DPP v Ozturk [2025] VCC 1651 | Case summary

Mr Ozturk is charged with four offences in relation to the alleged sexual touching of the complainant on 9 November 2022. Complaint to police was made immediately. A pre-text call from the complainant to Mr Ozturk was made on 14 November 2022. Mr Ozturk was subsequently arrested and participated in a record of interview on 23 December 2022. He has at all times denied the charges on the basis that he did not touch the complainant sexually, but gave her an entirely appropriate massage.
During the record of interview the accused stated[1] that on 14 November 2022, entirely separate to the pretext call, the complainant called him for 2 minutes.[2] She then texted and called him.[3]
During the committal defence counsel put to the informant that she had conducted an inadequate investigation in failing to check Mr Ozturk's and the complainant's phone.[4]
No CCRs were requested by the informant up to this point. The trial was then listed to commence on 23 October 2025 but due to pre-trial rulings the evidence from the complainant was pushed to 27 October 2025.
On 17 October 2025 the defence requested confirmation that no CCRs had been obtained. This was confirmed. A request was then made on 23 October 2025 by the instructing solicitor for the prosecution to the informant for "...CCRs for the accused's phone between 27 October 2022 to 23 December 2022".[5]
A request for the CCRs was then made by the informant. On 27 October 2025 the informant forwarded the CCRs and they were immediately passed to the defence.
The trial was then adjourned as it was agreed by the prosecution that the CCRs could impact the defence case and they were not in a proper state to be easily understood. The prosecution made it clear that they did not seek to rely on the CCRs or introduce them into evidence unless cross-examination made them relevant. The difficulty in making any assessment of the CCRs was that neither party could decipher them and as defence put it they were an "Xcel dump".
Defence then applied for its costs on the basis that "There is no justifiable reason for the late disclosure of this material given the long history of this matter...".[6]
In a statement provided after the costs application was made the informant, Detective Senior Constable Le, on 3 November 2025 stated "CCRs were not considered, as the complainant had attended the Sunshine Police Station on 14 November 2022, and had partaken in one pre-text recorded telephone call with the accused at approximately 3.47 pm. This meant it was not plausible that two telephone calls which were 15 minutes apart, were made by the complainant on this date."[7]

DPP v Ozturk [2025] VCC 1651 | Case summary | Zoe

Mr Ozturk is charged with four offences in relation to the alleged sexual touching of the complainant on 9 November 2022. Complaint to police was made immediately. A pre-text call from the complainant to Mr Ozturk was made on 14 November 2022. Mr Ozturk was subsequently arrested and participated in a record of interview on 23 December 2022. He has at all times denied the charges on the basis that he did not touch the complainant sexually, but gave her an entirely appropriate massage.
During the record of interview the accused stated[1] that on 14 November 2022, entirely separate to the pretext call, the complainant called him for 2 minutes.[2] She then texted and called him.[3]
During the committal defence counsel put to the informant that she had conducted an inadequate investigation in failing to check Mr Ozturk's and the complainant's phone.[4]
No CCRs were requested by the informant up to this point. The trial was then listed to commence on 23 October 2025 but due to pre-trial rulings the evidence from the complainant was pushed to 27 October 2025.
On 17 October 2025 the defence requested confirmation that no CCRs had been obtained. This was confirmed. A request was then made on 23 October 2025 by the instructing solicitor for the prosecution to the informant for "...CCRs for the accused's phone between 27 October 2022 to 23 December 2022".[5]
A request for the CCRs was then made by the informant. On 27 October 2025 the informant forwarded the CCRs and they were immediately passed to the defence.
The trial was then adjourned as it was agreed by the prosecution that the CCRs could impact the defence case and they were not in a proper state to be easily understood. The prosecution made it clear that they did not seek to rely on the CCRs or introduce them into evidence unless cross-examination made them relevant. The difficulty in making any assessment of the CCRs was that neither party could decipher them and as defence put it they were an "Xcel dump".
Defence then applied for its costs on the basis that "There is no justifiable reason for the late disclosure of this material given the long history of this matter...".[6]
In a statement provided after the costs application was made the informant, Detective Senior Constable Le, on 3 November 2025 stated "CCRs were not considered, as the complainant had attended the Sunshine Police Station on 14 November 2022, and had partaken in one pre-text recorded telephone call with the accused at approximately 3.47 pm. This meant it was not plausible that two telephone calls which were 15 minutes apart, were made by the complainant on this date."[7]

[9]

There was no obligation on the prosecution to obtain the CCRs.[8] That much is agreed between the parties. However the defence position, while complaining about disclosure, is really that by embarking on the process of obtaining the CCRs so late in the piece has caused an unfair situation necessitating the adjournment of the trial for the following reasons.
First that that the CCRs may have contained material that was either inculpatory or exculpatory. In either situation defence needed to factor that material in to their litigation strategy.
Second the prosecution has not disavowed reliance on the material. The prosecution has clearly stated it will not open the material or alter the prosecution opening. However the prosecution has reserved the right to use the material if cross-examination strays into the area where the material becomes relevant. An example shows the way the prosecution is advantaged: The defence has argued that the informant conducted an inadequate investigation. As part of that, and despite the accused raising the issue of multiple phone messages between the accused and the complainant in November 2022, the informant did not pursue the phone records. At the committal this was a plank in the defence attack on the investigation which went squarely to whether the complainant was being entirely truthful. Despite knowing the defence position at committal and up until 17 October 2025 the prosecution had not sought to have the CCRs brought into the case by way of a Notice of Additional Evidence. This would have been to buttress the informant's evidence on this point to allow her to say that she did obtain the CCRs in the conduct of a thorough investigation and the material may well support the complainant's evidence. Now however, the prosecution can rely on the CCRs as demonstrating the informant pursued all relevant matters, if defence continues its long held strategy of criticising the conduct of the investigation. In this way the prosecution gains a significant advantage.
Third it was the prosecution that made the request for the CCRs and not the defence on 17 October 2025. Further the prosecution did not alert the defence to the fact that the CCRs were being sought. This might have led to an immediate application to vacate the trial saving significant time and cost. That opportunity was lost.
Fourth the material disclosed was unable to be deciphered at the time the matter was called on and the complainant was to be called. This meant that defence was left in a position of simply not knowing whether their approach to the witness could be maintained or had to be modified.
Overall the late request and disclosure of material that was potentially significant led to the adjournment. That was the result of the conduct of the prosecution.
In order for s404(1)(a) to be engaged however there must be conduct which has led to the prolonging of the trial. As Leach[9] makes clear there must be a trial. It cannot be doubted that the trial did not commence here as there was no arraignment before a jury panel. The case of CDPP v Ngo[10] relied upon by defence is not relevant as in that case the behaviour of prosecution counsel prior to the trial resulted in the delay of the trial which ultimately ran to conclusion.
Overall I do not consider that this section is enlivened and there is no statutory power to exercise to found the costs application.
As to s404(b) there has not been a departure from s233: there has not been an application to introduce this evidence into the trial.
For completeness I note that s404(1)(c) does not apply as there has not been a failure to comply with Part 5.5 as to pre-trial matters.
As this is the only source of power the defence relies on there is no statutory power to found the application for costs. I would deny the application on these bases. However I would grant an indemnity certificate under the Appeals Costs Act 1998 for the accused's own costs in accordance with s404(3) if such application were made.
The application is dismissed. I will grant parties liberty to apply in relation to any further application for an indemnity certificate.

DPP v Ozturk

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties