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[2025] ACTCA 14
respondent. Application for leave to appeal refused.
No linked legislation citations have been extracted yet.
The Court of Appeal did not decide whether the trial judge was right to exclude the expert report or to restrict the proposed questioning about the complainant’s prior sexual activities. It decided only that there was not a sufficient basis to pause or fragment the ongoing trial for an interlocutory appeal. The complainant had begun giving evidence, the asserted factors favouring leave were not persuasive, and the Court considered the prospects insufficiently high. The application for leave was therefore refused.
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1,976 words · generated 05/10/2026
Hakan Eren was being tried before a jury in the Supreme Court of the Australian Capital Territory on an indictment containing five counts of sexual intercourse without consent and two counts of acts of indecency without consent ([1]). The trial was listed to begin on 12 May 2025, with an estimate of five days. The jury was not empanelled on the first listed day because the trial judge first had to determine applications about expert evidence and proposed questioning concerning the complainant’s prior sexual activities ([7]).
The defence had served a report from Professor Goodman-Delahunty on 4 April 2025 ([2]). The report had two parts. The first addressed flashbacks and involuntary intrusive memory, including the expert’s opinion that these could produce dissociative amnesia. The second considered whether features described by the complainant were consistent with flashbacks during the alleged offences, and what that might mean for her recollection ([2]–[3]).
The expert expressed the opinion that a flashback during the incident was likely to have caused memory lapses, disrupted memory encoding and consolidation, and led the complainant to substitute memories of a previous sexual assault for a continuous memory of events with Mr Eren ([3]). Those opinions relied on assumptions that the complainant had experienced prior sexual assault or assaults and that she suffered from Post-Traumatic Stress Disorder ([4]).
Eren sought leave under ss 76 and 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to adduce evidence of prior assaults, including through cross-examination. He also sought to rely on the expert evidence as going to the complainant’s credit under s 108C of the Evidence Act 2011 (ACT) ([5]). The Director of Public Prosecutions argued that the expert evidence was irrelevant under s 55 because there was no evidence proving the assumptions, or alternatively that it should be excluded under s 135 ([6]).
The trial judge, Mossop J, took the expert’s evidence on a voir dire and heard cross-examination before ruling against the applicant on the two applications ([7]–[11]). By the time the Court of Appeal heard the leave application, the complainant had begun giving evidence ([9]). McCallum CJ refused leave on 15 May 2025 ([20]).
The Court applied a cautious approach to interlocutory appeals in criminal proceedings. At [12], McCallum CJ explained that the requirement for leave reflects “the law’s antagonism to the truncation of the criminal trial process” and that leave to appeal mid-trial is granted sparingly. The Court referred to the four considerations stated in Miles v R [2013] ACTCA 52 at [11], cited through R v DL [2018] ACTCA 9:
Eren relied principally on his immigration status as a reason why refusing leave could cause substantial injustice, or why exceptional circumstances existed ([13]). The evidence he offered about that issue was hearsay from unidentified Legal Aid personnel, and McCallum CJ rejected that evidence as inadmissible ([13]). The Chief Justice nevertheless considered migration status separately. The reasons state that a serious conviction may expose a person in Eren’s position to deportation, and refer to the rule of law protections available to challenge a deportation decision and to seek a stay while criminal proceedings continue. The DPP also informed the Court that she had authority to grant a justice visa pending the conclusion of proceedings ([14]).
Another factor was the possibility of distress to the complainant if she were cross-examined and later had to give evidence again following a successful appeal ([15]). The DPP informed the Court that the complainant recognised that risk but considered disruption of the existing trial more distressing ([16]). McCallum CJ treated the factors favouring leave as “not persuasive” ([17]).
The Court also considered whether the challenged decision was sufficiently doubtful to warrant appellate reconsideration. McCallum CJ deliberately said little about that merits question, but concluded that the prospects were not sufficiently high to justify fragmenting the trial after the complainant had begun her evidence and was about to be cross-examined ([18]). The reasons therefore resolve the leave application, not the ultimate admissibility of the expert evidence or the merits of the statutory application concerning prior sexual activities.
The judgment does not purport to change the law governing interlocutory appeals. It describes the applicable principles as “well established” and applies the four considerations from Miles v R, as referenced in R v DL ([12]). The decision is therefore best read as an application of an existing leave framework to a trial already in progress, rather than as a new evidentiary rule.
Before this decision, the cited framework required attention both to the possible error in the ruling and to the practical consequences of an appeal during trial. The framework is not limited to whether the applicant can identify an arguable error. It also asks whether refusing leave could cause substantial injustice, whether an appeal would fragment the trial, and whether exceptional circumstances justify proceeding notwithstanding fragmentation ([12]).
