LONERGAN J: On 25 March 2021 the Court heard an application for bail filed by Onur Dedeoglu.
Mr Dedeoglu was convicted on 20 February 2020, after a trial by jury, of two counts of indecent assault in contravention of s 61L of the Crimes Act 1900 (NSW) and one count of sexual intercourse without consent in contravention of s 61I of the Crimes Act. The offending of which he was found guilty involved an attack by Mr Dedeoglu, an uber driver, upon a sleeping 17-year-old girl whom he had been retained to drive home.
On 7 April 2020 Judge Noman SC sentenced him to an aggregate term of imprisonment of 8 years 6 months with a non-parole period of 6 years to start from the day of his arrest, 2 April 2019.
On 7 April 2020, the day he was sentenced, Mr Dedeoglu filed a Notice of Intention to Appeal against conviction and sentence.
He sought and obtained an extension to that Notice on 6 November 2020 to 12 February 2021. On 8 February 2021 he was granted a further extension to 12 May 2021.
A document, (which appears to be a failed facsimile transmission report) tendered by Mr Dedeoglu on his application for release before this Court, on its face suggests that there may have been an attempt on his behalf on 5 May 2021 to transmit his handwritten letter dated 4 May 2021. His 4 May 2021 letter stated that because Legal Aid "will not represent him", he has to find new representation or "do the appeal himself" and "..that's why I need to extend my expire (sic) date for lodge appeal, which ends at 12 May 2021."
Also tendered was a letter from Legal Aid dated 20 May 2021 advising Mr Dedeoglu of the refusal of Legal Aid for his proposed appeal and that his Notice of Intention to Appeal would have expired and cannot be renewed, although the letter suggested that an appeal could still be filed.
Mr Dedeoglu, in his handwritten "Additional Bail Submission" dated 14 March 2022, (not in an affidavit), asserted that he was told on 27 April 2021, (by what means is not specified), that Legal Aid would not represent him, and that a Mr Dowe of that office had said that "…he is going to extent (sic) my notice of intention to appeal time, which was going to expire on 12 May 2021".
No evidence was provided of any correspondence from the Court to the effect that an extension had been sought by Legal Aid or granted past 12 May 2021, and the effect of the Legal Aid letter of 20 May was that if the Notice of Intention to Appeal had already expired, "you can still write to the Registrar" and "if you do nothing, the Notice of Intention to Appeal will simply lapse".
On 16 June 2021 Mr Dedeoglu filed a Notice of Application for Leave to Appeal. He re-filed that application for leave to appeal with further grounds and written submissions on 29 July 2021.
The release application was filed on 22 October 2021.
Mr Dedeoglu's application for leave to appeal and the appeal itself are listed for hearing on 22 July 2022.
[2]
Jurisdiction to hear and Determine a Release Application
Section 48 of the Bail Act 2013 (NSW), (the Act), limits the power of courts and authorised justices to hear and determine an application for bail. Section 48(2) provides:
48 Powers of courts and authorised justices to hear bail applications
…
(2) A bail application can be made to, and heard by, a court or authorised justice only if the court or authorised justice has power to hear the application.
…
Part 6 of the Act provides for powers to hear bail applications. Division 2 of Part 6 provides general powers to courts, from which this Court derives its general power to hear and determine applications for bail. Section 61 provides:
61 Power to hear bail application if proceedings are pending in court
A court may hear a bail application for an offence if proceedings for the offence are pending in the court.
It is obvious from the wording of the provision that the Court's powers are enlivened only where proceedings for the offence(s) are "pending in the Court".
That term is defined in s 59 of the Act:
59 Meaning of pending proceedings
In this Part, a reference to proceedings for an offence pending in a court is a reference to substantive proceedings pending in the court.
There is a note to s 59 which refers to the definitions in s 5 of the Act which includes proceedings on an appeal against conviction or sentence is included in the definition of "proceedings for an offence": s 5(1)(d).
Sections 5, 59 and 61 of the Act must be read together with s 10 of the Criminal Appeal Act 1912 (NSW) which provides relevantly:
10 Method and time for making appeal
(1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence -
(a) The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence.
(b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice.
(c) The appeal, or application for leave to appeal, is to be made in accordance with the rules of court, which may include -
(i) provision with respect to any statement of grounds of appeal, transcripts, exhibits or other documents or things to accompany the appeal or application, and
(ii) provision with respect to the timely institution and prosecution of the appeal or application, and
(iii) provision with respect to the period during which the notice under paragraph (a) has effect.
(2) For the purposes of any other Act or statutory instrument (whether enacted or made before or after the commencement of this subsection) -
(a) the period provided for making or lodging an appeal or notice of appeal to the court against a conviction or sentence is taken to be the period for giving the court notice of intention to appeal or notice of intention to apply for leave to appeal, or
(b) an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court).
