Dedeoglu v R [2023] NSWCCA 126 | Case summary

Dedeoglu v R [2023] NSWCCA 126 | Case summary | Zoe

The applicant contested the element of non-consent in each charge. He gave evidence that the complainant initiated the sexual activity between them. He said that he double parked outside the complainant's home at about 1:28 am and told her, repeatedly, "We arrive your home. You can get out". She did not respond and he assumed she was asleep. She was "still leaning back in a relaxed position". Although the applicant's trial counsel submitted to the jury that the complainant must not have been very heavily asleep during the latter part of the journey, the applicant accepted in his evidence that she was asleep when the car arrived outside her house. The applicant said that after two minutes he moved his car to a kerb-side parking space and he gave this evidence as to what followed (emphasis added): A. INTERPRETER: I repeated again, "We arrived. You can go home." But at the time she had crossed her legs and she was leaning to the window of the rear passenger door. The tip of her right foot, because she had crossed her legs, nearly touched under my armrest of the position where I was sitting. And then just jokingly, in joking manner, I just shook her boot and I told her she can go. Q. What happened then, sir? A. INTERPRETER: When as I said I was doing, shaking her boot as if I was joking, after that I noticed she was smiling. I said, "Tilda [scil Tina, the name in which the booking was made, which the applicant believed was the complainant's name] are you really asleep?" She smiled again. I said again, "We came to your home. You can leave, you can go." As if she was half joking, she said, "I don't want to go home." Q. Did you say anything in reply to that comment? A. INTERPRETER: I found it was funny when she said she doesn't want to go home. We first stopped in front of her house, and then I asked these questions of whether she was thinking of changing the destination. When I asked her which destination she wanted to go, she answered to me, "Your house." Q. Now, after she told you that she wanted to go to your home, did you say anything in response to that? A. INTERPRETER: I didn't think it was something serious she was mentioning, and I have smiling said to her, "We can't go to my home. We can't go to my house." At that instant, I had a question mark in my mind, what she was really meaning. Q. What happened then, sir? A. INTERPRETER: Then she replied saying that, "We can go elsewhere." At the time I was trying to fully understand what she was trying to tell me. Because my English wasn't very good at the time […]. […] A. INTERPRETER: I said to her, "At this time of the day, just about everywhere is closed." She responded to me saying that, "We can find some place," or places. Q. What happened then? A. INTERPRETER: I understood she didn't want to finish the night. Then we start talking normally. I ask her question, "How was your night?" She said, "I had a very good night but I had small problems with the girls." We stayed in that position approximately for ten minutes. Apart from what I just said in regards to what we were talking about, I don't recall anything more than that. I mean, I don't recall the all details of what we said to one another. When she said, "We can find places," then my response was, "If you want, we can go to the beach." Q. What happened then? A. INTERPRETER: She was using the word "crazy". She responded saying that, "It's going to be crazy." She was trying to motivate me, saying those things, "It's going to be a crazy thing." At the time, I thought she wanted to have something like that. When she said it was going to be a crazy thing when we go to the beach, I just want to make sure that it was going to be something all right, and then I said to her, "Can we do something in the car?" Q. Did the complainant respond to your question, "Can we do something in the car?"? A. INTERPRETER: She said the same thing, "It's going to be a crazy thing." Q. Was anything else said about doing something in the car? A. INTERPRETER: I continuously ask her, "In reality, do you really want to do this thing?" She was responding, saying, "Sure." Then I said to her, "We're going to beach." She said, "All right." She said, "Let's go." As I said before, what we had spent time in that position was about ten minutes, and after that we move away from there, because the beach is very near to that position, about 250 metres away. Q. Was anything else said while inside the car? A. INTERPRETER: As I said, we talked about eight or ten minutes in that position. But at this moment, I can't really understand in full what was said at the time. Q. Now, while you were inside the car with the complainant at this location - that is outside the grey building as we see in photograph 4 of exhibit 1 - what observations did you make of her? A. INTERPRETER: When we first parked in front her house, I had noticed then she was asleep and she was looking tired. But when we parked at the second position, after I shook her boot and she woke up, she was fully aware of herself. We were sort of joking to one another and we were speaking to one another. This is after the first or two minutes. She was fully awake and conscious. She was talking, very aware of things what she was saying. She was responding very clearly.
