Dedeoglu v R

1. [1]

   HARRISON J: Onur Dedeoglu was tried at the Sydney District Court before Noman SC DCJ and a jury on an indictment that contained 3 counts, as follows:

2. [2]

   The trial commenced on 11 February 2020. The jury returned verdicts of guilty on all counts on 20 February 2020. Counts 1 and 3 are offences contrary to s 61L of the Crimes Act 1900 and carry a maximum penalty of 5 years imprisonment. Count 2 is an offence contrary to s 61I of the Crimes Act and carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.

3. [3]

   On 7 April 2020, her Honour imposed an aggregate sentence on Mr Dedeoglu of 8 years and 6 months with an aggregate non-parole period of 6 years. Her Honour nominated the following indicative sentences:

4. [4]

   Her Honour took account of 371 days of pre-sentence custody and ordered the sentence to commence on 2 April 2019. The first day on which Mr Dedeoglu will become eligible for release on parole is 1 April 2025.

Grounds of appeal

1. [5]

   Mr Dedeoglu appeared in this Court without legal representation or other assistance. By his notice of appeal, he proposes 21 grounds of appeal against his convictions (several of which include sub-grounds) and a single ground in relation to his sentence. These are dealt with below.

The Crown case

1. [6]

   The Crown case was as follows.

2. [7]

   In August 2018, the complainant was a Year 12 student living with her sister (MT) and her parents in Brighton Boulevard, North Bondi.

3. [8]

   On the evening of 25 August 2018, the complainant attended the 18th birthday party of her friend EF at that friend's home in Bondi Junction. Her recollection was that she arrived at the party at "around 7pm". The complainant said that while at the party she drank about six glasses of homemade alcoholic punch.

4. [9]

   She left the party with EF and two other friends in an Uber at about 9.30pm and travelled to the Star Bar, which was located on George Street in Sydney's central business district. While there, the complainant said she was dancing on the dance floor most of the time and did not "have any drinks". CCTV footage from the Star Bar depicted the "front door entrance and the dance floor". Constable Keremelevski, the officer in charge of the investigation, gave evidence that footage of the dance floor was functional but "very unclear and there was a huge number of people within that dance floor, and it was impossible to find any person, particularly (the complainant) and her friends". He said the video file from the front door was "corrupted" and explained that the "file size was at zero kilobytes". No CCTV footage from the Star Bar was played to the jury.

5. [10]

   The complainant said that after leaving the Star Bar, she went with a group of about 10 to 15 school friends to a nearby McDonald’s restaurant. She said that while there she purchased some food and then left. Before doing so she spoke to a male friend, HW. She said that HW had ordered an Uber and asked if she and another male friend, AS, wanted to share the ride as their homes were close to each other. CCTV footage of events at McDonald’s was tendered in the Crown case during the complainant's evidence and became Exhibit I. She identified herself and a number of her friends and the clothes she was wearing and confirmed that at one point the footage depicted her having "stumbled over [her] feet for a second". Constable Keremelevski subsequently confirmed that the relevant footage had been played.

6. [11]

   As at 25 August 2018, Mr Dedeoglu was an Uber driver. It was not in dispute that it was Mr Dedeoglu who accepted HW's request for a car. The complainant recalled that she, HW and AS were picked up by Mr Dedeoglu at a designated location within a couple of minutes' walk from McDonald’s. She said that "at this point, I was definitely feeling quite tired, probably from the effects of alcohol".

7. [12]

   The complainant could not recall much being said in the car and fell asleep during the journey. She said that AS got out first, and HW after that, but could not recall saying goodbye to them. She did not recall speaking to the driver or making any observations of him during the journey. When she woke up, it was dark, and the car was facing the beach.

8. [13]

   Satellite navigation data obtained from Uber and footage from a motion-activated CCTV camera installed on a neighbour's home, recorded Mr Dedeoglu’s vehicle arriving outside the complainant's home in Brighton Boulevard just after 1.30am on 26 August 2018. The CCTV footage depicted some of the vehicle's movements in the minutes immediately afterwards. It was not in dispute at trial that at 1:32am Mr Dedeoglu switched off the satellite navigation device while still outside the complainant’s home and switched it back on at 1:50am when the vehicle was at the beach.