Mr Dedeoglu's Notice of Application for Leave to Appeal was filed outside the time limits allowed by Rule 3B of the Criminal Appeal Rules (1952 SI 2) (NSW) which provides:
3B Time for filing notice of appeal or notice of application for leave to appeal
(1) A notice of appeal, or a notice of application for leave to appeal, in respect of a conviction or sentence may only be given:
(a) if a notice of intention to appeal or notice of intention to apply for leave to appeal has been given with respect to the conviction or sentence - within the period during which that notice of intention has effect, or
(b) if a notice of intention to appeal or a notice of intention to apply for leave to appeal has not been given with respect to the conviction or sentence - within the period of 3 months after the conviction or sentence, or
(c) within such extended time as may in any case be allowed by the Court.
(2) The period of 3 months referred to in subrule (1) (b) may be extended by the Court before or after the expiry of the period.
Mr Dedeoglu did not obtain any extension past 12 May 2021 and so he does not have proceedings "pending" before the court. The life of his future proceedings depends on, at some future time, the Court granting him leave to file his appeal out of time, if the Court is satisfied that it is appropriate to do so.
That analysis will include an evaluation of the merits of the appeal: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [33]:
"Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted..."
The Crown submitted, correctly, in my view, that this is a question for the Court constituted to hear Mr Dedeoglu's appeal as the majority comprising of Hoeben CJ at CL and Wilson J concluded in Mashayekhi v R [2021] NSWCA 55 at [18].
Whilst there is some material that may allow this Court to have some preliminary thoughts on the prospects of success of the appeal, it is not appropriate to remove the decision as to whether leave should be granted, from the Court that has that task as part of its hearing of the appeal in full on its merits in July, just four months away.
Accordingly the order that should be made is that the application is struck out for want of jurisdiction.
[3]
The Application for Bail
Even if the Court had power to hear and determine the bail application, I would have refused the application.
Section 22 of the Bail Act presents what has been described as a not insignificant hurdle: (Mashayekhi at [23]):
"22 General limitation on court's power to release
(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision -
(a) an offence for which an appeal is pending in the Court of Criminal Appeal against -
(i) a conviction on indictment, or
(ii) a sentence imposed on conviction on indictment."
The two stage aspect of s 22 was analysed in El-Hilli and Melville v R [2015] NSWCCA 146 at [13] by Hamill J, with the agreement of Simpson and Davies JJ, he stated:
"Given that the "special or exceptional" circumstances requirement in s 22 replaces the show cause requirement (where applicable) and the structure of the Bail Act, the same reasoning employed by the Court of Appeal in DPP v Tikomaimaleya supports the following propositions. First, where s 22 is engaged, there are two stages. The applicant must demonstrate that "special and exceptional circumstances exist justifying the [decision to grant bail]". Then the Court must apply the "unacceptable risk test" and do so by application of the exhaustive list of matters set out in s 18. The second proposition is that the same factors and evidence may operate at both stages. Where an applicant establishes special and exceptional circumstances, it is likely that the same material will also succeed in satisfying the unacceptable risk test. However, that cannot be stated as a universal proposition and the bail authority must apply each test in accordance with the terms of the Act. A case may arise where a particular matter qualifies as a "special or exceptional circumstance" and yet the application of the unacceptable risk test results in the refusal of bail. Such a case is likely to be rare because the "unacceptable risk" factors are imported in the "special or exceptional circumstances" requirement by s 22(3)."
In his written submissions, Mr Dedeoglu argued that there were exceptional circumstances. First, that he has 21 grounds of appeal, four of which he argued were particularly strong, second, that he would have served "more than half his sentence" by the time of the appeal (this is a reference to the non-parole period of his sentence), third, that he needs to be on bail to prepare his appeal, fourth, that COVID-19 restrictions make custody more onerous, fifth, that he is not able to obtain the relevant material he needs for his appeal and sixth, he is not receiving adequate medical attention and necessary medication in custody and he has suffered damage to his mental health from delays to his appeal hearing.
As observed in Mashayekhi regarding what the Court said in Obeid v R (No 2) [2016] NSWCCA 321 at [17]:
"It is inappropriate to give any detailed account of an applicant's prospects of success on appeal when determining an application for bail because the argument on such an application can never be as fully developed as it might be, and the Court is confined to reaching only a broad overall view of an applicant's prospects of success."
That consideration applies here. The fact that Mr Dedeoglu will have served half his non-parole period is not a special or exceptional circumstance. Nor is the (implied) assertion that he is having difficulties preparing his appeal. As noted by the Crown, the Court (and, presumably the Crown also), has been deluged by Mr Dedeoglu with hundreds of pages of submissions and material directed to the appeal.
I am not persuaded that there is any special or exceptional circumstance established that would justify a grant of bail, and so there is no need to proceed to the second stage contemplated by s 22 of the Act.
The application struck out for want of jurisdiction.
IERACE J: I agree with Lonergan J.
[4]
Amendments
11 April 2022 - Paragraph 32, line 1: removed the words "We are" and inserted the words "I am".
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Decision last updated: 11 April 2022