After the decision, the immediate legal effect was that these particular interlocutory rulings were not taken to an appellate hearing during the trial. The Court did not determine whether the trial judge’s s 135 exclusion was correct, whether the expert’s assumptions had an adequate evidentiary foundation, or how ss 76 and 77 applied to the proposed questioning. Those questions were not resolved by refusing leave.
The decision also illustrates the difference between a leave ruling and a final determination of an evidentiary issue. Refusal of leave means the proposed appeal did not proceed at that stage. It is not, by itself, an appellate endorsement of every part of the trial judge’s reasoning. The judgment’s account of the evidence and competing submissions supplies context for the leave decision, but the Chief Justice expressly refrained from a detailed assessment of the merits ([18]).
At [12], the Court states: “Leave to appeal mid-trial will be granted sparingly.” In plain English, a party seeking an appeal while a criminal trial is underway faces a high practical hurdle because an appeal may interrupt the trial. The judgment links that caution to the risk of “truncation” of the criminal process.
The four-part framework quoted at [12] provides the structure for deciding whether leave is justified. In plain English, a court considers the apparent strength of the challenge, the consequences of refusing to hear it immediately, the disruption an appeal may cause, and whether unusual circumstances justify accepting that disruption. The four considerations are stated as an evaluative test, not as a finding that any single factor automatically determines the result.
At [13], McCallum CJ says the migration evidence was “inadmissible hearsay based on the experience of unidentified personnel at the Legal Aid office”. In plain English, the information was not accepted as admissible proof of the claimed immigration consequences because it was attributed to unidentified people and presented indirectly.
At [17], the Court concludes that the factors favouring leave “are, in my assessment, not persuasive”. This is the overall assessment of the circumstances advanced to justify interrupting the trial. It is not a detailed decision on the substantive admissibility of the expert report.
At [18], the Court says the prospects were not “sufficiently high to warrant the very serious step of fragmenting the trial” while the complainant had started giving evidence and was about to be cross-examined. In plain English, the Court considered that the potential merits of the challenge did not justify stopping or dividing the ongoing trial at that point.
Finally, [20] gives the formal order: “the application for leave to appeal is refused.” The disposition is procedural. No appeal on the merits was determined in this decision.
The judgment is particularly relevant to an application for leave to appeal an evidentiary ruling made during a criminal trial, where the proposed appeal could interrupt proceedings already underway. The immediate circumstances included a complainant who had commenced giving evidence, an expert report served before trial, a voir dire, and a proposed appeal concerning both expert evidence and questioning about prior sexual activities ([2]–[11]).
The reasoning may also be relevant where an applicant relies on personal consequences, such as possible migration effects, to argue that refusing an immediate appeal would cause substantial injustice or that exceptional circumstances exist. The judgment shows that such consequences are considered within the leave framework, but that the evidence supporting them matters. Here, the particular hearsay evidence was rejected, although the Chief Justice separately considered the general migration issue and information about a possible justice visa ([13]–[14]).
The case also highlights that potential effects on a complainant can form part of the practical context of an interlocutory leave application. The Court recorded the complainant’s stated concern about disruption and the prospect of giving evidence again ([15]–[16]). The judgment does not establish that this consideration will always outweigh an applicant’s case. It formed part of the circumstances in this application.
This decision should not be treated as deciding whether expert evidence about flashbacks or memory is generally admissible. The Court did not resolve that question on appeal. Its significance lies in the approach to leave and trial fragmentation, rather than a substantive ruling on the science or evidentiary status of memory evidence.
The supplied judgment contains no discussion of decisions delivered after Eren v DPP [2025] ACTCA 14 and gives no account of subsequent treatment by later courts. It is therefore not possible, on the material provided, to state whether later courts have followed, distinguished, criticised, or otherwise treated this decision.
The authorities it itself cites are Miles v R [2013] ACTCA 52 at [11] and R v DL [2018] ACTCA 9 ([12]). McCallum CJ uses the framework attributed to Miles and notes that both parties addressed the Court by reference to the matters set out in R v DL. The judgment does not set out a separate analysis of the facts or outcome of either earlier case.
Accordingly, any account of later judicial treatment would require sources beyond the judgment supplied here. The reliable point available from this text is that Eren applied the stated interlocutory leave framework to the particular circumstances of an ongoing trial.
The substantive correctness of Mossop J’s s 135 ruling remains undecided in this judgment. The Court refused leave without determining whether Professor Goodman-Delahunty’s evidence was irrelevant under s 55, excluded under s 135, or otherwise admissible under the Evidence Act 2011 (ACT) ([6], [11], [18]).