It was common ground that it would have taken one to two minutes for the applicant to drive the short distance to the parking bay on Ramsgate Avenue. He described what took place there as follows: A. INTERPRETER: When we arrived there I turned back and looked. She was in a sort of leaning back position. At this time I get confused. A while ago she was motivating me to do this. When I see her in that position at that point I thought to myself this is something not right. Because of that reason my intention to have that something happening like that has reduced. The only thing I did I just called her. Then I called her and she immediately responded. I ask her whether she is well. She said, "Yes. I am well". After that she invited me to the back seat. After exchanging a few words between ourselves and then I went to the back seat.
The applicant said that he got out of the driver seat, entered the rear seat from the passenger side, sat next to the complainant and put his hand behind her head. She slid towards him, he kissed her on the lips and neck and she kissed him back, pulling his head toward her and then directing him down to kiss her breasts. He said she was breathing heavily and engaging with him, which encouraged him to try to undo her jeans at the waist. The applicant said that the complainant assisted by lifting her hips, undoing the waist button and zipper and pulling her pants down. He put his hand inside her underwear and his fingers over her vagina. The applicant said that the complainant responded physically with her legs and that she placed her hand over his to push his hand down onto her vagina, at which point he penetrated her with his finger. He said that after he had penetrated her more forcefully the complainant changed to pushing his hand away. He asked, "Can we continue a little bit longer?" and she said, "Yes, okay" but soon after that she broke off the contact, appeared upset and said "I'm going home". She then left the vehicle.
In cross-examination the applicant's trial counsel put to the complainant, step by step, the whole of the above account that the applicant subsequently provided in his own evidence, from arrival at Brighton Boulevard at 1:28 am until the complainant left the vehicle on Ramsgate Avenue at about 1:50 am. The complainant maintained that she was unaware of anything that had occurred in those 22 minutes because she was asleep until woken by the forceful and uncomfortable penetration of the applicant's finger in her vagina. She then freed herself from him and got out of the car as quickly as she could.
The single contested issue was whether the Crown had proved absence of consent to the criminal standard. That turned upon whether the jury accepted as truthful and accurate, beyond reasonable doubt, the complainant's evidence that she was asleep during the relevant interval of time and not in a conscious state to be capable of consenting. As the defence was conducted, in the circumstances of this trial, the only path by which the jury could have entertained a reasonable possibility that the complainant may have consented would have been if they thought it reasonably possible that she was awake over the 22 minutes and that the applicant's account of her words and acts of consent might be truthful and accurate.
Solely on the evidence of the events as recounted so far, before coming to the evidence of immediate complaint, the jury would likely have regarded it as no more than a remote and fanciful possibility that the applicant's evidence was truthful and accurate. The complainant was tired to the point of falling asleep in the vehicle and she had taken an Uber ride home to meet the curfew restriction imposed by mother, whom she had notified of her departure from the city and whom she knew would be expecting her. It must have appeared to the jury highly unlikely that, upon waking up outside her address, the first words from the complainant would be, "I don't want to go home". Would this 17 year old girl, who had scrupulously complied with parental instructions for her safety throughout the evening until this time, abruptly abandon her curfew and recklessly propose to her previously unknown Uber driver that they go to his home? It would have seemed to the jury additionally improbable that when the driver rejected that idea and said also that venues would be closed, she would be so keen to pursue sexual contact with him as to respond positively to his suggestions that they "go to the beach" and "do something in the car" - saying, "It's going to be crazy". The improbability continued in the applicant's account of the complainant then inviting him onto the back seat and throwing herself into passionate sexual activity with this stranger, sight unseen. All of these were elements of the applicant's exculpatory evidence and the improbabilities accumulated and compounded each other.

