Citation: Re Application by Dedeoglu [2022] NSWCCA 192
Court: Court of Criminal Appeal, NSW
Date: 2 September 2022
Judge(s): Beech-Jones CJ at CL
Background
The applicant, a convicted prisoner, was found guilty by jury in February 2020 of two counts of indecent assault and one count of sexual intercourse without consent. The offending involved an attack on a sleeping 17-year-old passenger while the applicant was working as a ride-share driver. He was sentenced in April 2020 to an aggregate term of eight years and six months imprisonment, with a non-parole period of six years.
The applicant filed a Notice of Intention to Appeal on the day of sentencing and subsequently filed an application for leave to appeal, supplemented by numerous sets of additional grounds and submissions over the following months. Two scheduled hearing dates were vacated, both due to the applicant filing further submissions and material. The Registrar directed him to consolidate his submissions, resulting in a single document of 369 pages. At the time of this application, the leave to appeal hearing was listed for 14 November 2022.
By letter dated 30 June 2022, the applicant sought review under Rule 6.1 of the Supreme Court (Criminal Appeal) Rules 2021 of various decisions made by the Registrar of the Court of Criminal Appeal. Beech-Jones CJ at CL heard the review application.
Legal Issues
- Whether the hearing date for the leave to appeal application should be expedited
- Whether a new bail hearing date should be fixed
- Whether production orders under s 12 of the Criminal Appeal Act 1912 (NSW) should be made or enforced
- Whether the applicant was entitled to attend the appeal hearing in person rather than via audio-visual link
- How much time the Crown should be given to file its submissions before the hearing
- Whether the applicant could require particular Turkish interpreters to be excluded
- Whether the Registrar was correct to decline to place all emails between the applicant and his former solicitors before the Court
- Whether the matter should be referred for judicial case management rather than remaining with the Registrar
- Whether various complaints made against the Registrar were established
Decision
Expedited hearing: The Chief Justice declined to bring the 14 November 2022 hearing date forward. Both previous hearing dates had been vacated because the applicant filed additional material, and the Crown required adequate time to address the consolidated 369-page submissions. The interests of other litigants also weighed against expedition. The Chief Justice noted that filing further material would risk the November date being vacated and the matter not relisted until 2023.
Bail: The application for a new bail hearing date was refused. The Court confirmed its earlier ruling in Dedeoglu v R [2022] NSWCCA 74 that it had no jurisdiction to entertain a bail application because the leave to appeal application had been filed out of time, meaning no proceedings were currently pending before the Court. Fixing a bail application ahead of the leave to appeal hearing would be futile in those circumstances.
Production orders and enforcement: Most prior production order applications had been refused by the Registrar. Regarding complaints about incomplete compliance with existing notices (by former solicitors and a ride-share company), the Chief Justice held that it was incumbent on the applicant, as the moving party, to demonstrate that full production had not occurred and then take steps to enforce the notices. The production order applications were to be addressed in a separate judgment.
Personal attendance, interpreter, Crown submissions, and document filing: The application for in-person attendance at the hearing was refused. The Chief Justice found no sufficient reason had been demonstrated, particularly given the applicant had already filed 369 pages of consolidated submissions. The request to have Crown submissions translated into Turkish was also refused, as the applicant's command of written English was evident from his own submissions. The Crown was ordered to file its submissions four weeks before the hearing, by 17 October 2022. The Registrar's refusal to place every email between the applicant and his solicitors before the Court was confirmed as correct: unfocused filing of such material does not advance an appeal and wastes the Court's time. The interpreter preference issue was referred back to the Registrar. Complaints about the Registrar's conduct were not established.
Orders Made
- The Registrar's decisions, to the extent challenged under the Rules, were confirmed.
- The respondent (the Crown) was ordered to file and serve its submissions on or before 17 October 2022.
Key Takeaways
- Under s 22(1) of the Criminal Appeal Act 1912 (NSW), a designated judge of the Common Law Division may review procedural decisions of the Registrar of the Court of Criminal Appeal in the same manner and subject to the same provisions as the Court itself.
- A prisoner's bail application before the Court of Criminal Appeal cannot proceed unless there are proceedings pending before that Court. Where a leave to appeal application is filed out of time without extension, no such proceedings exist.
- Expedition of an appeal hearing will not be granted where prior delays resulted from the appellant's own filing conduct and where other litigants have a legitimate interest in orderly listing.
- Appellants seeking to rely on communications with former legal representatives must identify the precise basis for each document sought to be filed. Unfocused production of voluminous correspondence does not advance an appeal and may properly be declined by the Registrar.
- As the moving party on a production order, an applicant bears the burden of demonstrating non-compliance and pursuing enforcement. The Court will not take those steps on the applicant's behalf.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), ss 12, 22
- Supreme Court (Criminal Appeal) Rules 2021, Rule 6.1
Cases:
- Dedeoglu v R [2022] NSWCCA 74