The judgment also does not decide whether the assumptions underlying the expert’s opinions were established, whether the complainant had experienced flashbacks during the alleged offences, or what effect any such experience had on her memory. Those matters appear in the description of the report and the parties’ submissions, rather than as findings by the Court of Appeal ([2]–[6]).
The second ruling, under ss 76 and 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), was also not reviewed on its merits. The complainant’s answer before the jury appeared to refer to prior sexual experience, and the Chief Justice expressly left it to Mossop J to consider whether that answer provided a basis to revisit the ruling ([19]).
Finally, the judgment does not specify the eventual course or outcome of the criminal trial, any later appeal, or any deportation proceedings. It refers to migration consequences only as part of the leave application’s asserted circumstances ([13]–[14]). Those matters cannot be inferred from this judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Eren v DPP Citation: [2025] ACTCA 14 Hearing Date: 14, 15 May 2025 Decision Date: 15 May 2025 Before: McCallum CJ Decision: See [17]. Catchwords: CRIMINAL LAW – Application for leave to appeal – appeal against evidentiary ruling – expert evidence – memory evidence – discretion to exclude evidence – where expert expressed opinion concerning “flashbacks” experienced by complainant during alleged assault – undesirability of truncating criminal trial Legislation Cited: Evidence Act 2011 (ACT) ss 55, 108C, 135 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 77 Cases Cited: Miles v R [2013] ACTCA 52 R v DL [2018] ACTCA 9 Parties: Hakan Eren (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel S Baker-Goldsmith with S Robinson (Applicant) V Engel with G Cuthel (Respondent) Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 12 of 2025 Decision Under Appeal: Court/Tribunal: ACTSC Before: Mossop J Date of Decision: 14 May 2025 Case Title: DPP v Eren Citation: [2025] ACTSC 199 McCALLUM CJ: EX TEMPORE REASONS (REVISED):
Hakan Eren is currently being tried in the Supreme Court before Mossop J with a jury on an indictment containing five counts of sexual intercourse without consent and two counts of acts of indecency without consent. The trial was listed to commence on Monday, 12 May 2025 with an estimate of five days. However, as I will explain, the trial proper did not commence that day.
On 4 April 2025, the solicitors acting for the accused, Legal Aid ACT, served a report from an expert, Professor Goodman-Delahunty, on the topic of memory – a topic to which I will return. The report was in two parts. The first part addressed the phenomenon of “flashbacks”, wherein a person re-experiences a prior traumatic event. That part of the report was directed to involuntary intrusive memory which, in the opinion of the Professor, produces dissociative amnesia.
The second part of the report addressed whether features of what the complainant in the present case described were consistent with her having experienced involuntary memory retrieval or flashbacks during the course of the alleged offences and, if so, what would be the impact on her memory of what occurred. Professor Goodman-Delahunty expressed her opinions at [59] and [60] of the report as follows: The impact on [the complainant] of having a flashback during the course of the incident with Mr Eren is likely to have resulted in memory lapse or lapses in her memory for what actually occurred, as was noted above. This occurs because an intrusive flashback precipitates dissociative amnesia. [The complainant] did not appear to be aware of the link between her triggers and a memory flashback, and did not perceive that she may have experienced a memory flashback while in her car with Mr Eren that disrupted her ability to fully recall the sequence of events with Mr Eren. While the flashback was ongoing, [the complainant’s] memory encoding and consolidation for the events that occurred with Mr Eren was disrupted. In place of a continuous memory for events that occurred with Mr Eren, while the flashbacks persisted, [the complainant] is likely to have substituted the contents of her memory of her previous sexual assault.
Those opinions were based on certain assumptions: first, statements that have been made by the complainant to police and others indicating that she has experienced a prior sexual assault or assaults; and secondly on the assumption that she suffers from Post- Traumatic Stress Disorder.
The accused made an application under ss 76 and 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for leave to adduce evidence of those prior assaults, including by exploring them in cross-examination. He sought to rely on the evidence of Professor Goodman-Delahunty as going to the complainant’s credit under s 108C of the Evidence Act 2011 (ACT).
The Director of Public Prosecutions sought to have Professor Goodman-Delahunty’s evidence excluded under s 55 of the Evidence Act as being irrelevant because there was no evidence to prove the two assumptions to which I have referred. Alternatively, the Director sought to have the evidence excluded under s 135 of the Evidence Act as being evidence falling within any of the three descriptions in that section.
