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Court of Criminal Appeal 9 June 2023

Dedeoglu v R

[2023] NSWCCA 126

Sexual offences
CRIME APPEALS APPEALS WHERE ERISP ALLEGEDLY WRONGLY ADMITTED WHERE NON WHERE FAILURE TO CALL WITNESSES ALLEGED

Citation: Dedeoglu v R [2023] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 9 June 2023
Judges: Harrison J, Fagan J, Yehia J

Background

The appellant was an Uber driver convicted by a jury of two counts of sexual assault without consent (one involving digital penetration) and one count of sexual touching without consent, contrary to ss 61I and 61L of the Crimes Act 1900 (NSW). The offences occurred in the early hours of 26 August 2018 at Bondi Beach. The complainant, a 17-year-old Year 12 student, had been asleep in the back seat of the appellant's vehicle when the offences were committed.

The Crown's case was that the appellant had driven past the complainant's home without dropping her off, parked at Bondi Beach, and sexually assaulted her while she was asleep. Shortly after leaving the vehicle, the complainant sent a distressed message to a friend describing what had happened. The appellant did not deny that a sexual encounter occurred but claimed the complainant had initiated it.

Following conviction, the appellant was sentenced to an aggregate term of 8 years and 6 months imprisonment with a non-parole period of 6 years. Unrepresented on appeal, he raised more than 35 discrete grounds challenging both the conviction and the sentence.

  • Whether various categories of evidence were wrongly admitted at trial, including ERISP records, DNA evidence, phone records, screenshot evidence, and statements by the officer in charge
  • Whether the Crown failed to disclose all trial materials to the appellant
  • Whether the trial judge gave misleading or erroneous directions to the jury, including on consent, consciousness, non-responsive answers, and the elements of the offences
  • Whether defence counsel's failure to put the appellant's account (that the complainant had initiated the encounter) to the complainant in cross-examination constituted incompetent representation amounting to a miscarriage of justice
  • Whether the trial judge's direction to the jury regarding that failure (arising from the rule in Browne v Dunn) itself caused a miscarriage of justice
  • Whether the conviction was unsafe and unsatisfactory
  • Whether the sentence was manifestly excessive

Decision

Conviction appeal (majority: Fagan J and Yehia J): The court dismissed all grounds concerning evidentiary admissibility, the trial judge's directions, alleged prosecutorial failures, and the safety of the verdict. While some aspects of the trial gave cause for misgivings, none rose to the level of a miscarriage of justice. The majority found that the complainant's account was remarkably consistent and inherently believable, and that failing to put the appellant's alternative explanation to the complainant in cross-examination served no forensic purpose and added nothing to the defence case. On that basis, no miscarriage of justice arose from counsel's omission.

Ground 16: Counsel incompetence and the Browne v Dunn direction (divided court): The majority (Fagan J, Yehia J agreeing) held that even if the failure to put the proposition constituted an error, the strength of the complainant's evidence and the weakness of the appellant's case meant the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) would be applied. Yehia J added that trial judges should be very cautious about directing juries on defence counsel's failure to put a proposition, particularly where that failure may be inadvertent or an exercise in forensic judgment, and that an accused should not bear the burden of negative inferences flowing from counsel's errors. Harrison J dissented, finding that the failure to put the only available counterfactual for the complaint, compounded by the trial judge's Browne v Dunn direction, deprived the appellant of a fairly open chance of acquittal and that the proviso should not have been applied.

Sentence appeal (majority: Harrison J and Yehia J): The majority found the sentence manifestly excessive when weighed against the spectrum of conduct capable of constituting the same offences and taking into account the appellant's prior lack of convictions, without diminishing the impact of the offending on the complainant. Fagan J dissented, finding the sentence was not manifestly excessive. The majority allowed the sentence appeal.

Orders Made

The orders made by Harrison J (with which Yehia J agreed in relation to sentence, and the majority agreed in relation to conviction) were as follows:

  • Leave to appeal granted against both conviction and sentence
  • Appeal against conviction dismissed
  • Sentence appeal allowed (with Harrison J proposing revised sentencing orders at [205])

Note: The orders section extracted from the judgment records only the dismissal of both appeals, which appears to reflect Harrison J's initial proposed orders before the sentence appeal was allowed by the majority. Readers should consult the full judgment for the precise final orders on sentence.

Key Takeaways

  • The rule in Browne v Dunn applies with particular caution in criminal trials: Yehia J observed that trial judges should be slow to direct juries adversely on the basis of defence counsel's failure to put a proposition, especially where that failure may be inadvertent or a matter of forensic judgment rather than a deliberate omission inconsistent with the accused's own evidence.
  • An accused's entitlement to a fair trial is not automatically undermined by counsel's failure to cross-examine on a particular theory, particularly where the complainant's evidence is inherently consistent and the proposed alternative lacks forensic utility.
  • Where a miscarriage of justice is nonetheless established, the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) may still be applied if the court is satisfied the failure did not deprive the accused of a substantial chance of acquittal, assessed by reference to the overall strength of the Crown case.
  • In dismissing the conviction appeal, the court confirmed that isolated trial irregularities, even when numerous, do not individually or cumulatively constitute a miscarriage of justice where the evidence against the accused is strong and cogent.
  • Manifest excess in sentencing requires comparison against the range of conduct captured by the same offence: the majority found the aggregate sentence disproportionate once the appellant's clean record and the relative position of the conduct on the seriousness spectrum were properly weighed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61I, 61L
- Criminal Appeal Act 1912 (NSW) s 6
- Evidence Act 1995 (NSW) ss 33, 66, 89, 89A, 90, 104
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases:
- Browne v Dunn (1893) 6 R 67
- Hofer v R (2021) 395 ALR 1; [2021] HCA 36
- Nudd v The Queen [2006] HCA 9
- MWJ v R (2005) 222 ALR 436; [2005] HCA 74
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
- R v Birks (1990) 19 NSWLR 677
- R v Manunta (1989) 54 SASR 17
- R v Miletic [1997] 1 VR 593
- R v MAP [2006] QCA 220
- R v Coswello [2009] VSCA 300
- Davies and Cody v The King (1937) 57 CLR 170; [1937] HCA 27
- Agresti v The Queen (2017) 13 ACTLR 1; [2017] ACTCA 20
- Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183
- JW v R [2022] NSWCCA 206
- Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83
- Dogan v R [2020] NSWCCA