Citation: Re Application by Dedeoglu (No 2) [2022] NSWCCA 231
Court: Court of Criminal Appeal, New South Wales
Date: 26 October 2022
Judge(s): Beech-Jones CJ at CL
Background
The applicant had been convicted by jury in February 2020 of two counts of indecent assault and one count of sexual intercourse without consent. The offending arose from an attack on a sleeping 17-year-old passenger during a ride-share journey. He was sentenced to an aggregate term of 8 years and 6 months' imprisonment with a non-parole period of 6 years.
The applicant filed a Notice of Application for Leave to Appeal against both conviction and sentence. Pending the hearing of that appeal, he made numerous applications to the Registrar of the Court of Criminal Appeal for orders under s 12 of the Criminal Appeal Act 1912 (NSW), seeking production of a wide range of documents, records, and materials. The Registrar refused those applications, and the applicant sought review of those refusals.
This judgment dealt with the review application, which was supported by a 78-page handwritten submission cross-referenced to 367 pages of handwritten submissions filed in support of the appeal itself.
Legal Issues
- Whether the Registrar was correct to refuse the various production orders sought under s 12 of the Criminal Appeal Act 1912 (NSW)
- What the "interests of justice" threshold in s 12 requires, and how it relates to the grounds of appeal
- Whether s 12 orders can be used to conduct a broad inquiry into the fairness of a trial or the adequacy of legal representation
- Whether the specific categories of documents sought were sufficiently connected to the grounds of appeal to warrant production orders
Decision
Beech-Jones CJ at CL dismissed the review application in its entirety, upholding the Registrar's refusals across all categories of material sought. The central reason was that the applicant fundamentally misunderstood the nature of the criminal appeal process and, consequently, the scope of s 12.
Drawing on the Court of Criminal Appeal's earlier analysis in Xie v R [2021] NSWCCA 1, the Chief Judge confirmed that s 12 is not a free-standing power to gather evidence or conduct an inquiry. Orders under s 12 must be in the "interests of justice," and that phrase is defined by reference to the particular grounds of appeal. A criminal appeal is not a retrial, and the appellate court does not reformulate factual issues or speculate about how the trial might have been conducted differently.
Where an appeal ground alleges inadequacy of legal representation causing a miscarriage of justice, some latitude exists for evidence not adduced at trial. However, the Chief Judge emphasised that even in those circumstances, the scope for s 12 orders is narrow. An applicant must identify with precision the alleged failing of the legal representatives, explain how it occasioned a miscarriage of justice, and demonstrate a direct connection between those contentions and the documents sought. Broad or sweeping requests, untethered to specific grounds, will not satisfy the "interests of justice" test.
Reviewing each category individually, including mobile phone carrier records, former solicitors' communications, the Sexual Assault Information Kit, DNA and forensic materials, CCTV footage, police statements, and the complainant's diary, the Chief Judge found that none of the additional orders sought were warranted. Some material had already been produced or would be included in the appeal books; the remaining requests were either too broad, not connected to the grounds of appeal with sufficient precision, or lacked a proper evidentiary basis.
Orders Made
- The application for review of the Registrar's decisions was dismissed in full.
- No further s 12 production orders were made in respect of any of the categories sought, including mobile phone carrier records, former solicitors' records, Sexual Assault Information Kit materials, DNA and forensic materials, CCTV footage, police brief documents, and the complainant's diary.
- Materials such as trial judgments, jury notes, materials given to the jury, and certain exhibits were noted as items that would be provided in the appeal books.
Key Takeaways
- Section 12 of the Criminal Appeal Act 1912 (NSW) does not confer a free-standing power to gather evidence or investigate trial fairness; the "interests of justice" threshold is assessed by reference to the specific grounds of appeal.
- A criminal appeal in the Court of Criminal Appeal is not a vehicle for conducting an independent inquiry into how a trial was conducted or whether legal representation was adequate in a general sense.
- Where an appeal ground alleges inadequate legal representation causing a miscarriage of justice, any s 12 order must be narrowly targeted: the applicant must identify the specific failing, its connection to a miscarriage of justice, and the direct relevance of the documents sought.
- Broad, sweeping requests for categories of documents that are not calibrated to specific appeal grounds will not satisfy the interests of justice requirement, and the court will decline to make such orders.
- In dismissing the review, the Chief Judge confirmed that material forming part of the appeal books does not need to be the subject of separate s 12 production orders.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 6, 12, 22
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 6.1
- Crimes Act 1900 (NSW), ss 61I, 61L
Cases:
- Xie v R [2021] NSWCCA 1
- Dedeoglu v R [2022] NSWCCA 74
- Re Application by Dedeoglu [2022] NSWCCA 192