It was necessary for those applications to be determined before the trial commenced. Mossop J accordingly determined not to empanel a jury on the first day of the trial listing. As I understand the position, that was with the consent or support of the parties. The evidence of Professor Goodman-Delahunty was then taken on the voir dire and the Director of Public Prosecutions, Ms Engel, cross-examined her at length.
On Tuesday morning, Mossop J empanelled a jury and heard further argument. The parties then made their opening addresses to the jury. His Honour gave his ruling shortly after the lunch adjournment that day. On Wednesday morning, the accused applied for leave to appeal against his Honour’s rulings.
The trial continued and the complainant’s evidence-in-chief interview was played to the jury. The complainant then gave short further evidence-in-chief and the trial was adjourned for the rest of the day to afford the accused an opportunity for his application for leave to appeal to be heard. I heard that application commencing at 3.00 pm on the Thursday afternoon.
The application was stood over to afford the accused’s counsel, Ms Baker-Goldsmith, an opportunity to give proper consideration to his Honour’s reasons, which had been published only shortly before the commencement of the hearing of the application for leave to appeal.
Leave to appeal is required because the rulings given by Mossop J are interlocutory. His Honour gave two rulings, one rejecting the evidence of Professor Goodman-Delahunty under s 135 of the Evidence Act, the second rejecting an application by the accused otherwise to proceed to explore the issue of the complainant’s other sexual activities under ss 76 and 77 of the Evidence (Miscellaneous Provisions) Act.
The requirement for leave to appeal from such rulings reflects the law’s antagonism to the truncation of the criminal trial process. Leave to appeal mid-trial will be granted sparingly for that reason. The principles applicable to an application for leave to appeal are well established. Both parties addressed me by reference to the four matters set out at [14] in the decision of Burns J in R v DL [2018] ACTCA 9, in turn citing Penfold J in Miles v R [2013] ACTCA 52 at [11] where her Honour articulated the test to be applied as follows: The relevant tests for an application for leave to appeal an interlocutory order in a criminal matter can be summarised as follows: (a) Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal. (b) Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong. (c) Whether a grant of leave would inappropriately fragment the criminal trial process. (d) Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.
The principal reason the accused suggests there would be a substantial injustice in the present case if leave were refused (on the assumption that the decision is wrong), and for contending that there are exceptional circumstances justifying a grant of leave despite any fragmentation of the trial process, was his immigration status. The only evidence put forward concerning that issue was inadmissible hearsay based on the experience of unidentified personnel at the Legal Aid office in the ACT. I rejected that part of the applicant's evidence.
I have separately given consideration to the applicant’s migration status and whether that presents any exceptional circumstance or risk of substantial injustice if the application is refused. Based on my experience, it may be accepted that, if a person in the position of the accused is convicted of a serious offence, the conviction exposes the person to a risk of deportation. However, in such circumstances, the person liable to be deported has the protection of the rule of law, which requires that the person be afforded an opportunity first to challenge the deportation decision but separately to stay the finalisation of the deportation decision pending the conclusion of the criminal justice proceedings. In that context, the Director informed the Court that she has authority to grant a justice visa pending the conclusion of the proceedings. Plainly, an occasion would arise for the grant of such a visa in the event if the accused is convicted and appears to be at risk of deportation pending the determination of any appeal.
Separately, the accused relied on the prospect of hardship to the complainant if she is cross-examined today and beyond, only to have to be cross-examined again if an appeal is successful and it transpires that she ought to have been cross-examined on a different premise.
Against that, the Director has informed me that instructions were taken from the complainant yesterday and that she has indicated that, while she appreciates the risk of having to give evidence a second time, the greater distress to her would be if the present trial were to be disrupted.
In short, the factors militating in favour of a grant of leave (with consequent disruption to the trial) are, in my assessment, not persuasive.
That leaves the consideration of whether the decision is attended by sufficient doubt to warrant its reconsideration by a Court of Appeal. It is preferable to say little on that topic, save to record my conclusion that the prospects are not sufficiently high to warrant the very serious step of fragmenting the trial in circumstances where a complainant in a sexual assault trial has commenced her evidence and is about to be cross-examined.
In respect of the trial judge’s second ruling concerning the application of ss 76 and 77 of the Evidence (Miscellaneous Provisions) Act, I note that, since the filing of the application for leave to appeal, the complainant has given an answer to a question before the jury in which she appears herself to have made reference to her prior sexual experience. Whether that is a basis for the trial judge to revisit his ruling under s 76 will be a matter for his Honour.
Orders
I certify that the preceding twenty [20] numbered paragraphs are a true copy of the reasons for judgment of her Honour Chief Justice McCallum. Associate: Date:
Eren
DPP [2025] ACTCA 14
Application for leave to appeal refused.