Dedeoglu v R [2022] NSWCCA 231 | Case summary

Section 12 and the Appeal Process

As I will explain, most of Mr Dedeoglu's submissions misconceive the nature of the appeal process and in turn the limited scope for the exercise of the power to issue notices under s 12. Section 12 relevantly provides: "(1) The court may, if it thinks it necessary or expedient in the interests of justice - (a) order the production of any document, exhibit, or other thing connected with the proceedings … (c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not a compellable witness …"
In Xie v R [2021] NSWCCA 1 ("Xie") at [437], the Court observed in relation to s 12(1)(c): "… the power conferred by s 12(1) of the Criminal Appeal Act to, inter alia, receive further evidence 'if it thinks it necessary or expedient in the interests of justice' to do so is not a free standing power to receive evidence, but one which must be exercised having regard to the particular ground of appeal (which in turn will reflect one of the three limbs of s 6(1)). The 'interests of justice' in this context are a reference to properly determining the relevant ground of appeal according to law."
These observations apply with equal force to orders under s 12(1)(a). They must be read together with the following statement in Xie at [6]: "… a criminal trial is an accusatory and adversarial process in which the prosecution and the defence, not the Court, are responsible for determining the issues in the trial and the evidence to be adduced … Further, the forum for the identification and resolution of those issues is the trial before the jury and not the appellate court. Leaving aside the form of review undertaken by this Court when it is contended that a verdict of guilty is 'unreasonable, or cannot be supported, having regard to the evidence' (Criminal Appeal Act 1912, s 6(1)), which was not the case here, in addressing whether a trial was unfair this Court does not conduct its own form of retrial, does not reformulate the issues of fact identified by the parties at the trial and generally does not speculate about how the conduct of the trial might have been conducted differently or better. The principles governing an appeal from a conviction to this Court admit of exceptions to this such that, in some circumstances, issues and evidence that were not raised at trial can be raised and adduced on appeal respectively. However, those exceptions are limited."
Mr Dedeoglu's application for orders for production under s 12 overlooks these principles. His submissions assume that the appeal process is a means to conduct a free-standing inquiry into the fairness or otherwise of his trial or the adequacy of his legal representation, which it is not. The above extract from Xie speaks of exceptions to an appeal being confined to a consideration of the conduct of the trial based on the issues identified, and the evidence adduced, at the trial. One such exception is an appeal ground that seeks to rely on new or fresh evidence. Mr Dedeoglu does not raise that ground.
Another such exception is a complaint that there was some inadequacy in the accused's legal representation which occasioned a miscarriage of justice. Mr Dedeoglu's Notice of Appeal raises such a ground, but even with that ground the type of evidence that can be adduced is relatively narrow in scope (see for example Xie at [415] to [422]). Before an order under s 12 is made for the production of documents (or for a witness to attend) to facilitate that ground, the appellant must identify with precision the failing of the legal representatives, how it occasioned a miscarriage of justice, and how the documents sought relate to those contentions. It follows that generally the documents sought by an order under s 12 in relation to such a ground will need to be drafted narrowly before the order is issued. Otherwise, it will not have been demonstrated that it is in the "interests of justice" for the order to be made.

