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
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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dedeoglu v The King [2023] NSWCCA 126
Case
[2023] NSWCCA 126
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, the appellant, Dedeoglu, appealed against his conviction and sentence for two counts of sexual assault without consent and one count of sexual touching without consent. The trial had taken place in the Supreme Court of Victoria, where Dedeoglu was found guilty by a jury. The appeal focused on various alleged errors in the trial process, including the admission of certain evidence, the handling of DNA evidence, and the conduct of the trial judge. The appellant also contested the severity of his sentence.
The central legal issues involved the admissibility of certain pieces of evidence and the conduct of the trial. Dedeoglu's legal team argued that the trial judge had erred in admitting certain evidence, including DNA evidence and phone records, which they claimed was misleading. They further contended that the judge had misdirected the jury on several points, including the understanding of consent and the interpretation of nonresponsive answers. The appellant's legal representatives also raised concerns about the alleged failure of the Director of Public Prosecutions to provide all trial materials and the handling of the complainant's statements and medical evidence.
The High Court examined the arguments and found that while there were indeed errors in the trial process, they did not cumulatively affect the safety and satisfaction of the verdict. The Court noted that the evidence against Dedeoglu was substantial and compelling, and the jury's verdict was well-supported by the presented evidence. The Court also considered the sentence, determining that while it was severe, it was not manifestly excessive given the nature and circumstances of the offences. Consequently, the appeal against conviction and sentence was dismissed.
The Court ordered that the appeal against conviction and sentence be dismissed, and the original conviction and sentence be upheld.