[2]

Complaint evidence

The complaint evidence has been summarised by Harrison J. Some aspects are particularly important to the appeal ground that I am now considering. The first complaint was a Snapchat message sent by the complainant to her friend SO at 1:50 am, within the minute after the complainant got out of the applicant's car on Ramsgate Avenue. The message comprised a picture of the complainant, looking upset, with the message "i feel like I was justctakkeb advantage of" (as typed). The image and message were saved by SO. The immediacy of this complaint could not be challenged in view of the automated electronic time stamp. The complainant followed this first message with video messages on Snapchat, in which she attempted to explain what had occurred but was flustered and upset and not able to articulate clearly. The video messages were not recorded or retained but secondary evidence of their content was given by SO. SO said that in one message the complainant said, amongst other things, "he's kissing me and my pants were undone".
At 1:52 am SO phoned the complainant in response to her messages. SO was with three other school friends when the call took place. The complainant was very upset and SO could not understand what she was trying to convey, beyond the fact that someone had "grabbed her" and that she heard a Russian voice. One of the girls who was with SO and listened in to the call said that the complainant was "hysterical, crying and could hardly get words out … She was in a bad state". The complainant was still on that call, crying and trying to explain what had occurred, when she arrived in front of her home. The walk up from Ramsgate Avenue was only about four minutes.
The complainant gave this evidence about her arrival home, which was not challenged in cross-examination: [I sent SO] a Snapchat saying something to the likes of "I've been taken advantage of." And just a photo and - of some text to her. And then I kind of - I guess - walked as quickly as I could home. I was crying at this point and then […] maybe a minute later, [SO] had seen the Snapchat and she called me straight away. And she was on the phone to me, kind of just […] 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 - […] she's telling me to go home and tell my mum because she was waiting up for me. Q. What happened after that phone call with [SO]? A. So I got home to my - kind of - driveway and I was still on the phone to her, so I was finishing up the phone call and I was very upset and I was standing in the driveway, just crying - kind of pulling myself back together because I was very scared to tell my mum because I wasn't really ready to. I didn't - I was just scared to. So I - I was just in the driveway ..(not transcribable)..to home. And make myself - I - wipe my tears away and then I finally just walked inside and my mum had opened the door and she kind of noticed that I - my face was red from crying. And so she said "What's wrong?" And I kind of just brushed it off and I wasn't - didn't have the courage to tell her what had just happened. So I just said something like: "Oh, it's boy issues. Don't worry about it, mum." [She kind of just brushed it off and we - I went off to bed and I went to sleep.
The complainant's mother gave the following account of the complainant's arrival home: Q. Between sending those texts at 1.12, 1.18 and the phone call at 1.49, have you been awake? A. A hundred per cent awake. […] I was so awake. I tried to take my mind off it […] And our bedroom is right at the front of the house, and it's very quiet and I was listening out for her to come home. Q. At around 1.30 am, you remember hearing a car pull up outside. A. I do. I also remember seeing the lights reflected on the ceiling of our bedroom through the venetians, and I waited for the sound of the door to close or the gate to open. We've got a very squeaky gate, and it didn't, so I thought, "It's not her." Q. At about 1.50 am, did you hear [J]'s voice? A. I heard [complainant's] voice. I got out of bed. I walked over to the blinds. I peaked through the blinds. I could see her walking towards the gate and she was crying. She was very distressed. I remember it as clear as day. I will never forget it till the day I die. She's got glasses. She was rubbing her left eye, and she was crying. She was very distressed, so, of course, my heart sank. I immediately went to the front door. […] […] A. […] The front gate is about ten metres from the front door. By the time I got to the gate, [J] had collected herself and I said, "[J], [J], where have you been?" […] I said, "Why didn't you answer my text?" She said, "I was on the phone to [SO]." I said, "What is it? Why are you crying? Why - why are you upset? I saw you at the gate." She said, "It's nothing. It's nothing." I said, "Why were you - upset?" She said, "It's nothing, it's a boy." And my emotions went from compassion and concern to anger because I could smell alcohol on her and I told her so. And so I said, "That's it" for 2am curfews. And then I remember very clearly, she wasn't defensive, she just walked upstairs. […]
The complainant slept the night but woke early and sent text messages to SO at about 7:00 am, including the following: Omg [Oh my God] i just looked, the Uber ride stopped at 1:31 but i got home at 1:55 that means I was in the car with him for like 15-20 mins holy fuck I want to cry It was open to the jury to rely upon this as a complaint, very close in time to relevant events, specifically recording that the complainant had not been awake and was not conscious of what had taken place during the 15-20 minutes after 1:31 am.
Other text messages to SO at around the same time were as follows: I am never getting in an uber alone that drunk again this is not okay like he fully took advantage of me it's so hard though bc [because] i feel like it was my fault bc i was drunk and shouldn't have been so sleepy but i couldn't help myself like i woke up and it was happening The jury could rely upon these messages as not only proximate complaint of having been asleep, rather than awake and consenting, but also as explaining why the complainant did not tell her mother what had occurred immediately on her arrival home. Attributing her sleepiness to alcohol, she felt that she had failed to protect herself by allowing herself to become affected to an extent that her mother would disapprove.
The complainant gave evidence that at approximately 9:00 am she told her sister, who was two years older, about having been sexually assaulted by the Uber driver while she was asleep. The sister confirmed this. She described the complainant crying, trembling and visibly upset as her description of events emerged, a few words at a time, through her sobbing. The sister was not cross-examined. The complainant discussed the matter further with SO and other girlfriends during the day, including in numerous text messages between herself and SO. RD, a school friend, received a FaceTime call from the complainant shortly after 11:00 am on which the complainant said that "on her way home in the Uber she woke and the Uber driver was fingering and kissing her". RD was cross-examined about the complainant's level of intoxication during the previous evening at the Star Bar but not about the complainant's FaceTime call the next morning.
The complainant eventually related the events to her mother at about 4:00 pm. The mother said this: She told me that she woke up in the Uber and the Uber driver was kissing her and had his hands down her pants. The mother said that this account emerged in broken fashion from the complainant, through tears and distress. Her answers included the following: A. I said, "[J], it's okay. Whatever you need to tell me, it's okay." And eventually, she spat out the words, "Uber driver". A. I was calm. I just said, "Oh, [J]". She's crying, she's distressed, she's - how do you tell your mother that? […] A. Yeah. She said - she - she said, "I can't believe this has happened to me. I don't want this to be a reality. Why me? I just want this to go away." Q. All right. When you were having this conversation with [the complainant] in your bedroom, what was her demeanour like? […] A. She was in tears. Very upset, couldn't spit it out - she couldn't spit it out. She didn't know how to say it. […]
Taken as a whole, this was an immensely powerful body of recent complaint evidence. The complainant's allegations of sexual acts without consent while she was asleep commenced immediately after the acts to which the applicant admitted. The substance of the complaints was consistent, both as between the several statements made by the complainant and with her evidence at trial. To a significant extent there were contemporaneous electronic records of text messages that conveyed complaints and/or that referred to other oral communications to similar effect. In addition to the complainant herself, the four witnesses to whom the complaints were made were articulate and apparently credible. SO and the complainant's mother and sister described her distress in vivid terms. Each of them was very close to the complainant and could be expected to have known if she was dissembling. The sequence in which the complaints developed was precisely what would be expected. First, the complainant sent urgent distressed messages to her closest school friend. Then she confided in her older sister. Last - and with encouragement from the others - the complainant reported the events to the authority in her household with respect to such a matter, her mother.

