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Court of Criminal Appeal 8 April 2022

Dedeoglu v R

[2022] NSWCCA 74

Sexual offences
CRIME BAIL RELEASE APPLICATION PROPOSED CONVICTION AND SENTENCE APPEAL NO APPEAL “PENDING” BEFORE THE COURT NO JURISDICTION TO HEAR APPLICATION

Citation: Dedeoglu v R [2022] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 8 April 2022
Judges: Bellew J, Lonergan J, Ierace J

Background

The applicant was convicted by jury in February 2020 of two counts of indecent assault and one count of sexual intercourse without consent. The offending involved an Uber driver who sexually assaulted a sleeping 17-year-old passenger. He was sentenced in April 2020 to an aggregate term of 8 years and 6 months' imprisonment, with a non-parole period of 6 years.

Following conviction, the applicant filed a Notice of Intention to Appeal against conviction and sentence. He obtained two extensions to that notice, the last of which expired on 12 May 2021. The evidence did not establish that any further extension was granted, and a Legal Aid letter from 20 May 2021 indicated his notice had lapsed.

The applicant filed a Notice of Application for Leave to Appeal on 16 June 2021, outside the time limits permitted under the Criminal Appeal Rules 1952 (NSW). His release application was filed on 22 October 2021, while the appeal and associated leave application were listed for hearing in July 2022.

  • Whether the Court of Criminal Appeal had jurisdiction under the Bail Act 2013 (NSW) to hear and determine the release application, given the applicant's appeal proceedings may not have been "pending" before the Court.
  • If jurisdiction did exist, whether the applicant had established "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW) sufficient to justify a grant of bail.

Decision

Jurisdiction

Lonergan J (with whom Bellew and Ierace JJ agreed) held that the Court lacked jurisdiction to hear the release application. Under ss 59 and 61 of the Bail Act 2013 (NSW), a court may only hear a bail application if proceedings for the relevant offence are "pending" before it. Section 10(2)(b) of the Criminal Appeal Act 1912 (NSW) provides that an appeal is taken to be pending only if a notice of intention to appeal or apply for leave to appeal has been "duly given" and the appeal has been made within the time required by the rules.

The applicant's Notice of Intention to Appeal expired on 12 May 2021, and no extension past that date was established by the evidence. His Notice of Application for Leave to Appeal, filed on 16 June 2021, was filed outside the permitted timeframe under Rule 3B of the Criminal Appeal Rules 1952 (NSW). Accordingly, no proceedings were "pending" before the Court, and the application was struck out for want of jurisdiction. The question of whether leave to appeal out of time should be granted was a matter for the Court constituted to hear the appeal, not the bail application court.

Bail on the Merits (Alternative Findings)

Lonergan J nonetheless considered whether bail would have been granted if jurisdiction had existed. Under s 22 of the Bail Act 2013 (NSW), bail following conviction on indictment cannot be granted unless the applicant establishes special or exceptional circumstances. The applicant advanced six grounds: the number and alleged strength of his appeal grounds; having served more than half his non-parole period; the need to prepare his appeal from liberty; the additional hardship of COVID-19 restrictions; inability to access relevant materials; and inadequate medical care and mental health impacts from delay.

Lonergan J was not persuaded that any of these grounds, individually or together, established special or exceptional circumstances. Having served half the non-parole period was not of itself such a circumstance, nor was the implied difficulty in preparing an appeal, particularly where the Court noted the applicant had already filed hundreds of pages of material. The application would have been refused in any event.

Orders Made

  • The release application was struck out for want of jurisdiction.

Key Takeaways

  • Under ss 59 and 61 of the Bail Act 2013 (NSW), read together with s 10(2)(b) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal only has power to hear a bail application where appeal proceedings are properly "pending" before it, meaning a notice of intention to appeal has been duly given and the appeal filed within required timeframes.
  • Where a notice of intention to appeal has lapsed and the subsequent notice of application for leave to appeal was filed out of time, the Court held that no appeal was "pending" and there was no jurisdiction to hear the release application.
  • The question of whether leave to file an appeal out of time should be granted is a matter for the court constituted to hear the appeal on the merits, not for the court hearing a bail application.
  • Serving more than half of a non-parole period does not, without more, constitute a "special or exceptional circumstance" for the purposes of s 22 of the Bail Act 2013 (NSW).
  • Section 22 imposes a two-stage test: the applicant must first establish special or exceptional circumstances, and the bail authority must then apply the unacceptable risk test under s 18. The same evidence may be relevant at both stages, though satisfying the first stage does not automatically satisfy the second.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 5, 22, 48, 59, 61
- Criminal Appeal Act 1912 (NSW), s 10
- Criminal Appeal Rules 1952 (NSW), r 3B
- Crimes Act 1900 (NSW), ss 61I, 61L

Cases
- El-Hilli and Melville v R [2015] NSWCCA 146
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Mashayekhi v R [2021] NSWCA 55
- Obeid v R (No 2) [2016] NSWCCA 321