9. [14]

   The complainant's cross-examination included questioning about events outside her home and prior to arrival at the beach. That questioning included the suggestion that she had been awake and conversed with Mr Dedeoglu after he had arrived outside her home. It was put to her that she had said to Mr Dedeoglu from the backseat, amongst other things, that she did not want to go home, that she enquired about attending his home and asked if there was a possibility that she could do something with him in the car. The complainant's responses to each of those propositions, as well as a number of others about events in the car outside her home and before she said she woke up, was "I don't remember that" or "I don't agree with that" (or similar). Towards the end of that part of her cross-examination, her Honour asked the following question:

10. [15]

    Mr Dedeoglu gave detailed accounts about his interactions with the complainant while outside her home both in an ERISP on 27 August 2018 and in evidence during the trial.

11. [16]

    The complainant said that upon waking "she felt someone kissing me, and with their hands down my pants, in and - on and inside my vagina.” She said she quickly realised it was the Uber driver (i.e. Mr Dedeoglu) as there was no-one in the front seat and the car was not parked at her house but rather a parking spot between the North Bondi RSL and the North Bondi Surf Club. When later asked to describe how the person's hand was inside her pants and around her vagina, the complainant responded, "It wasn't - it was just - it was quite uncomfortable. It wasn't painful. I was uncomfortable and - yeah."

12. [17]

    The complainant's description of the alleged assaults included the following:

13. [18]

    The complainant's evidence was that after she realised what was happening, she "kind of resisted”, and Mr Dedeoglu said in a foreign accent "it's okay, it's okay". She recalled pushing him away but didn't remember saying anything back. She said, "I went to open the door and it was fine. I got up and I remember my jeans were undone, so when I got out of the car, I had to re-button them and zip them up. And yeah, then I quickly walked home.” When asked to estimate the time between waking and getting out of the car the complainant replied "[i]t could have been maybe up to a minute, because I mean, once I kind of realised, I kind of froze for a second to take a sec of what was happening. And then yeah. I - as soon as I could, I got out”.

14. [19]

    While walking home, the complainant contacted a friend, SO, using Snapchat. She said that SO was a friend that she had met up with after arriving at the Star Bar. The complainant said she sent a "Snapchat” to SO with a caption saying something like “I've been taken advantage of"'.

15. [20]

    SO was called as a witness by the Crown. She said she had received the Snapchat message from the complainant at about 1.50am. SO said she had taken the screenshot because "Snapchat lasts only ten seconds, so just - a screenshot is the only means of keeping it”. SO said that by the time she received the Snapchat message she had returned home. Three other friends, who had also been at the Star Bar earlier in the evening (MS, IZ, SS), were staying at her house and had returned with her. As to the content and format of the Snapchat communication she received from the complainant, SO also said:

16. [21]

    Both the complainant and SO gave evidence of a phone conversation they had shortly after the Snapchat message had been sent. Exhibit B and the complainant's phone records established that SO had called the complainant at 1.52am. SO's evidence of the call included that the complainant "was still crying and upset”, that "she was just, kind of, blurting out what had happened" and that "he's kissing me and my pants were undone". The complainant's evidence included:

17. [22]

    A number of written messages exchanged between the complainant and SO on their phones (from around the time of initial Snapchat message and then later in the day on 26 August 2018) became Exhibit B.

18. [23]

    lZ and MS were also called as witnesses by the Crown. Both gave evidence of what they recalled of the communication between SO and the complainant during the early morning hours of 26 August 2018 while they were at SO's home. IZ said SO "started to receive Shapchats" from the complainant. As to the content of the Snapchats, IZ said, "I don't really recall what they said or anything". IZ said that the Snapchats were followed by a phone call between SO and the complainant.

19. [24]

    The balance of IZ's evidence-in-chief as to communication by the complainant to SO was as follows:

20. [25]

    MS's evidence was that "there was Snapchat. [The complainant] sent (SO) Snapchat”. When asked if she had seen the Snapchat, MS said, "No. I didn't see it". Her evidence continued:

21. [26]

    Other than confirming that a statement she gave to police on 7 February 2020 was completed by reference to diary entries made in September 2018, MS was not cross-examined about the complainant's communication with SO after the alleged incident.

22. [27]

    During the investigation police attempted, with some success, to obtain other CCTV footage that may have depicted relevant events. Ultimately the only additional footage played in evidence was from the North Bondi RSL club. That footage depicted the complainant walking past the front door of the club. Still images from the footage were tendered without objection.

