Legal Research
Cases
Dogan v R

Dogan v R

Case [2020] NSWCCA 151 3 July 2020

Appeal

Jurisdiction

Abuse of Process

Constitutional Validity

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dogan v R [2020] NSWCCA 151
Hearing dates: 8 May 2020
Date of orders: 3 July 2020
Decision date: 03 July 2020
Before: R A Hulme J at [1]
Fagan J at [8]
Cavanagh J at [22]
Decision:
The application for an extension of time in which to file the notice of application for leave to appeal is refused.

Catchwords:
CRIME — appeals — appeal against conviction — extension of time in which to appeal — point not raised below — where vulnerable complainant gave evidence at trial in manner provided by Ch 6 Pt 6 of the Criminal Procedure Act 1986 (NSW) — where all parties consented to course taken at trial — whether trial judge first required to form independent satisfaction of condition in s 306P(2) — whether miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), ss 86, 94, 97, 99, 112, 192E
Crimes Amendment (Cognitive Impairment – Sexual Offences) Act 2008 (NSW)
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 10(1)(b)
Criminal Appeal Rules, rr 3A, 4, 23C
Criminal Procedure Act 1986 (NSW), Ch 6 Pt 6, ss 3, 294B, 306O, 306P, 306S, 306V, 306ZJ
Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW)
Evidence Act 1995 (NSW), ss 59, 112
Evidence (Children) Act 1997 (NSW)
Succession Act2006 (NSW), s 59

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
ARS v The Queen [2011] NSWCCA 266
CF v R [2017] NSWCCA 318
Hilton v Legal Profession Admission Board [2017] NSWCA 232
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Panchal v R; R v Panchal [2014] NSWCCA 275
Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3
Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4

Texts Cited:
Crimes Amendment (Cognitive Impairment – Sexual Offences) Bill 2008
New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008

Category: Principal judgment
Parties: Hakan Dogan (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
M Millward (Respondent)
Solicitors:
Kings Law Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/52802
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 February 2017

Before:

Noman SC DCJ

File Number(s):

2014/52802

Judgment

R A HULME J: The sole issue in this matter is whether a cognitively impaired complainant could give evidence in the form of previous representations made in a recorded interview with a police officer. Giving evidence by that fashion is permitted if the provisions of Ch 6 Pt 6 of the Criminal Procedure Act 1986 (NSW) applied. Those provisions would apply if, pursuant to s 306P(2), the court was "satisfied that the facts of the case may be…

Grounds of appeal

[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.

Continue reading Dogan v R

Details

AGLC: Dogan v The Queen [2020] NSWCCA 151
Case: [2020] NSWCCA 151
Decision Date: 03 July 2020

CaseChat Overview and Summary

The case of Dogan v R involves an appeal against a conviction for a crime. The appeal was for an extension of time in which to lodge the appeal. The point raised was not previously brought up during the trial. The case was heard by the court of appeal in New South Wales. The complainant, who was considered vulnerable, provided their evidence during the trial in a manner outlined in Chapter 6 Part 6 of the Criminal Procedure Act 1986 (NSW). Both parties consented to the course taken during the trial. The court was required to decide whether the trial judge was first required to form an independent satisfaction of the condition set out in section 306P(2) and whether there was a miscarriage of justice.

The court considered whether the trial judge was required to form an independent satisfaction of the condition set out in section 306P(2) of the Criminal Procedure Act 1986 (NSW). The court found that there was no requirement for the trial judge to form an independent satisfaction of the condition. The court also considered whether there was a miscarriage of justice. The court found that there was no miscarriage of justice in this case as all parties had consented to the course taken during the trial. The court found that the trial judge had acted within their discretion in allowing the vulnerable complainant to give evidence in the manner provided by the Act.

The court held that there was no miscarriage of justice and the appeal was dismissed. The court found that the trial judge had not erred in their decision-making and that the vulnerable complainant had been appropriately protected during the trial. The court found that the appellant had not demonstrated any prejudice resulting from the trial judge's decision. The court found that the trial judge had acted within their discretion in allowing the vulnerable complainant to give evidence in the manner provided by the Act. The court found that the vulnerable complainant had been appropriately protected during the trial and that there was no miscarriage of justice. The appeal was dismissed, and the conviction stood.

Orders