because of this he is worried that he will miss the opportunity of a fair hearing
6. As it is already more than 3 months and his judgement could be out in any day he is requesting to look into this matter as soon as possible so he gets a fair go.
7. this is because his appeal has already been delayed by 2 years due to adjournments and he fears that he will spend a significant amount of time in Custody if he is successful.
IF THE JUDGES ARE GOING TO DECIDE ON THE CASE BASED ON THE TRANSCRIPT THEN IT COULD SIGNIFICANTLY AFFECT THE DECISION.
Therefore i request you to take the appropriate action on this or ADVISE ME THE CORRECT PROCEDURE
Thanks and best regards,
Svetlana DEDEOGLU”

I consider that, both in dealing with Ground 1 in particular and as an observation of the way in which Mr Dedeoglu conducted his appeal in general, it was my impression that his command of English was particularly impressive. Mr Dedeoglu addressed this Court without resorting to the interpreter who was present. Moreover, Mr Dedeoglu’s written submissions, which extend to several hundred pages of handwritten material, bespeak an impressive command of the language. I would find it extremely difficult to support a contention that Mr Dedeoglu was disadvantaged during his interview with the police for any of the reasons that he has given. On the contrary, the reception of his ERISP into evidence has provided a contemporaneous version of events that was repeated in his oral evidence at trial.
Her Honour’s decision to admit the record of interview cannot in my view be faulted. It is unnecessary for present purposes to resolve the issue of whether her decision should be assessed by reference to House v The King or the test of correctness.

Ground 2: Jury mislead(ed) by the Crown, due to wrong DNA evidence.

Ground 2A: With DNA tapelift R24 FX000498112, DNA sample taken from the complainant jacket’s zipper, but Crown submitted that evidence as, that DNA sample taken from the complainant’s jean’s zipper.

Ground 2B: Even if though that tapelift (R24) would have been taken from the jean’s zipper that evidence shouldn’t been submitted to jury as “the accused’s DNA found on jean’s zipper area” where Expert certificate says “Onur Dedeoglu cannot be excluded as a minor contributor to this mixture”

Ground 2C: Because the complainant’s clothes had been put into ‘pillow case’ and kept into pillow case for 14 days before DNA samples from them, the DNA evidence shouldn’t have been admissible as there were likely happened cross-contamination.

These grounds may also be considered together.
Mr Dedeoglu’s contention that inaccurate DNA evidence was admitted at the trial is correct: evidence was led that inaccurately attributed the results of the testing of the sample taken from the zipper of the complainant’s jacket to results of the sample taken from the area of the zipper of the jeans she was wearing. There was, therefore, no evidence that Mr Dedeoglu’s DNA was located on the zipper of the complainant’s jeans.
Ultimately, by agreement, the DNA evidence was led through PCSC Keremelevski as follows:

“Q. The DNA of the accused was also found on the front left upper zip area of the black jeans?
A. Yes.”

The Crown now contends, and I accept, that the original error did not result in a miscarriage of justice. As the Crown’s submissions correctly identify, the issue at trial was consent. Mr Dedeoglu’s case was that he had been physically intimate with the complainant on the back seat of his vehicle. He did not dispute that he had kissed the complainant’s face and chest and that he had inserted his finger into her vagina. It would in these circumstances have been unsurprising that Mr Dedeoglu’s DNA was found on the complainant’s clothes, including the zipper of her jeans.
Moreover, nothing about any specific DNA results assumed significance in the context of the limited factual dispute about what occurred in the car. Mr Dedeoglu’s account was that he had made an unsuccessful attempt to undo the complainant’s jeans. For example, his account in his ERISP included the following:

“Q157 Yeah, well sort of took the bag. She, she let me kiss. All right. And then, so we continued a bit more. [Then I first tried to unbutton her trousers] So, and I tried to undo the uh trousers. [But I couldn’t unbutton she had the belt over there] Oh, but I couldn’t, I tried but I couldn’t. I couldn’t because she had a, what do you call this?
Q158 A belt.
A (int) A belt. She had a belt.
A Uh, seat belt.
A (int) A seat belt.
Q159 Oh seat belt, yeah, yeah, yeah. Yep.”

Mr Dedeoglu gave evidence at his trial. His evidence-in-chief included the following account:

“Q. While you were kissing her breast were you doing anything with your hands?
A. INTERPRETER: I was caressing her stomach with my left hand.
Q. What happened then, sir?
A. INTERPRETER: At the time getting more courage myself from her body movements and her actions I tried to open her pants, the button of the pants. But I couldn’t open it.
Q. Why couldn’t you open the pants button?
A. INTERPRETER: Had the seat belt on and she was wearing pants which were sort of high that level and the pants she was wearing were very tight.
Q. You mentioned the seat belt. Is this the seat belt that she was wearing at the time?
A. INTERPRETER: Yes.
Q. How did that present difficulty with you unbuttoning the pants?
A. INTERPRETER: Because she was wearing her seat belt on and her body was slightly downwards and that also the belt was covering the button of the pants. But the main reason why I couldn’t open her pants, not exactly because of the seat belt, but because the top of her pants were creased and the button was not showing itself clearly. I didn’t try too much. I tried with my left hand. After that I stopped. Then she started helping me.”

Given that Mr Dedeoglu did not dispute the fact that he touched the complainant’s jeans in an attempt to open them, the inaccurate description of the DNA result could not in my view have given rise to a miscarriage of justice. The observations of Beech-Jones CJ at CL in Zhou v R [2021] NSWCCA 278 at [22] are apposite:

“[22]… To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or ‘realistically [could] have affected the verdict of guilt’ (at [123] per Gageler J) or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’ (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ).”

The error did not figure in either party’s respective closing submissions or in her Honour’s summing up. So much is unremarkable. It would have been otherwise if the trial involved a fiercely contested factual dispute about whether or not Mr Dedeoglu had touched the complainant’s clothing at all or where it was alleged he did so. These things were not in issue at trial in this case.
Finally, and perhaps most significantly, counsel for Mr Dedeoglu addressed the jury in final submissions in terms that included the following:

“Now ladies and gentlemen, the DNA evidence, it really doesn’t take the Crown case any further because as previously stated in the opening and here in my closing address, and you’ve heard the accused in both interview and in evidence, he doesn’t deny kissing the complainant on the breasts or the lips. Similarly, he doesn’t deny engaging in any digital vaginal intercourse. The fact that through the officer-in-charge you heard that the accused DNA is found on the complainant’s clothing including on the inside of the underwear and inside of the bra cups, the singlet top and also the left upper zipper area of the black jeans should come as no surprise.”

These grounds of appeal are without merit.

Ground 3: The complainant’s mobile operator (OPTUS) record contradicts to the Crown case. That record also contradicts the complainant’s and number of witness’ evidence.