[3]

Scope for challenge to the complaint evidence

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.

[4]

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.

[5]

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.

[6]

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.

[7]

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.

[8]

Orders

I propose the following orders: 1. Grant leave so far as necessary to appeal against both conviction and sentence. 2. 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].

Parties

Applicant/Plaintiff:

Dedeoglu

Respondent/Defendant:

Legislation Cited (4)

Crimes Act 1900(NSW)ss 61I, s61L, ss 61I

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 (62)

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)

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: 1. 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) 1. 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] 2. 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 1. 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): 1. 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] 2. 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] 3. 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): 1. 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): 1. 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): 1. The sentence was not manifestly excessive: [254]-[261]

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."

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."

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 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."
Mr Dedeoglu contends under this ground that Dr Woods did not give "adequate" evidence. The ground so described may not clearly convey the nature of Mr Dedeoglu's complaint. It seems to me that Mr Dedeoglu is really complaining about the effect of the evidence that was actually given, not about its so-called inadequacy.
It appears from the medical, and other, evidence in the trial that the issue of the complainant's consent or otherwise was explored in the context of (a) the extent to which she had sustained vaginal or labial injuries as the result of the digital penetration admitted by Mr Dedeoglu and (b) whether the state of her genital lubrication or lack of it spoke to the question of whether the complainant was conscious or unconscious at the time. Dr Woods' evidence was that there was no necessary causal relationship between the existence of injuries and the question of whether the sexual penetration was or was not consensual. Mr Dedeoglu argued that the absence of injury was also consistent with the complainant being lubricated at the time, suggesting (according to him) that she had consented. Mr Dedeoglu appears also to criticise the evidence of Dr Woods to the extent that she offered no opinion about whether the complainant was likely to have been conscious or unconscious at the relevant time.
The evidence that was given by Dr Woods, extracted in part in Mr Dedeoglu's written submissions, in circumstances where she was aware of the detail of the complainant's description of digital penetration of her vagina, including that she was unconscious when it commenced, was as follows: "I've seen patients who have reported forceful digital penetration and there has been no injury found. But I've also seen cases - we see cases in our service where there's been, you know, no - no report of forceful assault and yet there can still be findings. It's very variable."