23. [28]

    The complainant said that when she arrived home she was too scared to tell her mum (JJ) about the incident. The complainant said she went to bed and fell asleep.

24. [29]

    The complainant said she woke around 7:00 - 8:00am. She contacted SO, who asked how she was and again suggested that she tell her mother or sister about the alleged incident. At the breakfast table the complainant's mother asked, "what was wrong last night" but the complainant again said "nothing" and that it was just "boy problems".

25. [30]

    The complainant said that later, after her parents had left the house, she sent a text message to her sister (MT) asking her to come to her bedroom. The complainant said the family had guests staying who she did not want to talk in front of. The complainant said she was crying when her sister arrived. She said her sister asked, "what's wrong?” and the complainant told her, "Last night in the Uber... I woke up - I was asleep and I woke up, and the Uber driver was all over me. And he was, you know, kissing and touching and finger into my vagina and stuff." They then both cried, and her sister hugged and comforted her. Her sister told her to tell their mother.

26. [31]

    MT was called as a Crown witness. Her account of events after entering the complainant's bedroom included the complainant telling her of the incident in the Uber. MT recalled the complainant saying, "I just woke up and I remember he was kissing me and his hands were in my pants...". MT said that the complainant also described having been out, splitting an Uber with HW and someone else, that the incident took place after the boys had got out of the car, although she did not remember them doing so, but the next thing she remembered was waking up and thinking, "Why is [HW] kissing me?" MT said that the complainant described hearing a voice with an accent, saying, "It's okay, it's okay." MT said the complainant described someone kissing her and that person had his hands in her pants. MT said the complainant told her she got out of the Uber, did up her pants and called SO. MT said she was not sure of what the complainant had told her about that exactly.

27. [32]

    The complainant and MT both described MT leaving the house but agreeing to be present for support when the complainant told their mother. The complainant said she then telephoned another school friend, RD and told her, "[l]ast night when the boys got out of the Uber, the Uber driver was, you know, kissing and touching me." RD told her to tell her mother about it.

28. [33]

    It had been arranged that several students from the complainant's school would go out together for lunch. The complainant attended the lunch, because she wanted to get out of the house to take her mind off what had happened. At the lunch the matter was not discussed because other people were there who did not know about it. During the journey from the lunch, the complainant was in the car with RD, SO, SG and SS (school friends). SS was one of the friends staying with SO the previous night. They discussed what had taken place with the complainant and Mr Dedeoglu. The complainant's friend told her to tell her mother about the incident.

29. [34]

    The complainant arrived home at 4pm. Her mother was cooking dinner. The complainant told her about the incident and the conversation lasted for approximately 30 minutes. She cannot recall the exact details of the conversation but recalls that she described what had occurred.

30. [35]

    The complainant's mother was adamant that the complainant report the matter to police, but the complainant felt scared. The complainant then reported the matter to police, and after doing so, at approximately 9pm, attended Royal Prince Alfred Hospital where she saw a doctor at the "sexual assault service."

31. [36]

    The complainant's mother (JJ) also gave evidence of conversations she had with her daughter on 26 August 2018. In summary, JJs evidence was that the complainant described waking up in the backseat of the Uber with Mr Dedeoglu kissing her and with his hands down her pants. JJ also gave evidence that the complainant told her she heard the driver say, 'It's okay, it's okay” in a foreign accent and that she pushed him away and got out of the car.

32. [37]

    The complainant attended the Royal Prince Alfred Sexual Assault Service on the evening of 26 August 2018. While there, Dr Natalie Woods took swabs from the complainant's external labia, vulva and lower vaginal canal. The complainant declined a full physical examination, telling Dr Woods that she had no post assault symptoms and no physical injuries. A sexual assault counsellor was also present.

Mr Dedeoglu’s response to the Crown case

1. [38]

   Mr Dedeoglu did not dispute that he had had sexual contact with the complainant in the backseat of his Uber vehicle while it was parked at Bondi Beach between about 1.40am and 1.50am on 26 August 2018. His case was that the sexual interactions were consensual and instigated by the complainant.

2. [39]

   Mr Dedeoglu gave an account of relevant events in an ERISP with the police on 27 August 2018. That ERISP was admitted over objection together with the transcript. He also gave evidence at the trial before the jury in terms broadly consistent with his account in his police interview. Consistently with the matters put to the complainant during her cross-examination about the events outside her home, Mr Dedeoglu’s account included a conversation with her after arriving in Brighton Boulevard, which included her saying that she did not want to go home, asking if she could go to his home and whether there was any possibility that she could do something with him in the car.