Mr Dedeoglu contends that the complainant’s Optus mobile phone records contradict aspects of her account, including that she attended a birthday party at Bondi Junction prior to going to the “Star Bar” in the city. These records were subpoenaed but were not tendered at the trial. Mr Dedeoglu appears to contend in this Court that the phone records are relevant to alleged non-disclosure of relevant material. In such circumstances, there could only be a miscarriage of justice if Mr Dedeoglu were able to establish that the phone records, in the context of all of the other evidence in the trial, could support a conclusion that he was innocent or that his conviction was not established beyond reasonable doubt. Mr Dedeoglu also complains that the phone records were only made available to him on the third day of the trial by which time the complainant’s evidence had been completed as well as the fact that the late production prejudiced his ability to deal with later witnesses.
It would be possible to understand how this ground could demonstrate the existence of a fundamental unfairness if it could be shown how the phone records related to a significant issue in the trial. Several witnesses gave evidence of receiving text messages from and sending text messages to the complainant, as well as having telephone conversations with her. Mr Dedeoglu does not suggest that the records that are now available contain material that casts doubt upon any matter of significance in the trial. For example, Mr Dedeoglu submits that the complainant’s account of where she had been before the incident that gives rise to these proceedings is possibly in doubt. However, except to the extent that this may have informed her credibility or reliability on some tangential issues, it does not appear to have any bearing upon the principal issue of consent upon which the case was fought. I am unable to discern any way in which the absence of the phone records could give rise to a miscarriage of justice.
This ground is without merit.

Ground 4: Screenshot evidences should not been admissible.

Mr Dedeoglu contends that despite requests made to his legal representatives asking them to object to the admissibility of “selfie photo of complainant, text messages and chat conversations” in the form of screenshots from the complainant’s phone and the phones of other witnesses, no such objection was taken. The burden of the submission is necessarily that the objection, if taken, would have been upheld and that the material would have been excluded.
Mr Dedeoglu’s submissions document a series of correspondence between him and his legal representatives concerning the question of whether all of the screenshots from the complainant’s phone had been provided to him. However, the question of the completeness of the disclosure does not inform the question of whether the selfie that was tendered was objectionable or not. In the events that occurred, no objection was taken to the tender. Mr Dedeoglu does not indicate how in the circumstances the tender of the screenshot of the complainant’s face was admitted into evidence when it should have been rejected.

Ground 4A: There is no(t) any proof that conversations, test [sic] messages and photo made in said time between said people.

Mr Dedeoglu’s submission was in the following terms:

“The Crown has tendered many screenshots to the court, in saying those screenshots belong to the complainant’s and witnesses conversations due text messages and chat. There was not any corroboration if these conversations and text messages actually happened between them and in said time. Police haven’t got any cellbrite [sic] from the complainant and witness. Optus record contradict those text messages occurrence.”

However, as the Crown’s submissions make clear, evidence in respect of each matter complained of was adduced from the persons who sent or received the messages and images or who were involved in the relevant conversations. Moreover, those persons were not challenged concerning either the fact of the communications or their content.

Ground 4B: Some of those screenshots haven’t given to us, before the trial by DPP.

Mr Dedeoglu relies upon the statement of Senior Constable Sarah Fleming in which she describes the existence of 25 screenshots. Mr Dedeoglu was only provided with 21 screenshots. He now maintains that he should have been given four further screenshots.
Mr Dedeoglu refers to considerable emails raising concerns about the “discrepancy” between the number of screenshots referred to by Senior Constable Fleming and the number served on the defence. The issue was taken up at some length in correspondence between Mr Dedeoglu’s legal representatives and the DPP at the time. The DPP advised that the “discrepancy” was simply a mistake. No issue about the correctness of that advice was pursued in cross-examination of the OIC or at all. Mr Dedeoglu has not identified anything in the trial record that suggests that other relevant material exists.
The Crown submitted, and I accept, that Mr Dedeoglu has not demonstrated that there exists other screenshots that have not been disclosed to him, as opposed to the correctness of the explanation that the reference to 25 screenshots was simply an error. Nor has he demonstrated how it is now suggested that the alleged non-disclosure gave rise to a miscarriage of justice.

Ground 4C: The Crown has edited on screenshot unfairly and other screenshot submitted differently to jury.

This ground asserts that the Crown manipulated or deleted the content of the text messages before they were tendered in evidence. Mr Dedeoglu relies on differences between the records of the messages provided to him and his legal representatives and those tendered in evidence.
Exhibit G was an edited schedule of messages between the complainant and her sister MT. The edited portion removed from the original document was as follows:

MT: Yeah soz just cant go now on a
Complainant: yep but in the next half an hour I need you to
MR: Yep

Mr Dedeoglu maintains that the Crown deliberately removed the above material from the tender in order to make it appear that the complainant was distressed, and that the removed material was “calm and usual”.
The Crown’s submission on this issue in this Court was as follows:

“135 No objection was taken to the tender of Exhibit G. It is obvious Exhibit G had been edited to remove part of the conversation. The removal is unsurprising as the text that had been removed is not relevant to a fact in issue. The messages were not used by the Crown to show that the complainant was distressed (cf AWS [277]). The messages simply corroborate that a conversation took place between the complainant and her sister shortly after 9.36am on 26 August 2018. The messages between the complainant and MT were unimportant to the issues in the trial and they were not mentioned in either party’s closing address or in her Honour’s summing up. The important evidence in relation to MT is her observation of the complainant and the nature of the complaint made to her when she was in the complainant’s bedroom on 26 August 2018. That evidence was the subject of the Crown closing (T442) and was evidence that was unchallenged: MT was not asked a single question in cross-examination.”

I am unable to accept that this sub-ground has any merit.
Exhibit B was a schedule of messages between the complainant and SO, a conversation obtained from the complainant’s phone. Mr Dedeoglu wishes to compare that material with a version of the same conversation taken from SO’s phone. Mr Dedeoglu contends that there is a difference in the order of the comments taken from the conversation obtained from the complainant’s phone and the same conversation obtained from SO’s phone.
The Crown’s submission on this issue in this Court was as follows:

“[Mr Dedeoglu] asserts that the messages should have showed that the complainant answered, ‘yes’ to the question from SO ‘where was he stopped, like were you near your house’ (AWS p171). The submission made by [Mr Dedeoglu] is that if the complainant answered, ‘yes’ to that question then it ‘proves [his] account’ that the complainant ‘was awake’ and that they ‘had [a] conversation near her house.’ (AWS p 170) But that assertion does not accord with any of the material produced in [Mr Dedeoglu’s] affidavit at pp24-26. Neither Exhibit B, nor the conversation obtained from SO’s phone shows the complainant answering, ‘yes’ to that question.”

I am not satisfied that this sub-ground has any merit at all.

Ground 4D: Those screenshots have irrelevant and hearsay content.

Mr Dedeoglu maintains that, apart from the preceding issues, the screenshots “have irrelevant and hearsay content”. Mr Dedeoglu refers to Exhibit A, the screenshot of the complainant’s Snapchat selfie with the caption “I feel like I’ve been taken advantage of” and the complainant’s text message to her mother “I’m on my way home” that was sent contemporaneously with her entry into Mr Dedeoglu’s Uber at 1.08am.
I do not agree that this ground has merit. Neither document was irrelevant. No objection was taken to the tender. “Not admissible” means “not admissible over objection”: see Dogan v R [2020] NSWCCA 151 at [19] per Fagan J. The text message was on any view relevant to the assessment of the complainant’s state of mind at the time of the alleged offences. As the Crown submitted, it was at least arguably inconsistent with any contemplation by the complainant of having consensual sexual activity with Mr Dedeoglu. Even accepting that the text message representation was hearsay, the complainant was called to give evidence in the trial: s 66(2) Evidence Act 1995.