Ground 12: Her Honour inadequately directed the jury about "asleep" and "unconsciousness" issue. Her Honour hasn't explained that those are only factors if happened during the sexual acts.

The relevant portion of her Honour's summing up was as follows: "Element 3 is that the assault was without the consent of the complainant. Consent involves the conscious and voluntary permission by the complainant to the accused to touch her body in the manner that he did. If the complainant was unconscious or asleep, she could not give conscious and voluntary permission. That consent can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words; it may also be communicated in other ways, such as the offering of resistance. However, a person who does not offer actual physical resistance is not, by reason only of that fact, to be regarded as consenting. Element 4 is that the accused knew that the complainant was not consenting. In deciding this issue, you are concerned with the actual state of mind of the accused at the time of the act amounting to the assault. It is not a question of what you would have realised, or thought, or believed. It is not a question of what a reasonable person would have thought or believed. The Crown asks you to infer or conclude that the accused knew that the complainant was not consenting. … Element 2, without consent. A person consents to sexual intercourse if she freely and voluntarily agrees to have sexual intercourse with another person. The law provides that a person does not consent to sexual intercourse if the person does not have the opportunity to consent to that sexual intercourse because the person is unconscious or asleep. So you would probably pick up that there is a difference in expression and the way I have phrased it in relation to the indecent assaults. Consent can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words. It may also be communicated in other ways, such as the offering of resistance, although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Once again, you will pick up there is different phrasing in that portion to the other part for indecent assaults. Element 3: the accused's knowledge. Once again there are differences in this. So please stick to the ones you are considering. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent. It is the accused's knowledge of the lack of consent with which you are concerned. You are concerned with the actual state of mind of the accused at the time of the act. It is not a question of what you would have realised, or thought, or believed and it is not a question of what a reasonable person would have thought, or believed. The Crown asks you to infer or conclude that the accused knew that the complainant was not consenting. In considering the accused's knowledge, you must have regard to all of the circumstances, including any steps taken by the accused to ascertain whether the complainant consented to sexual intercourse. An accused knows the complainant did not consent to the sexual intercourse if either, firstly, the accused actually knew that the complainant did not consent to the sexual intercourse; or secondly, the accused simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity, if he had turned his mind to it; or thirdly, the accused realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not; or fourthly, even if the accused believed at the time that the complainant consented the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse. … It is not challenged that the accused committed each of the physical acts relied upon to support each count. In summary, the accused accepted he committed each act. He said the complainant and he discussed doing things, and that she was awake and participating in the sexual activity. The complainant said she was asleep and woke to the acts being committed. She said there was no previous conversation with the accused. She said she was asleep and could not and did not consent. … The complainant said she was not awake. She said it was possible, but she did not remember drifting in and out of consciousness outside her house. She said to her knowledge she was asleep. She answered many questions in cross-examination with, 'I don't remember'. In giving those answers, she clarified that she did not recall as she was indicating that she was not awake. She said she woke up at the beach to the accused digitally penetrating her, and kissing her mouth. She said she pushed him away. She exited the car, possibly with the accused assisting to open the door. She said the accused said, 'It's okay. It's okay'. … The accused accepted in his interview, and in his evidence, that he committed the physical acts supporting each of the three counts, but he indicated that each act was committed with the complainant's consent. In relation to the offences alleged against the accused, the Crown relies essentially upon the evidence of the complainant to prove the elements of her lack of consent, and the accused's knowledge of that lack of consent." [Emphasis added]

Ground 18: Verdict is unsafe and unsatisfactory. Verdict cannot (be) supported by evidence.

In accordance with well-established authority, the question raised by this ground of appeal is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of Mr Dedeoglu's guilt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] - [66]: "[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact."[38] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect[39], the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial[40]. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'."
See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 621‑622 [49]‑[51], 623 [56].
It is important to bear in mind at all times that the jury is the body entrusted with the primary responsibility of determining guilt and that the jury has had the benefit of having seen and heard all of the witnesses: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493. That advantage extends to the combined advantage of 12 jurors having seen and heard the witnesses at the trial: Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83 at [480].
Mr Dedeoglu's submissions do not appear to appreciate the significance of this approach. Instead, his submissions largely regurgitate a series of complaints that have been considered separately in other discrete grounds of appeal. The Crown case at trial proceeded upon the fundamental proposition that the jury would accept the complainant's account of what occurred in the car, corroborated by other evidence from witnesses to whom she either complained about, or reported, those events. It is obvious that the jury accepted her account and that they were not satisfied that Mr Dedeoglu's account should be accepted or they were at the very least not satisfied that it might possibly have been true.