Ground 1: ERISP interview should have been excluded.

1. [40]

   This ground was a general contention to which Mr Dedeoglu directed more detailed submissions under the following grounds, which may conveniently be considered as sub-grounds of his general contention that the ERISP should have been excluded.

Ground 1G: I am disagree with her Honour’s conclusions in the Principal Judgment for “The ERISP interview is not excluded”.

1. [41]

   Mr Dedeoglu was interviewed on 27 August 2018 at Liverpool Police Station. The interview commenced at 7.26pm and concluded at approximately 9.20pm. It was conducted with the aid of a Turkish interpreter. He was asked the standard series of questions at the conclusion of the interview. He agreed that he had made the record of interview of his own free will and that no threat or promise had been held out to him to give the answers he gave. The question directed to whether he had any complaints about the manner in which he was interviewed does not have a recorded answer.

2. [42]

   The ERISP was admitted over objection following a voir dire conducted between 11 and 13 February 2020. Her Honour admitted the ERISP in a judgment published on 13 February 2020. Her Honour addressed the same contentions about why the ERISP ought to have been excluded as those that Mr Dedeoglu now wishes to rely upon in support of this ground.

3. [43]

   A significant aspect of this ground is a complaint that Mr Dedeoglu was not able to understand what was occurring as the interpreter failed properly to communicate with him adequately or to interpret or translate correctly. The general complaint appears to be a challenge to the availability of the several factual findings made by her Honour. Given the apparent significance of these factual findings, the Crown in this Court provided a summary of the not inconsiderable evidence adduced on the voir dire. In these circumstances, the Crown drew attention to the existence of some uncertainty with respect to the standard of appellate review applicable to evidentiary rulings of the type raised in JW v R [2022] NSWCCA 206.

4. [44]

   In Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183, Beech-Jones CJ at CL at [38] considered the issue as it might apply to s 90 of the Evidence Act 1995:

5. [45]

   The issue was discussed in JW v R with respect to s 138 of the Evidence Act at [68]-[69] as follows:

6. [46]

   In my view, none of Mr Dedeoglu’s complaints concerning the reception of his ERISP is significant. Put another way, I consider, in the events that occurred and having regard to the way in which Mr Dedeoglu responded to the Crown case, that the reception of his interview with the police was advantageous to him, and not otherwise.

7. [47]

   Mr Dedeoglu accepted that he had performed the physical acts that formed the basis of the charges against him. His interview shows that he consistently maintained that he did so with the complainant’s consent. He did not attempt during his evidence at trial to distance himself from any part of the account that he gave to the police and embraced the version that it contained. His consistency in that respect could not have been anything but favourable to him.

8. [48]

   The objections that he now seeks to take to the reception of his ERISP are therefore only explicable upon the basis that, as a (now) self-represented applicant in this Court, he is determined not to let any possible argument in his favour go unexplored. As will be apparent, one of his major complaints is that English is not his first language and that, even with the assistance of an interpreter, about whose performance on his behalf he also complains, he was placed at a considerable disadvantage.

9. [49]

   Although it was not available at the hearing of his appeal in this Court, Mr Dedeoglu’s wife wrote to the Registrar in terms that raised her husband’s difficulties with English as a matter of concern. That email was as follows:

10. [50]

    I consider that, both in dealing with Ground 1 in particular and as an observation of the way in which Mr Dedeoglu conducted his appeal in general, it was my impression that his command of English was particularly impressive. Mr Dedeoglu addressed this Court without resorting to the interpreter who was present. Moreover, Mr Dedeoglu’s written submissions, which extend to several hundred pages of handwritten material, bespeak an impressive command of the language. I would find it extremely difficult to support a contention that Mr Dedeoglu was disadvantaged during his interview with the police for any of the reasons that he has given. On the contrary, the reception of his ERISP into evidence has provided a contemporaneous version of events that was repeated in his oral evidence at trial.

11. [51]

    Her Honour’s decision to admit the record of interview cannot in my view be faulted. It is unnecessary for present purposes to resolve the issue of whether her decision should be assessed by reference to House v The King or the test of correctness.

Ground 2C: Because the complainant’s clothes had been put into ‘pillow case’ and kept into pillow case for 14 days before DNA samples from them, the DNA evidence shouldn’t have been admissible as there were likely happened cross-contamination.