Ground 4E: Exhibit A screenshot of Snapshot of the complainant’s selfie should not been admissible as edited and added ‘sad’ filter in Snapchat App.

Mr Dedeoglu contends that the screenshot of the Snapchat selfie Exhibit A “should not [have] been admissible” because it was edited by the application of a “sad” filter. The question of the extent to which the complainant was upset or distressed following her sexual encounter with Mr Dedeoglu was a factual issue in the trial.
In his final address to the jury, the Crown said this:

“The striking feature of this case is we have a complaint that could not be any more immediate. It’s a matter of seconds. Maybe a minute or two. But the timing of the complaint is something that you’d think is relevant. What she says to these witnesses, and her demeanour at the time, is consistent with her being indecently assaulted and sexually assaulted.
The first complaint was to [SO]. You’ve got exhibit A, which is really quite a remarkable piece of evidence. There’s a photograph of [the complainant], and on the bottom of the photograph is her saying what’s happening. That’s a documentary complaint. Before the days of social media you just wouldn’t have seen that.
She also spoke to [SO] in a phone call, and you remember [SO], obviously, as a witness. You might find that she was a young woman who was impressive, articulate, calm and composed. She gave very credible evidence in this Court.
She said this about these moments, these first moments after the offences, ‘[the complainant] looked visibly upset, flustered; really, really upset. Her voice was shaking. She was crying. She heard a voice, a Russian voice I think she said, ‘He is kissing me and my pants were undone’.”

The nature and extent of the complainant’s distressed state also figured in her Honour’s summing up, as appears from the following extracts:

“The complainant said she started walking home. She sent a Snapchat image to her friend, [SO], saying, ‘I feel like I was just taken advantage of’, and you will remember that there are a number of mistypes in that. [SO] was concerned about what she received, she took a screenshot, and you have that as exhibit A, showing the appearance of the complainant at that time, almost immediately after exiting the Uber. Both the complainant and [SO] said that the complainant appeared distressed in the image; and you have that image to look at. You have the image and you can make your own assessment as to her appearance at that time…There was also video sent, according to [SO] after the still image, but before the call, but they were not screenshotted. [SO] said the complainant was crying, and that she mentioned being kissed and her pants being undone.
…
The Crown relies upon the complainant’s immediate and continued distress. The complainant said she was crying immediately after exiting the Uber. There is evidence from both [SO] and the complainant’s mother of distress and crying immediately after, and you also have exhibit A, the photo of the complainant. She was also showing signs of the distress the following days when she spoke with her sister, her friends and her mother.
…
[The Crown] said the complaint witnesses amply demonstrated the complainant’s level of distress about what occurred. He said the evidence did not rely exclusively on memory as there was a Snapchat photograph and text messages supporting the witnesses.”

The burden of Mr Dedeoglu’s submission is that Exhibit A had the potential, if it were altered by the use of a particular application, to give a misleading impression of the true state of the complainant’s distress. I infer that Mr Dedeoglu asserts that he did not become aware of this possibility until after the trial concluded.
The difficulty for present purposes is that there is no evidence that Exhibit A was altered before transmission to SO by use of some filter or other application so as to produce the misleading impression that Mr Dedeoglu asserts that it gives. It was never suggested to the complainant during cross-examination that she had somehow altered or edited the image. Even if such evidence were available, the impact of the alteration would in the circumstances be de minimis, as the evidence of the complainant’s emotional state is arguably evident on the Crown case by reference to other material independently of Exhibit A. I am not satisfied that Mr Dedeoglu has been subjected to any miscarriage of justice in the circumstances.

Ground 5: Dispute of the court order, I haven’t provided with all trial materials by the DPP. That situation unfairly affected my defence.

This ground was addressed by reference to the following sub-grounds.

Ground 5A: The Doctor’s SAIK notes haven’t given to me entirely by the DPP

The Crown submissions emphasise that no complaint was made during the trial by defence counsel with respect to some asserted inadequacy of disclosure concerning the SAIK notes. That is particularly unsurprising having regard to the fact that the only significant issue in the trial was consent. As the Crown submissions also emphasise, there is nothing in the trial record that otherwise suggests prejudice to Mr Dedeoglu arising from the asserted incompleteness of the SAIK notes or that what was disclosed in fact incomplete.

Ground 5B: Forensic video recorded haven’t given to me

Mr Dedeoglu complains that he was not provided with a video recording of the forensic examination conducted upon him. He maintains that he told Detective Murphy during this forensic procedure that Detective Murphy should also “take sample from her…because she also kissed my neck”. Mr Dedeoglu says that Detective Murphy’s response gave rise to a belief that the recording of the procedure would have established that this exchange took place and thereby support his claim that the investigation was inadequate.
The Crown submitted in this Court that it was open to Mr Dedeoglu at trial to put the terms of this conversation to Detective Murphy, whether or not it had been recorded. No questions were asked.
Once again, the issue is whether there was a miscarriage of justice in circumstances where the issue at trial was consent. On Mr Dedeoglu’s own account, he was in close contact with the complainant in the back seat of the vehicle for some minutes. In such circumstances, the presence of the complainant’s DNA on either his neck or his clothes would have been unremarkable and would have provided little, if any, corroboration for his claim that the complainant had kissed his neck during a consensual episode of intimacy.

Ground 5C: Some of the CCTV footages haven’t given to me and the other ones haven’t given entirely.

Mr Dedeoglu complains that he was not provided with CCTV footage obtained by the Crown from four locations. These are dealt with in turn.

The Star Bar

The complainant attended the Star Bar with her companions earlier on the night in question. CCTV footage taken from that establishment depicts the front entrance door and the dance floor. Constable Keremelevski explained that the footage from the dance floor was “very unclear and there were a huge number of people within the dance floor, and it was impossible to find any person, particularly [the complainant] and her friends”. The CCTV from the front door was said to be corrupted. No CCTV footage from this establishment was played to the jury.
Counsel for Mr Dedeoglu at trial did not challenge the officer’s summary of the dance floor footage. A number of witnesses, including SO, IZ and MS gave evidence of their observations of the complainant while at the Star Bar. Mr Dedeoglu does not identify any alleged unfairness that is said to arise from his lack of access to any of this CCTV footage, apart from an implied complaint that his legal representatives could or should have acted more quickly to ensure that the material was played to the jury.

XXX Brighton Boulevard

Mr Dedeoglu complains that he has not been provided with all of the CCTV footage relating to this location and that all of the footage was not played to the jury. This is said to be important from his perspective inasmuch as he said that he moved from a position outside the complainant’s house to another location in order to have a consensual sexual encounter with her and not contrary to her wishes. Paragraph 314 of his written submissions is in these terms:

“314 Because of the Crown hasn’t played that part of the video since I arrived there, my words doesn’t corroborated. That situation took my account down in jury eyes. The Crown used that against me in the trial and in sentence process. Her Honour said in the sentence hearing, doesn’t believe me why I removed from front of her house.”