The proviso

The Crown orally addressed the proviso in economical submissions at the end of the hearing in this Court. The Crown submitted that the case against Mr Dedeoglu was strong and "to the extent that there was a defect in the trial that might be characterised as a miscarriage and, in the Crown submission, there isn't one … no substantial miscarriage flowed".
Mr Dedeoglu referred the Court to its decision in Rees v R [2010] NSWCCA 66, in which the following appears: "14 Prima facie, an error of this nature in a case of this nature requires the Court to quash the conviction and order a new trial. The Crown has invited the Court to apply the proviso to s 6 of the Criminal Appeal Act and dismiss the appeal because there was no substantial miscarriage of justice. In order to convict the appellant on the second count, the jury had to accept the complainant's evidence about the events on the morning of 30 September and in all probability, they also accepted her relationship or context evidence. The acquittal on the first charge was justified by the complainant's confusion or mistake about when the relevant events had occurred. The jury were entitled to reject that part of her evidence without forming an unfavourable view about her overall reliability as a witness. 15 The complainant's evidence on the second charge was uncorroborated, but her prompt complaints to her partner and others, and her conduct at that time, was consistent with her evidence. On the other hand, there was also a strong defence case, at least on the face of the record, in relation to the lack of any opportunity for the appellant to make inappropriate sexual advances and have inappropriate sexual contact with the complainant on many occasions during the lengthy period between the events charged in the first count and the events charged in the second. 16 The appellant completely denied the evidence given by the complainant about the offences and his intervening conduct, and in particular he denied that sexual intercourse took place on the morning of 30 September 2006. There is no direct corroboration of the complainant's evidence about the second offence. 17 The case is essentially one of oath against oath, although as I have previously said, there was corroborated evidence of prompt and consistent complaints on and after 30 September. 18 Nevertheless, one way or another, all the subsequent complaints and conduct come back to the complainant herself. There is no independent corroboration of her primary evidence about the offence. 19 Crown counsel was asked by the Court whether she was aware of any case where this or a similar Court has applied the proviso where there has been a serious misdirection and the case is essentially one of oath against oath: 20 Crown counsel was not able to refer the Court to such a case and the Court is not aware of any. The evidence was highly prejudicial though admissible for a limited purpose. It was essential that the jury be given a clear instruction as to the limited use they could properly make of that evidence. In particular they had to be instructed that they could not use it to demonstrate the propensity of the accused to offend in a sexual manner against the complainant. This is a difficult guideline for any jury or indeed any judge to follow in assessing such evidence. In view of its prejudicial nature, I cannot be judicially satisfied that a jury properly instructed about the use they could make of this evidence would inevitably have convicted the appellant."

[2002] HCA 53

[2009] VSCA 300

[2006] QCA 220

[2018] HCA 40

[2021] HCA 28

(2017) 13 ACTLR 1

(1937) 57 CLR 170

(2000) 202 CLR 321

(1998) 195 CLR 606

(2021) 395 ALR 1

(1994) 181 CLR 487

(2002) 213 CLR 606

(2005) 222 ALR 436

(1990) 19 NSWLR 677

(1989) 54 SASR 17

(1974) 131 CLR 510

(2016) 258 CLR 308

(2002) 212 CLR 124

(2005) 224 CLR 300

(1936) 55 CLR 499

(2020) 267 CLR 109

(1978) 141 CLR 54

(2018) 264 CLR 541

(2018) 266 CLR 56

(1979) 142 CLR 531

(1992) 10 WAR 279

(1959) 101 CLR 298

(2000) 199 CLR 620

(2002) 210 CLR 285

(1987) 163 CLR 221

(1999) 199 CLR 40

(2014) 253 CLR 455

[2014] HCA 20

[1936] HCA 40

Cited By (1)

