AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 3 July 2020

Dogan v R

[2020] NSWCCA 151

Sexual offences

Citation: Dogan v R [2020] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 3 July 2020
Judge(s): Hulme J, Fagan J, Cavanagh J

Background

The applicant had been convicted at trial of serious criminal offences. The complainant in those proceedings was a cognitively impaired person, and his evidence was adduced in two ways: by the playback of a recorded police interview, and by audio-visual link from a remote location. All parties at trial, including all three defence counsel, agreed to this course and raised no objection to it.

After conviction, the applicant sought an extension of time in which to file a notice of application for leave to appeal. The proposed ground of appeal was a point not raised at trial: that the trial judge had erred by permitting the complainant to give evidence under Chapter 6, Part 6 of the Criminal Procedure Act 1986 (NSW) without first forming an independent, express satisfaction that the statutory precondition in s 306P(2) was met.

The delay in filing was substantial. The applicant's legal team offered limited explanation, citing the time taken to obtain a trial transcript and subsequent consideration of other issues.

  • Whether the trial judge was required to conduct an independent inquiry and expressly record satisfaction of the s 306P(2) precondition (that the facts of the case may be better ascertained if the cognitively impaired complainant gave evidence in the alternative manner) before allowing the recorded interview to be received as evidence.
  • Whether, in the absence of any such expressed satisfaction, there was a miscarriage of justice.
  • Whether leave should be granted to raise a ground not raised at trial.
  • Whether an extension of time in which to file the notice of application for leave to appeal should be granted.

Decision

The Court, in three concurring judgments, held that the trial judge was not required to conduct an independent inquiry into the s 306P(2) precondition once all parties had clearly agreed that the complainant would give evidence by the alternative means provided under Chapter 6, Part 6. Fagan J reasoned that, in the face of unanimous agreement among experienced counsel, it would have been unnecessary for her Honour to receive independent evidence and form her own satisfaction afresh, as though the matter were in dispute.

The Court further held that, while the trial judge did not expressly state she was satisfied of the precondition, no such express statement was required. Hulme J noted, citing Panchal v R; R v Panchal [2014] NSWCCA 275, that there is no requirement for an express recording of that satisfaction. He added that it would nonetheless have been prudent for her Honour to do so briefly, precisely to avoid the kind of "armchair" appeal that followed.

Even setting aside the question of formal compliance, the Court observed that the applicant himself had agreed at trial to the course taken, did not dispute that the complainant was cognitively impaired, and did not contest that the recorded interview better ascertained the facts. On those combined grounds, the Court was satisfied there was no miscarriage of justice.

On the extension of time question, Cavanagh J found the explanation for the lengthy delay inadequate. He also noted that, independent of the procedural deficiency, there was always a substantial risk the appeal would fail given the absence of any miscarriage of justice. Both factors weighed against granting the extension.

Orders Made

  • The application for an extension of time in which to file the notice of application for leave to appeal was refused.

Key Takeaways

  • Under s 306P(2) of the Criminal Procedure Act 1986 (NSW), a trial judge dealing with the evidence of a cognitively impaired person is not required to conduct an independent inquiry into whether the alternative evidence provisions apply when all parties have agreed to that course.
  • No miscarriage of justice arises where an applicant, having agreed at trial to a complainant giving evidence by recorded interview and audio-visual link, later challenges the statutory basis for that procedure without disputing the complainant's cognitive impairment or the utility of the recording.
  • Although an express statement of satisfaction of the s 306P(2) precondition is not legally required, the Court of Criminal Appeal noted it would be prudent practice for a trial judge to record that satisfaction briefly on the transcript.
  • A ground of appeal not raised at trial will not attract leave to appeal where there was no miscarriage of justice and the applicant was a party to the very course of which he later complained.
  • In dismissing the application for an extension of time, the Court confirmed that both the adequacy of the explanation for delay and the prospects of success are relevant discretionary considerations, and that each weighed against the applicant in this case.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), Ch 6 Pt 6, ss 3, 294B, 306O, 306P, 306R, 306S, 306V, 306ZJ
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 10(1)(b)
- Criminal Appeal Rules, rr 3A, 4, 23C
- Crimes Act 1900 (NSW), ss 86, 94, 97, 99, 112, 192E
- Evidence Act 1995 (NSW), ss 59, 112
- Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW)
- Crimes Amendment (Cognitive Impairment - Sexual Offences) Act 2008 (NSW)

Cases:
- Panchal v R; R v Panchal [2014] NSWCCA 275
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4
- CF v R [2017] NSWCCA 318
- ARS v The Queen [2011] NSWCCA 266
- Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
- Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3