It can be accepted for the purposes of this argument that Mr Dedeoglu perceived an advantage in a continuous and uninterrupted video depiction of the events at this location. The issue is whether the footage that was shown to the jury is all of the available material and whether the Crown explanation for its content is adequate and acceptable.
The Crown submitted that analysis of the evidence establishes that no footage was withheld and that all the relevant footage was played. The Crown submitted as follows.
The evidence about the completeness of the footage was clear. The officer-in-charge said that he identified relevant footage but that it was in “small snippets” rather than a continuous reel because the camera was activated by motion. Constable Keremelevski identified three snippets from the camera at this location that were “relevant”. Each was played and became Exhibit P. Constable Keremelevski was not challenged on that evidence. The Crown submitted that there was therefore no basis to accept Mr Dedeoglu’s assertion that the Crown did not “play that part of the video since I arrived there”. There was correspondingly no basis to question the failure to call the person from whom the police obtained the footage.
Mr Dedeoglu also contended that the Crown unfairly exploited an inaccuracy in the timestamp on the footage to misrepresent the evidence of events outside the complainant’s house. Constable Keremelevski gave evidence that the time stamp was 56 minutes fast. Mr Dedeoglu’s submissions express the view that “these CCTV footages were 60 minutes ahead”, indicating that any discrepancy would not appear to be material.
The limitations of this CCTV material would have been obvious and apparent to Mr Dedeoglu and his legal representatives at the trial. Any reliance upon it by the Crown would accordingly have been subject to those limitations. It is not possible to see how in those circumstances any miscarriage of justice could have been occasioned.

North Bondi RSL, North Bondi Fish, North Bondi Surf Life Saving Club

Mr Dedeoglu does not complain that the CCTV footage from these sources is incomplete but instead says that he did not give instructions to agree to its tender. The tender of this material was not the subject of challenge at the trial. The footage in any event does no more than corroborate the time at which the complainant returned from the area of North Bondi beach to her home in Brighton Boulevard and is accordingly uncontroversial.

McDonalds

Mr Dedeoglu describes in his written submissions what he perceives the complainant to have done as depicted in CCTV footage taken from a McDonald’s restaurant earlier on the evening when the complainant was there. That CCTV footage became Exhibit I. Mr Dedeoglu complains that the whole of the footage was not played at the trial, and that some eight minutes was cut off. The edited portions depict precisely what Mr Dedeoglu has described in his submissions. That footage shows that, on Mr Dedeoglu’s submission, the complainant was awake, conscious and energetic. He contended that the balance of the footage did not reflect either that the complainant was substantially intoxicated or tired. She was choosing food, giving her order, seated in a chair and joking with her friends. She also walked downstairs without assistance or use of the banister.
However, the emails referred to by Mr Dedeoglu make it clear that he was consulted about this material. I am unable to discern the basis of any complaint that Mr Dedeoglu could have in these circumstances.

Ground 5D: Some screenshots of the complainant’s given to me the other ones haven’t given entirely.

This ground is a repetition of a contention already dealt with under Ground 4.

Ground 5E: Uber data/statement haven’t given go me entirely and that document became available very late, as during the trial.

Mr Dedeoglu complains that the Uber records were provided to him late.
Exhibit O comprised six maps that were marked with relevant Uber tracking data and depicted the route taken by Mr Dedeoglu to the complainant’s house. The evidence also confirmed the times at which the vehicle was outside the complainant’s house and the time when the GPS device was changed so that Mr Dedeoglu’s status on the Uber application showed that he was not available to receive fare requests. After the GPS device was changed, no tracking data was transmitted.
Mr Dedeoglu has not clarified why or how this material, or its delayed production, had any potential relevance beyond the use that was made of it at the trial.

Ground 5F: Optus data /statement haven’t given to me entirely and that document became available very late, as during the trial.

This ground is a repetition of part of the submissions made in support of Ground 3.

Ground 5G: Some of statements haven’t given to me.

Mr Dedeoglu complains that the police obtained some statements that were never provided to him. These include individuals who would appear to have been responsible for the provenance of the CCTV footage from North Bondi Fish, McDonald’s and the Star Bar. The Star Bar licensee is also said to fall into this category. Mr Dedeoglu does not, however, articulate a basis upon which these contentions assist his current position in this Court.

Ground 5H: PCSC Cindy Northam’s produced photographs haven’t given to me.

Mr Dedeoglu complains under this ground that the police took photographs of the complainant’s clothes but that these photographs were not provided to him. Once again, Mr Dedeoglu does not articulate a basis upon which these contentions assist his current position in this Court.

Ground 6A: (IZ’s) and (MS’) evidence should have been inadmissible as they are hearsay evidence.

Mr Dedeoglu’s written submissions clearly and succinctly described the foundation for this ground of appeal. IZ and MS gave evidence in the trial. The Crown and the trial judge referred to their evidence as material said to support the complainant’s distress. As such, this evidence was an important part of the Crown case. However, neither witness relied upon what they heard from a phone conversation with the complainant but relied instead upon what SO told them about her telephone conversation with the complainant. That evidence was therefore hearsay and should not have been admitted.
The relevant portions of the witnesses’ evidence is as follows.
IZ described having “started to receive Snapchats” from the complainant but added, “I don’t really recall what they said or anything”. She said that after the Snapchats there was a phone call between SO and the complainant. The balance of her evidence about communications with the complainant then continued:

“Q. And did you overhear some of that?
A. No, not particularly. Obviously, I heard (SO)’s kind of end of the phone call. I – we were in the same room but I don’t recall hearing anything [the complainant] said.
Q. Did you make any observations about (SO)’s voice?
A. She seemed quite like worried and that something had happened that – that was concerning her.
Q. You’re not sure if the phone was loudspeaker or not. Is that right?
A. No.
Q. And then after the phone call, (SO) explained that something had happened with [the complainant]--
A. Yes.
Q. – and the Uber driver.
A. With the Uber driver.
Q. The next morning you woke up and (SO) was on the phone.
A. Yes.
Q. And did you hear her say something?
A. I woke up to (SO) being on the phone with Jose and she was just – kept saying, ‘Hey, you need to tell Jane. You need to tell your mum’, but that’s all I really remember hearing.”

IZ was not cross-examined about the complainant’s communication with SO after the alleged incident. She gave no evidence about the content of the Snapchats. IZ’s evidence as to representations made by the complainant was limited to agreeing that SO had told her that something had happened to the complainant. IZ gave that evidence in the context of describing SO’s voice while on the phone to the complainant as seeming “quite like worried and that something had happened”.
MS was asked whether something happened just before 2am. She said “there was a Snapchat. [The complainant] sent SO Snapchat”. MS said she did not see the Snapchat. Her evidence then continued:

“Q. Did you become aware of the contents (of the Snapchat)?
A. Yes.
Q. How did you become aware?
A. (SO) screen shotted it and we kind of discussed it.
Q. Was there a phone call after that?
A. Yes. There was.
Q. What do you remember of the phone call?
A. I remember (SO) rang [the complainant] and the [the complainant] was hysterical, crying and could hardly get words out.
Q. Are you able to remember any of the words that she did get out or not?
A. I can’t. I remember we were saying you need to go and tell your mum and go inside. But she – I remember her saying she can’t because she was hardly getting words out because she was crying.
Q. What was (SO) doing?
A. She was trying to calm her down
Q. Was that effective?
A. Not really. She was in a bad state.
Q. After that phone call was there a discussion amongst the girls?
A. A little one because we were just confused because we weren’t sure what happened and why she was crying.
Q. Do you remember (SO) telling [the complainant] to get some sleep and that they’d talk in the morning?
A. Yes.
Q. In the morning you woke up and you heard (SO) and (SS) talking amongst themselves?
HER HONOUR: (SO) and [the complainant], was it?
SOLICITOR ADVOCATE: I think it was (SO) –
Q. Was it (SO) and (SS)?
A. (SO) and (SS) were talking to each other.
Q. And then, (SO) told you about a conversation she’d had with [the complainant]?
A. Yes. I think they might have been on the phone when I was already asleep.
Q. (SO) told you that –
NORRIE: I object to –
SOLICITOR ADVOCATE: All right.
Q. You got the sense that (SO) wasn’t telling –
SOLICITOR ADVOCATE: I withdraw that.
NORRIE: I object.”