Habambo v R

Mr Dedeoglu maintains that this evidence is somehow unsatisfactory and that there should have been some further or other evidence about the relationship, if any, between the absence of female genital injury and the existence of consent. However, Mr Dedeoglu's submissions tend to reveal other concerns: "382 I've asked to my legal team to call another expert witness to court. Because I wasn't agree Dr Woods' opinion in her Expert Certificate, on the base that she does not say whether penetration was consensual, where there is no any finding in the complainant's examination. Her opinion was inadequate. In the another case, Doctor [Cooper] who is from same hospital with Dr Woods (from RPA Hospital), he gave different opinion than Dr Woods, about symptom issue in the Cordeiro v R [2019] NSWCCA 308 case. And I wrote that in the email to my lawyer, about that opinion difference between doctors. … 385 So Dr Cooper's evidence was opposite to Dr Woods' evidence. Dr Cooper obviously linked 'injury' and 'painful' with 'dry vagina', which wouldn't be aroused, because of the unconsciousness of the person. Similarly Dr Cooper also linked 'non painful penetration' with lubricated vagina, which occurs in consensual penetration. Because of vagina lubricated, pain and injury wouldn't be expected. His evidence obviously contradicts Dr Woods' opinion. 386 There was another evidence apart from the complainant's report in the hospital. Police put the complainant's underwear photograph in my brief file. About that photograph, police explanation was 'dry fluid stain', which resulted by lubrication of vagina. I also told my lawyer and my barrister about that evidence and I asked to submit that to jury and to doctor and ask question if that happens in consensual penetration, which my legal team agreed. However, didn't do that. I asked them to call another doctor witness but they told me, Legal Aid will not fund for that. They also did not do adequately cross-examination to Dr Woods. My barrister asked to court for speak with Dr Woods before she gave her evidence, I have no knowledge about that conversation."

Mr Dedeoglu referred to some passage from a decision of the ACT Court of Appeal in Agresti v The Queen (2017) 13 ACTLR 1; [2017] ACTCA 20 as follows: "[108] In this case, were the jury to have considered that the basis for the lack of consent by the complainant was her unconsciousness, then the jury would need assistance, for the question was one of some complexity where it was not asserted by the Crown that she was unconscious during the whole of the episode but, as described 'in and out of consciousness'. Indeed, it was not clear precisely when she was not conscious. [109] The trial judge did not address that issue at all, directing the jury only to the question of consciousness in a general way. Accordingly, leave should be granted and the issue addressed. [110] The direction of the trial judge was as follows: Before you can consent to an act of intercourse or anything for that matter, you must have the opportunity to do so. What that means is if a person is asleep or unconscious at the time that an act of intercourse occurs, they cannot have consented because they did not have - unless of course they agree before they fell asleep or something like that but let's not worry about those complications; that the person cannot have consented if they were unconscious at the time because they were incapable of consenting. They had no opportunity to consent freely and voluntarily. [111] The Crown pointed out what her Honour had later said about the issue of consent: Whether at the time that the intercourse occurred, [the complainant] consented to that act of penile-vaginal intercourse. What the Crown has to prove is the negative of course. The Crown must prove beyond reasonable doubt that [the complainant] did not consent to that act of sexual intercourse. [112] This, the Crown submitted, made it clear to the jury that the Crown had to prove the absence of consent by the complainant for the duration of the sexual intercourse. [113] In our view, that is by no means clear from those directions. A person can withdraw consent at any time and thereafter the continuation of intercourse is an offence: Ibbs v The Queen [1988] WAR 91 at 93-4. [114] It may be accepted that a person who is unconscious is not capable of giving consent to intercourse: R v Mayers (1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114. The Crown case on consciousness, however, was not that the complainant was unconscious at all relevant times, but that the complainant lapsed in and out of consciousness. [115] Whether lack of consciousness during intercourse means that consent is withdrawn is a matter of fact; it is not necessarily so. The direction does not address that issue at all. [116] Thus, if the complainant consented prior to falling unconscious and, when she regained consciousness after, perhaps, a short period and continued to participate actively in the intercourse, the jury may have, if properly instructed, found that there was no lack of consent. It may be that, as pointed out in Saibu v The Queen (1992) 10 WAR 279 at 292, consent to the continuance of intercourse beyond consciousness may have been given, but that is a question of fact for the jury. Clearly, the jury would have to have been carefully instructed as to whether there was any basis for the absence of consent during any period of unconsciousness on the whole of the facts. This was not addressed."

Dedeoglu v R

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