The Orders Sought

Mr Dedeoglu's 78-page submission identified various categories of documents or material of which he seeks production. Each will be addressed in turn.
Mobile phone carrier records: [1] In December 2021 an order under s 12 was issued to Mr Dedeoglu's former mobile phone carrier for the complainant's telephone records. Material was produced and Mr Dedeoglu advised the Registrar that he did not intend to file any material from the documents produced. I am not persuaded that any further order directed to the carrier is warranted in the interests of justice.
Former solicitors' records: On 19 January 2022, an order under s 12 was made directed to Mr Dedeoglu's former solicitors seeking production of various categories of documents. His 78-page submission seeks documents from his former solicitors being all communications between: himself and his solicitors; his solicitors and counsel; his solicitors, the Office of the Director of Public Prosecutions ("ODPP"), the Legal Aid Commission, the interpreter, and his wife; and all other communications made to and from his solicitors. [2] Most of that material was sought by the order made in January 2022. In any event, I have read Mr Dedeoglu's submissions including his complaints about his legal representatives and the adequacy of the interpretation of his ERISP. The wide categories of material sought by Mr Dedeoglu are not calibrated to those complaints. I uphold the Registrar's decision to refuse to issue a further s 12 order to Mr Dedeoglu's former legal representatives.
Sexual Assault Information Kit ("SAIK"): Mr Dedeoglu seeks an order under s 12 for the production of the entire SAIK relating to the complainant. [3] He contends that, prior to the trial, he was only provided with 18 of the 58 pages of the document. Ground 5A of his appeal concerns the failure to produce the balance of the SAIK report (and ground 7 concerns the evidence given by a doctor about the complainant). The only specific complaint made about the omitted part of the SAIK report is that it could have included a reference to how intoxicated the complainant was. [4] This contention is not tied to any suggestion as to how that answer would advance the particular complaints made on appeal. At this point, I am not satisfied that the production of the material by an order under s 12 is warranted. However, this may need to be considered upon review of the Respondent's submissions.
Further statements: Mr Dedeoglu seeks that the Court somehow order the production of further statements from various witnesses being: an expert interpreter; [5] the interpreter who interpreted his ERISP; [6] "police officer friends" of a friend of the complainant; [7] two persons who attended a party, which was attended by the complainant prior to her being collected by Mr Dedeoglu; [8] an unnamed expert from a mobile phone carrier; and another expert from "Apple". [9] An order under s 12 can extend to requiring the attendance of a witness to give evidence before the Court but it cannot require the production of any further statement. On the material before me I am not satisfied that any order for the attendance of any of these witnesses to give evidence is warranted. So far as expert witnesses are concerned, it is a matter for Mr Dedeoglu to retain experts and to provide reports from them. In any event, in a case such as this where the grounds of appeal are so large and unfocussed, orders for witnesses to attend and give evidence should only be made by the bench considering the matter. I uphold the decision of the Registrar.
Request for "information": Parts of Mr Dedeoglu's submissions identify various types of information that Mr Dedeoglu seeks but which do not identify the entity from which production is sought. Instead, Mr Dedeoglu simply seeks "information" about the following topics: (i) the interpreter's qualifications; [10] (ii) the date of birth of the person whose birthday party the complainant attended prior to travelling in the vehicle driven by Mr Dedeoglu; [11] (iii) "information related" to a sexual assault counsellor who is said to have assisted the complainant at the hospital; and (iv) an "explanation for the last DNA two trace swabs". [12] Section 12 does not confer on the Court power to require the production of information generally. In any event, having read Mr Dedeoglu's 78-page submissions and the submissions in support of the appeal I am not satisfied that it is in the interests of justice that this material be produced.
The Officer-in-Charge's Diary: Mr Dedeoglu's submissions seek the production of the original Officer-in-Charge's diary. [13] He contends that parts of that diary that were tendered at the trial were unreadable. He also points to the power of the Registrar to appoint a time and place to inspect any exhibit used at the trial (i.e., r 50 of the Criminal Appeal Rules). This will not assist as I understand that only copies were tendered at the trial. If the bench hearing the matter considers that the diary is unreadable and that there is some reason for inspecting the original then they can make an order to that effect. At this point I am not satisfied that it is in the "interests of justice" to require the production of the original diary. I uphold the Registrar's decision.
The complainant's record of interview: Mr Dedeoglu's submissions seek the production of the complainant's "record of interview". [14] The ODPP have advised that the complainant did not participate in such an interview but instead only provided a statement. It is unusual for a complainant to participate in an interview. It not having been shown that there is any such interview there is no basis to make an order under s 12 requiring its production. I uphold the Registrar's decision.
Material from the police brief: Mr Dedeoglu seeks various documents that on their face should have been included in the police brief, namely: various photographs included in a police officer's statement concerning the complainant's clothes; [15] Closed Circuit Television footage; [16] various police statements; [17] forensic video material and the transcript; [18] and screenshots of the complainant's texts. [19] I am not satisfied that this material was not served with the police brief. Having read Mr Dedeoglu's grounds of appeal and reviewed the submissions in support I am not persuaded that the interests of justice warrant this material being produced.
Lastly, Mr Dedeoglu also seeks copies of the trial judge's judgments, [20] jury notes, [21] materials given to the jury, [22] and an exhibit. [23] This material will be provided in the appeal books.

Dedeoglu v R

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)