The Crown noted that MS gave no evidence as to the content of the Snapchat. Her evidence that “[the complainant] was hysterical, crying and could hardly get words out” was direct evidence of what she had overheard as to the state of the complainant’s voice on the other end of the phone. MS’s evidence about which Mr Dedeoglu now complains was not objected to at the trial. It was therefore correctly admitted: Dogan at [19]. It was in any event admissible pursuant to s 66(2) of the Evidence Act.
The Crown submitted, and I agree, that these portions of the evidence of IZ and MS were either direct evidence of what they observed and heard or were not adduced to prove the truth of any hearsay representation. The evidence was not rendered inadmissible by the hearsay rule in s 59(1) of the Evidence Act.
However, Mr Dedeoglu’s submissions would appear to go further and to impugn her Honour’s directions to the jury upon the use that they could make of the evidence of IZ and MS on this issue. Mr Dedeoglu’s submission was in these terms:

“Her Honour said in summing up that [MS] and [IZ] overheard the conversation (SU31), which was not correct. Her Honour also referred those evidence and said that; if you find that the complaints were made substantially to the effect as described by those witnesses, then you can use evidence of what was said in the complaint, ‘as some evidence that such assaults did occur’, ‘some evidence independent of the complainant’, ‘as evidence of the truth of what the complainant alleges against the accused’, ‘allegation was reliable…more likely to be accurate’. So, by those directions her Honour directed the jury to give huge weight to those evidences, but those evidence were itself inadmissible.”

I observe that no objection was taken to her Honour’s summing up at the trial and Mr Dedeoglu did not submit in terms that her Honour’s direction from which he has quoted in part was erroneous so as to have resulted in a miscarriage of justice in the sense that he was denied a trial according to law.
Moreover, and without any explanation, particular submissions or other criticism, Mr Dedeoglu proceeded to include in his written submissions the following portions from pages 34 and 35 of her Honour’s summing up to the jury:

“The Crown relies upon the immediacy of the complaints and the consistency of the complaints. If you find that the complaints were made substantially to the effect as described by those witnesses, then you can use evidence of what was said in the complaint, as some evidence that such assaults did occur. That is you can use it as some evidence independent of the evidence given to you of that incident by the complainant in the witness box. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against the accused. A jury is entitled to find that the complaint was made at a time, and in a manner that would indicate that the allegation was reliable; that is that the allegation is less likely to have been fabricated by the complainant, and more likely to be accurate.
The Crown also relies upon the complaints in another way. The Crown submits that the complaints made by the complainant, together with the circumstances in which each was made, supports the credibility of the complainant as a witness; in that it indicates the weight with which [sic] you give to her evidence as to the alleged offences.”

As I have indicated, Mr Dedeoglu has not contended that these directions were erroneous and no objection was taken to them at his trial. They do not support a conclusion that Mr Dedeoglu’s trial somehow miscarried.

Ground 6B: Not fresh in memory.

Mr Dedeoglu has submitted that IZ and MS made statements on 7 February 2020, almost one and a half years after the incident, and only four days before his trial which commenced on 11 February 2020. Mr Dedeoglu contended that there was no reason given as to why those witnesses gave statements so late. They each gave evidence within a week or so thereafter. Mr Dedeoglu submitted that at the date when they made their statements and gave their evidence in court, their memory was not fresh “about the incident”. He submitted, “there was no previous statement which may [re]fresh their memory”. Mr Dedeoglu’s submissions then proceed to set out some of these witnesses’ evidence and to quote from Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61.
It is apparent that Mr Dedeoglu wishes in some fashion to marshal a reliance upon s 66 of the Evidence Act and to say that it does not apply to assist the Crown in his case. However, this reliance would appear to be misplaced as the provision did not arise for consideration in the trial.

Ground 7: The Doctor witness hasn’t (given) adequate evidence.

Mr Dedeoglu’s written submissions in support of this ground included the following:

“368 At 26 August 2018 the complainant, her mother [CN] went to RPA Hospital for SAIK. There was also Ms Lisa Simpson, (Sexual Assault Counsellor), Dr Nicola Clare Woods examined the complainant, took history, conducted Sexual Assault Examinations and produced SAIK report which are total 58 pages. (As I explained part 5A that report hasn’t given to me entirely). ‘Intoxication’ is very important for my case but the Doctor says nothing about that, if they made any examination about intoxication or not? I haven’t been provided also ‘toxication’ [sic] part of SAIK notes.
369 The complainant has declined body check in the hospital. In my opinion she declined because she knew there were acts prior to penetration such as kissing breast, neck etc. She did not want to explore them as they are inconsistent with her account. In the court, the Crown directed to the Doctor with ‘leading question’ and the Doctor gave different explanation about declining body check.”

The applicant’s trial counsel clearly perceived the futility of disputing the fact that the complaints were made. He did not challenge either the complainant or any of the four principal complaint witnesses on that basis. With respect to the complainant’s demeanour when telling her friends and family what had occurred and the content of the complaints, counsel had no basis upon which to challenge the witnesses and did not attempt to do so.
No forensic purpose would have been served by defence counsel putting to the complainant that her complaints to friends and family were the product of regret and shame. The full statement of the matter to be put to the complainant in the suggested line of questioning would be: You were awake and consenting – and then felt regret and shame for the consensual acts after changing your mind when the acts had taken place. The first half of this composite proposition, namely, that she actually consented, was put to the complainant in protracted fine detail and rejected at every question. There was no basis upon which the composite question could sensibly be asked when the first half of it, which would be an essential constituent to identify the source of the postulated regret or shame, had already been rejected.
The proposed line of questioning would have added nothing to the applicant’s direct challenge to the complainant’s account of having slept until the intrusive sexual acts woke her, that challenge having been made by putting the applicant’s case to her in detail.
The futility of such questioning can be seen by considering the inevitable answer. Of course the complainant would say that her immediate complaints to friends and family were not mere manifestations of regret or shame. Of course she would say that there was nothing for her to have felt regret or shame about, because she had been asleep, not consenting – as she testified in chief and as she maintained throughout rigorous questioning.
There would have been no realistic possibility of the jury accepting that the complaints could be explained as the product of regret or shame. On the applicant’s case, the proposition would have to be that the complaints were an elaborate performance, because in fact the complainant had initiated the kissing and penetration about which she protested. It would surely appear to the jury that she could not have conceived of practising such a deception within a minute of getting out of the car or that, in the same timeframe, she could have worked herself into a feigned state of distress in which to send video images of herself to SO. It would be an incoherent proposition that an apparently intelligent and level headed young woman, as the complainant appeared to be through the substance of her evidence, could have thought that any potential embarrassment about the events in the car, known only to the applicant and herself, could be effectively covered up or misrepresented by immediately telling her school friends and later her family about those events, of which otherwise they would never learn.
The jury acting reasonably could not have reconciled the supposed fabrication of complaint with the level of distress that the complainant exhibited, appearing genuine to those who were closest to her. Not knowing that anyone observed her, she stood at the front of her house trying to compose herself before entering. The jury could not have reconciled the suggested line of questioning with the acceptance by SO at 1:50 am and by the complainant’s sister and mother the next day that she was deeply upset. Her immediate distress was a compelling refutation of the applicant’s case that this was a reckless young woman who thought it would be “crazy”, on the spur of a moment, to take part in sexual acts with a stranger in the back of his car and who participated enthusiastically, then equally suddenly changed her mind and became inconsolably upset.

