Dedeoglu v R

1. [1]

   BELLEW J: I agree with Lonergan J.

2. [2]

   LONERGAN J: On 25 March 2021 the Court heard an application for bail filed by Onur Dedeoglu.

3. [3]

   Mr Dedeoglu was convicted on 20 February 2020, after a trial by jury, of two counts of indecent assault in contravention of s 61L of the Crimes Act 1900 (NSW) and one count of sexual intercourse without consent in contravention of s 61I of the Crimes Act. The offending of which he was found guilty involved an attack by Mr Dedeoglu, an uber driver, upon a sleeping 17-year-old girl whom he had been retained to drive home.

4. [4]

   On 7 April 2020 Judge Noman SC sentenced him to an aggregate term of imprisonment of 8 years 6 months with a non-parole period of 6 years to start from the day of his arrest, 2 April 2019.

5. [5]

   On 7 April 2020, the day he was sentenced, Mr Dedeoglu filed a Notice of Intention to Appeal against conviction and sentence.

6. [6]

   He sought and obtained an extension to that Notice on 6 November 2020 to 12 February 2021. On 8 February 2021 he was granted a further extension to 12 May 2021.

7. [7]

   A document, (which appears to be a failed facsimile transmission report) tendered by Mr Dedeoglu on his application for release before this Court, on its face suggests that there may have been an attempt on his behalf on 5 May 2021 to transmit his handwritten letter dated 4 May 2021. His 4 May 2021 letter stated that because Legal Aid “will not represent him”, he has to find new representation or “do the appeal himself” and “..that’s why I need to extend my expire (sic) date for lodge appeal, which ends at 12 May 2021.”

8. [8]

   Also tendered was a letter from Legal Aid dated 20 May 2021 advising Mr Dedeoglu of the refusal of Legal Aid for his proposed appeal and that his Notice of Intention to Appeal would have expired and cannot be renewed, although the letter suggested that an appeal could still be filed.

9. [9]

   Mr Dedeoglu, in his handwritten “Additional Bail Submission” dated 14 March 2022, (not in an affidavit), asserted that he was told on 27 April 2021, (by what means is not specified), that Legal Aid would not represent him, and that a Mr Dowe of that office had said that “…he is going to extent (sic) my notice of intention to appeal time, which was going to expire on 12 May 2021”.

10. [10]

    No evidence was provided of any correspondence from the Court to the effect that an extension had been sought by Legal Aid or granted past 12 May 2021, and the effect of the Legal Aid letter of 20 May was that if the Notice of Intention to Appeal had already expired, “you can still write to the Registrar” and “if you do nothing, the Notice of Intention to Appeal will simply lapse”.

11. [11]

    On 16 June 2021 Mr Dedeoglu filed a Notice of Application for Leave to Appeal. He re-filed that application for leave to appeal with further grounds and written submissions on 29 July 2021.

12. [12]

    The release application was filed on 22 October 2021.

13. [13]

    Mr Dedeoglu’s application for leave to appeal and the appeal itself are listed for hearing on 22 July 2022.

Jurisdiction to hear and Determine a Release Application

1. [14]

   Section 48 of the Bail Act 2013 (NSW), (the Act), limits the power of courts and authorised justices to hear and determine an application for bail. Section 48(2) provides:

2. [15]

   Part 6 of the Act provides for powers to hear bail applications. Division 2 of Part 6 provides general powers to courts, from which this Court derives its general power to hear and determine applications for bail. Section 61 provides:

3. [16]

   It is obvious from the wording of the provision that the Court’s powers are enlivened only where proceedings for the offence(s) are “pending in the Court”.

4. [17]

   That term is defined in s 59 of the Act:

5. [18]

   There is a note to s 59 which refers to the definitions in s 5 of the Act which includes proceedings on an appeal against conviction or sentence is included in the definition of “proceedings for an offence”: s 5(1)(d).

6. [19]

   Sections 5, 59 and 61 of the Act must be read together with s 10 of the Criminal Appeal Act 1912 (NSW) which provides relevantly:

7. [20]

   Mr Dedeoglu’s Notice of Application for Leave to Appeal was filed outside the time limits allowed by Rule 3B of the Criminal Appeal Rules (1952 SI 2) (NSW) which provides:

8. [21]

   Mr Dedeoglu did not obtain any extension past 12 May 2021 and so he does not have proceedings “pending” before the court. The life of his future proceedings depends on, at some future time, the Court granting him leave to file his appeal out of time, if the Court is satisfied that it is appropriate to do so.

9. [22]

   That analysis will include an evaluation of the merits of the appeal: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [33]:

10. [23]

    The Crown submitted, correctly, in my view, that this is a question for the Court constituted to hear Mr Dedeoglu’s appeal as the majority comprising of Hoeben CJ at CL and Wilson J concluded in Mashayekhi v R [2021] NSWCA 55 at [18].

11. [24]

    Whilst there is some material that may allow this Court to have some preliminary thoughts on the prospects of success of the appeal, it is not appropriate to remove the decision as to whether leave should be granted, from the Court that has that task as part of its hearing of the appeal in full on its merits in July, just four months away.

12. [25]

    Accordingly the order that should be made is that the application is struck out for want of jurisdiction.

The Application for Bail

1. [26]

   Even if the Court had power to hear and determine the bail application, I would have refused the application.

2. [27]

   Section 22 of the Bail Act presents what has been described as a not insignificant hurdle: (Mashayekhi at [23]):

3. [28]

   The two stage aspect of s 22 was analysed in El-Hilli and Melville v R [2015] NSWCCA 146 at [13] by Hamill J, with the agreement of Simpson and Davies JJ, he stated:

4. [29]

   In his written submissions, Mr Dedeoglu argued that there were exceptional circumstances. First, that he has 21 grounds of appeal, four of which he argued were particularly strong, second, that he would have served “more than half his sentence” by the time of the appeal (this is a reference to the non-parole period of his sentence), third, that he needs to be on bail to prepare his appeal, fourth, that COVID-19 restrictions make custody more onerous, fifth, that he is not able to obtain the relevant material he needs for his appeal and sixth, he is not receiving adequate medical attention and necessary medication in custody and he has suffered damage to his mental health from delays to his appeal hearing.

5. [30]

   As observed in Mashayekhi regarding what the Court said in Obeid v R (No 2) [2016] NSWCCA 321 at [17]:

6. [31]

   That consideration applies here. The fact that Mr Dedeoglu will have served half his non-parole period is not a special or exceptional circumstance. Nor is the (implied) assertion that he is having difficulties preparing his appeal. As noted by the Crown, the Court (and, presumably the Crown also), has been deluged by Mr Dedeoglu with hundreds of pages of submissions and material directed to the appeal.

7. [32]

   I am not persuaded that there is any special or exceptional circumstance established that would justify a grant of bail, and so there is no need to proceed to the second stage contemplated by s 22 of the Act.

8. [33]

   The application struck out for want of jurisdiction.

9. [34]

   IERACE J: I agree with Lonergan J.