No miscarriage of justice

In order to succeed on this appeal ground the applicant must show that counsel’s failure to challenge the complainant on the basis discussed above should cause the Court to conclude that “on any other ground whatsoever there was a miscarriage of justice”: s 6(1) of the Criminal Appeal Act 1912 (NSW). In Nudd v The Queen [2006] HCA 9 Gleeson CJ cited two authorities that identify a category of trial defects, which his Honour termed failures of process, that may give rise to a miscarriage of justice. First, at [4], his Honour cited a passage from the judgment of the Court in Davies and Cody v The King (1937) 57 CLR 170 at 180; [1937] HCA 27. The following is an extract from that passage:

[An appellate court exercising jurisdiction under the common form criminal appeal provision] will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.

Secondly, at [5] Gleeson CJ quoted from the judgment of Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 516; [1974] HCA 35. The passage cited commenced with consideration of the ground that a verdict is unreasonable and unsupported by the evidence. Barwick CJ continued as follows

That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.

In Nudd v The Queen Gleeson CJ then said this at [8]-[9]:

[8] Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Cody and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.
[9] […] It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.

In the same case and to similar effect, Gummow and Hayne JJ made these observations at [24] (citations omitted):

[24] […] "Miscarriage of justice", as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.

In the present case I do not find it necessary to decide whether counsel’s omission to cross-examine the complainant to the effect now suggested by the applicant was inadvertent or intentional or, if the latter, whether it was rational. The ground can be resolved irrespective of the reasons for the omission. It can be resolved by determining whether the absence of cross-examination on the suggested basis resulted in an unfair trial “considered by reference to an objective standard”, as contemplated by Gleeson CJ.
In Hofer v The Queen [2021] HCA 36 at [111]-[123] Gageler J considered a large number of authorities in which there have been stated and applied the principles upon which an appellate court is to discern whether a miscarriage of justice has occurred. At [114]-[115] his Honour accepted the formulation from the judgment of Gummow and Hayne JJ in Nudd v The Queen, as quoted above and now repeated:

whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.

At [118] his Honour applied to the appeal that was then before the High Court a formulation of the test in these terms:

What is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial.

At [120]-[121] Gageler J collected from the authorities the following range of expressions of the test for a miscarriage of justice, which I quote omitting his Honour’s citations:

[120]   Terms like "real chance" have been used in the context of explaining a finding of a miscarriage of justice interchangeably with terms like "significant possibility", "perceptible risk" and "substantial risk". Often it has been thought enough to refer to the error or irregularity that has given rise to a miscarriage of justice as "prejudicial" in contradistinction to "innocuous" or occasioning "no real forensic disadvantage". All are different ways of expressing a realistic possibility of a causal connection between one or more identified legal errors or procedural irregularities and the verdict returned by the trial jury.
[121]   The terminology is unimportant provided it is understood that the requisite analysis in the context of finding a miscarriage of justice is factual. The inquiry is into the tendency or propensity of an error or irregularity to have affected the basis on which the trial jury actually reached its verdict in the totality of the events that occurred in the trial that was had. The inquiry is not into the outcome of a hypothetical trial before a hypothetical jury in which the error or irregularity is assumed not to have occurred.
[123]   Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" [Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221 at 234, quoted and applied in Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40 at 60 [35] and in Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at 472 [48]], an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. […]

Applying the above tests, for the reasons given at [232]-[236] above, I do not think that defence counsel’s omission to cross-examine the complainant on the lines suggested by the applicant could realistically have affected the verdicts of guilt that were returned against him. There is no realistic possibility of a causal connection between the absence of this line of cross-examination and the guilty verdicts. If the suggested cross examination had taken place it would have been of no consequence.

Defence final address; summing up

In final address defence counsel urged upon the jury the applicant’s evidence that the complainant first invited and then accepted and responded to his sexual acts, until a point at which she broke off their physical engagement and left the car. Towards the end of his address counsel made the submission that Harrison J has set out at [163] and which I will repeat for ease of reference (with emphasis added):

Clearly, ladies and gentlemen, a point in time was reached where the complainant was unwilling to continue with what was going on sexual wise in the Uber. Even the accused says that point in time was reached at which point, no further sexual activity occurred. Although she denied it, ladies and gentlemen, I suggest to you that she changed her mind at that point in time. She even spoke about the forceful penetrations being uncomfortable. She changed her mind. I suggest to you, ladies and gentlemen, that consistent with the complainant changing her mind at that point, consistent with that, I suggest that what you have seen in the form of what the Crown has referred to as complaint evidence starting with the Snapchat and call to [SO], what we see there, I suggest, is evidence of her regret at that point in time. Regret for what she did.
Now, the fact that a complaint has been repeated, I suggest it’s simply a repetition of her regret, her shame of what occurred, consistent I suggest with her having changed her mind. Keep this in mind, ladies and gentlemen, the fact that the complainant has repeated this complaint doesn’t make it any more true.

This is the argument for which the applicant says the ground work should have been laid by cross examination of the complainant to similar effect. It is the argument of which the applicant says he was deprived by reason of the judge’s subsequent direction, brought about by the omission of that cross-examination. The argument could not have assisted the jury to decide whether there was a reasonable doubt about the complainant’s denial of consent. Counsel said, in effect, that if the jury accepted that she was initially willing about what took place “sexual wise” (or, implicitly, if they thought such willingness was reasonably possible), then the complaints were evidence that “she changed her mind” and “evidence of her regret at that time. Regret at what she did”. The argument depended upon the jury finding, from an evaluation of all the evidence, that it was at least reasonably possible that the complainant was awake and gave consent – otherwise, there was no voluntary conduct of her own for which regret could have been felt. This was merely a submission as to how the complaint evidence could be characterised if a reasonable possibility of consent appeared.
Further, in the form of this closing argument the proposition was just as hopeless as it would have been in the form of questions put during cross-examination. For the reasons given at [235]-[236] above, there was no realistic possibility of the jury accepting that the complainant’s distressed communications with her friends and family were performative or generated by anything other than a genuine belief that she had been violated in the manner she described.
The learned trial judge considered that it was not open to the applicant to submit that the complaints were “a repetition of her regret, her shame of what occurred” in circumstances where that proposition had not been put to the complainant in cross-examination. The judge therefore directed the jury in the following terms (as quoted by Harrison J and now repeated for ease of reference):

[Defence counsel] also suggested that the complainant made complaint to [SO] and to others because she regretted her conduct and felt shame. I remind you that the evidence is that prior to making complaint only the accused and the complainant were aware of what occurred in the car. The complainant was not asked any questions about experiencing regret or shame, and that being the explanation for why she complained. As a matter of fairness, if a submission is to be made about what a witness said or did then a question or questions should be posed to them so they are provided with an opportunity to respond or explain. In making this submission it is without an evidentiary basis, and it impermissibly invites speculation. There is no evidence in this trial that the complainant felt shame or regret. Although the accused said the acts were consensual, she denied consenting to any act. She said she complained about what happened.

It was correct that the complainant had not been asked any such questions and that there was no evidence that she felt the emotions of regret or shame. It was correct that she said her complaints had been about what happened. Rather than saying that the submission “impermissibly invites speculation”, in my view it would have been more accurate to say that the submission involved a characterisation of the complaints that depended upon whether the jury were unpersuaded to the requisite standard that the complainant had been asleep and not consenting.
Harrison J has referred to the exchange between the trial judge and counsel that preceded the above direction. I do not regard the terms of that discussion as material to the ground of appeal. What the trial judge said to counsel reveals why she thought the direction was necessary but the objective fact is that it was given and this Court must consider whether it amounted to a miscarriage of justice, the direction having followed from the omission of counsel to cross-examine the complainant in the way that the applicant says should have occurred. The direction may be regarded as having weakened or even neutralised counsel’s submission. No miscarriage of justice arose because the submission was in any event neutral and ineffectual. It was incapable of carrying any logical or reasonable persuasion with the jury for the same reason that the proposed line of cross-examination would have been so incapable. As with the omitted questioning, there is no realistic possibility of a causal connection between the trial judge’s directions concerning counsel’s argument and the guilty verdicts.

The proviso

In Hofer v The Queen at [123] Gageler J explained the relationship between, on the one hand, a finding that a miscarriage of justice has been established and, on the other hand, a conclusion “that no substantial miscarriage of justice has actually occurred” under the proviso. Part of [123] has been quoted above; the full paragraph is as follows (emphasis added):

[123] Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" [Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221 at 234, quoted and applied in Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40 at 60 [35] and in Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at 472 [48]], an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred.

On the view that I take of the applicant’s ground concerning counsel’s omission to cross-examine in the manner that the applicant suggests, there is no occasion to consider the proviso. If, contrary to my view, what occurred in that respect should be regarded as a miscarriage of justice I would be comfortably satisfied that the preconditions for application of the proviso are met. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 the High Court explained how the proviso is to be applied, in the following passages (some citations omitted):

[41]   That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. […]
[…]
[43]   […The] appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not "to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. […]
[44]   […] It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.
[45]   Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal [that is, to decline to apply the proviso], even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
[46]   It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso. [...]

The summary of the evidence given earlier in these reasons and my analysis of the strength of the prosecution case and of the outstanding improbabilities in the applicant’s account are sufficient to explain my conclusion that the accused was proved guilty on all three counts beyond reasonable doubt. The necessary prerequisite to application of the proviso, as referred to at [41]-[44] of the High Court’s judgment in Weiss v The Queen, is satisfied. There was no “significant denial of procedural fairness at trial” (as referred to at [45]) nor any “serious breach of the presuppositions of the trial” (as referred to at [46]). If there was a miscarriage of justice in the respect complained of by the applicant concerning omission of a possible line of cross-examination, I am satisfied that no substantial miscarriage actually occurred.

The application for leave to appeal against sentence

The only ground for which leave is sought to appeal against sentence is as follows:

Sentence is extremely lengthy for verdict.

This is a ground that the sentence is manifestly excessive. The indicative sentences nominated by her Honour and the aggregate sentence she imposed are set out in Harrison J’s judgment at [3]. The applicant seeks leave to appeal against the aggregate of 8 years and 6 months with a non-parole period of 6 years.

The objective seriousness of the offending sufficiently appears from the summaries of the complainant’s evidence that have been given in Harrison J’s judgment and, above, in my own reasons. The jury evidently accepted the complainant’s evidence beyond reasonable doubt. The learned trial judge identified some significant features of objective seriousness in the following passage:

Albeit approaching adulthood, the victim was still a child who is entitled to safety and protection from predatory sexual conduct. The offender did not respect this entitlement and took advantage of her vulnerability. She was asleep and unable to protect itself. I do not determine that the victim’s intoxication contributed to her vulnerability other than rendering her more tired.
I determined that the offender knew the victim did not consent. She was asleep and he would have appreciated that she did not and could not consent.
She was utilising commercial transport. In so doing she placed herself in a position of trust to the driver that he would transport her safely. The offender took advantage of the situation and breached the trust placed in him to convey the victim safely to her destination. It is a reality of contemporary life that taxis and Ubers are utilised, in the understanding that the user enters a stranger’s car with the expectation that they will be taken to their destination without being violated.

Those findings were open to her Honour, as was the conclusion that the point at which the applicant turned his Uber status to off-line “marks the commencement of any planning of sexual offending”. It is an inescapable inference that he intended to assault the complainant sexually from the time that he drove her away from her home and towards the parking bay on Ramsgate Avenue. Her Honour justifiably drew the following conclusion:

The nature of the offences is such that there is a strong element of general deterrence and denunciation. There is a legitimate expectation in the community that persons travelling in commercial passenger vehicles should travel without sexual molestation. It is not uncommon that passengers are intoxicated or tired. The predicament is often the motivator for utilising the mode of transport.

The factor of breach of trust and the requirement for general deterrence were not overstated. The civil and social life of the community would be very greatly diminished if a girl in her late teens following the directions of alert and protective parents could not go out in the city of Sydney at night without running the risk of sexual predation by a commercial transport driver. This case called for a sentence that would serve as a strong deterrent to others who might think that they could use a position as a driver to prey upon young female passengers.
The complainant’s victim impact statement described ongoing intrusion of disturbing thoughts concerning the sexual assault. Her studies in her final year of high school were disrupted, her enjoyment of graduation was muted and she has understandably been left with considerable wariness of the opposite sex. Damage to the community extends to the complainant’s parents, to whom it must appear an outrage that their daughter should be violated as she was, within 250 m of their home, by a driver whose breach of trust defeated their conscientious endeavours to keep her safe.
The applicant’s personal background and antecedents were unremarkable. He had no prior convictions. Her Honour accepted that he was unlikely to have similar employment on completion of his sentence and therefore unlikely to be in a position to reoffend in a similar way. He has no prior record and the learned judge accepted that there was a low risk of reoffending, in a general sense. The judge accepted that specific deterrence was not a significant consideration. On the other hand, her Honour took into account that the applicant had expressed no remorse, that he continued to deny the offending and did not accept culpability. He exhibited no insight into his wrongdoing.
In his submissions in support of this ground the applicant has listed numerous subsidiary matters. He asserts that her Honour treated the fact that there were multiple offences as an aggravating factor. That is not so. Her Honour correctly took into account that “each offence occurred not in isolation but in the context of the one period of assault”. The judge expressly stated that she was “mindful, however, to not elevate any one offence by incorporating into consideration any other act”. The applicant’s subsidiary points include a catalogue of complaints about the trial that had no apparent bearing upon sentencing, such as “wrong DNA evidence … mislead sentencing process” and “jury given ‘reckless’ direction but after verdict sentence was made due to ‘actual knowledge’”. He disputes the judge’s findings that he acted in breach of trust and that he planned the sexual offending from when he switched to “off line”; he says that the complainant’s victim impact statement was wrongly received; he complains about lack of communication with his counsel before the sentence hearing; he asserts that the learned judge should have disregarded his “background and visa status” and should have taken into account his custody conditions. I have considered all of the subsidiary points, which extend over nine pages, and I find no substance in any of them. So far as the applicant contests the learned judge’s findings of fact concerning the objective circumstances of the offending, the findings were open on the evidence her Honour had heard at trial.
As stated in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], a conclusion of manifest excess is only to be drawn if it is “plainly apparent” and, having been drawn, may “not admit of amplification”. Taking into account all relevant considerations I am far from persuaded that the aggregate sentence imposed on the applicant was manifestly excessive. That proposition is certainly not plainly apparent, in my view. I would grant the applicant leave to appeal against his sentence but dismiss the appeal.

Orders

I propose the following orders:

Grant leave so far as necessary to appeal against both conviction and sentence.

Dismiss the appeal against both conviction and sentence.

YEHIA J: I have had the considerable advantage of reading the judgments of Harrison and Fagan JJ and I am grateful for their Honours’ summary and analysis of the evidence, as well as the references to applicable principles.
I agree with Harrison J’s reasons and conclusions concerning all the grounds that he would dismiss. I do not agree with Harrison J’s conclusion with respect to ground 16 that counsel’s failure to put a proposition (or propositions) to the complainant that her immediate complaints were a product of shame and regret, either alone or taken together with the trial judge’s direction that purported to cure it, resulted in a miscarriage of justice which deprived the applicant of a chance of acquittal.
Instead, I agree with Fagan J that the conviction appeal should be dismissed. I agree with Fagan J’s analysis of the evidence and his reasons. I wish to add some brief observations with respect to the direction given by the trial judge which is set out in the judgment of Fagan J at [248]. This direction flowed from counsel’s failure to put the subject proposition.
Firstly, the failure to put a proposition that the complainant’s immediate complaints were a product of shame and regret, was not a failure to put instructions but rather a failure to put a case theory capable of suggesting an alternative explanation for the complaint evidence. This was not a case where, for example, there was a failure to put a proposition about which the accused later gave evidence. The failure to put the proposition was either inadvertent or an exercise in forensic judgment, but it could not be considered an example of recent invention on the part of the accused.
Secondly, an accused should not bear the burden of negative inferences that arise as a result of errors made by counsel, or counsel’s exercise of forensic judgment, a matter over which the accused may have no control.
Thirdly, trial judges should be very cautious about commenting on the failure of counsel to put a proposition, particularly where the failure may be inadvertent or an exercise in forensic judgment.
I am not however persuaded, in this case, that the failure to put the proposition, or the trial judge’s direction purporting to cure the failure, resulted in a miscarriage of justice.
With respect to the appeal against sentence, I agree with the orders proposed by Harrison J at [205].

**********

Decision last updated: 09 June 2023

Medium Neutral Citation:	Dedeoglu v R [2023] NSWCCA 126
Hearing dates:	14 November 2022
Date of orders:	09 June 2023
Decision date:	09 June 2023
Before:	Harrison J at [1] Fagan J at [206] Yehia J at [263]
Decision:	(1) To the extent required, grant leave to appeal. (2) Dismiss the appeal against conviction. (3) Allow the appeal against sentence. (4) Quash the sentence imposed upon Mr Dedeoglu on 7 April 2020 by her Honour Noman DCJ and in lieu thereof sentence Mr Dedeoglu to an aggregate term of imprisonment of 7 years commencing on 2 April 2019 and expiring on 1 April 2026 with a non-parole period of 5 years expiring on 1 April 2024. (5) Nominate the following indicative sentences: (a) Count 3, 6 months imprisonment. (b) Count 1, 12 months imprisonment. (c) Count 2, 6 years imprisonment.
Catchwords:	CRIME – appeals – appellant convicted by jury of two counts of sexual assault without consent and one count of sexual touching without consent CRIME – appeals – where ERISP allegedly wrongly admitted – where misleading DNA evidence allegedly wrongly admitted – where phone records allegedly “contradict” Crown case – where misleading screenshot evidence allegedly wrongly admitted – where alleged failure by DPP to provide appellant with “all trial materials” – where evidence of complainant’s friends allegedly wrongly admitted – where evidence of doctors allegedly “[not] adequate” – where non-contemporaneous statement of OIC allegedly wrongly admitted – where diary of OIC allegedly wrongly admitted – where failure to call witnesses alleged – where trial judge alleged to have helped Crown – where trial judge allegedly gave misleading directions as to consciousness and consent – where trial judge allegedly misdirected jury on nonresponsive answers – where trial judge allegedly misdirected jury on complainant’s evidence – where representation allegedly incompetent – where alleged bias – where verdict allegedly unsafe and unsatisfactory – where judge allegedly misdirected jury as to elements of the offence CRIME – appeals – appeal against sentence – aggregate sentence – whether sentence manifestly excessive EVIDENCE – criminal trials – application of the rule in Browne v Dunn to criminal trial by jury – whether timeliness and consistency of complaint and general improbability of accused’s account sufficient to warrant application of the proviso
Legislation Cited:	Crimes Act 1900 (NSW) ss 61I, s61L Criminal Appeal Act 1912 (NSW) s 6 Evidence Act 1995 (NSW) ss 33, 66, 89, 89A, 90, 104 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
Cases Cited:	Agresti v The Queen (2017) 13 ACTLR 1; [2017] ACTCA 20 Browne v Dunn (1893) 6 R 67 Davies and Cody v The King (1937) 57 CLR 170 at 180; [1937] HCA 27 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183 Dogan v R [2020] NSWCCA 151 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83 Hoferv R (2021) 395 ALR 1; [2021] HCA 36 JW v R [2022] NSWCCA 206 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Monteiro v R [2011] NSWCCA 113 MWJ v R (2005) 222 ALR 436; [2005] HCA 74 Nudd v The Queen [2006] HCA 9 R v Birks (1990) 19 NSWLR 677 R v Coswello [2009] VSCA 300 R v Manunta (1989) 54 SASR 17 R v MAP [2006] QCA 220 R v Miletic [1997] 1 VR 593 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Zhou v R [2021] NSWCCA 278
Category:	Principal judgment
Parties:	Onur Dedeoglu (Appellant) Rex (Respondent)
Representation:	Counsel: I Nash (Respondent) Solicitors: Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2018/263370
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 20 February 2020 Before: Noman SC DCJ File Number(s): 2018/263370; 2019/237101; 2021/302374