1. [52]

   These grounds may also be considered together.

2. [53]

   Mr Dedeoglu’s contention that inaccurate DNA evidence was admitted at the trial is correct: evidence was led that inaccurately attributed the results of the testing of the sample taken from the zipper of the complainant’s jacket to results of the sample taken from the area of the zipper of the jeans she was wearing. There was, therefore, no evidence that Mr Dedeoglu’s DNA was located on the zipper of the complainant’s jeans.

3. [54]

   Ultimately, by agreement, the DNA evidence was led through PCSC Keremelevski as follows:

4. [55]

   The Crown now contends, and I accept, that the original error did not result in a miscarriage of justice. As the Crown’s submissions correctly identify, the issue at trial was consent. Mr Dedeoglu’s case was that he had been physically intimate with the complainant on the back seat of his vehicle. He did not dispute that he had kissed the complainant’s face and chest and that he had inserted his finger into her vagina. It would in these circumstances have been unsurprising that Mr Dedeoglu’s DNA was found on the complainant’s clothes, including the zipper of her jeans.

5. [56]

   Moreover, nothing about any specific DNA results assumed significance in the context of the limited factual dispute about what occurred in the car. Mr Dedeoglu’s account was that he had made an unsuccessful attempt to undo the complainant’s jeans. For example, his account in his ERISP included the following:

6. [57]

   Mr Dedeoglu gave evidence at his trial. His evidence-in-chief included the following account:

7. [58]

   Given that Mr Dedeoglu did not dispute the fact that he touched the complainant’s jeans in an attempt to open them, the inaccurate description of the DNA result could not in my view have given rise to a miscarriage of justice. The observations of Beech-Jones CJ at CL in Zhou v R [2021] NSWCCA 278 at [22] are apposite:

8. [59]

   The error did not figure in either party’s respective closing submissions or in her Honour’s summing up. So much is unremarkable. It would have been otherwise if the trial involved a fiercely contested factual dispute about whether or not Mr Dedeoglu had touched the complainant’s clothing at all or where it was alleged he did so. These things were not in issue at trial in this case.

9. [60]

   Finally, and perhaps most significantly, counsel for Mr Dedeoglu addressed the jury in final submissions in terms that included the following:

10. [61]

    These grounds of appeal are without merit.

Ground 3: The complainant’s mobile operator (OPTUS) record contradicts to the Crown case. That record also contradicts the complainant’s and number of witness’ evidence.

1. [62]

   Mr Dedeoglu contends that the complainant’s Optus mobile phone records contradict aspects of her account, including that she attended a birthday party at Bondi Junction prior to going to the “Star Bar” in the city. These records were subpoenaed but were not tendered at the trial. Mr Dedeoglu appears to contend in this Court that the phone records are relevant to alleged non-disclosure of relevant material. In such circumstances, there could only be a miscarriage of justice if Mr Dedeoglu were able to establish that the phone records, in the context of all of the other evidence in the trial, could support a conclusion that he was innocent or that his conviction was not established beyond reasonable doubt. Mr Dedeoglu also complains that the phone records were only made available to him on the third day of the trial by which time the complainant’s evidence had been completed as well as the fact that the late production prejudiced his ability to deal with later witnesses.

2. [63]

   It would be possible to understand how this ground could demonstrate the existence of a fundamental unfairness if it could be shown how the phone records related to a significant issue in the trial. Several witnesses gave evidence of receiving text messages from and sending text messages to the complainant, as well as having telephone conversations with her. Mr Dedeoglu does not suggest that the records that are now available contain material that casts doubt upon any matter of significance in the trial. For example, Mr Dedeoglu submits that the complainant’s account of where she had been before the incident that gives rise to these proceedings is possibly in doubt. However, except to the extent that this may have informed her credibility or reliability on some tangential issues, it does not appear to have any bearing upon the principal issue of consent upon which the case was fought. I am unable to discern any way in which the absence of the phone records could give rise to a miscarriage of justice.

3. [64]

   This ground is without merit.

Ground 4: Screenshot evidences should not been admissible.

1. [65]

   Mr Dedeoglu contends that despite requests made to his legal representatives asking them to object to the admissibility of “selfie photo of complainant, text messages and chat conversations” in the form of screenshots from the complainant’s phone and the phones of other witnesses, no such objection was taken. The burden of the submission is necessarily that the objection, if taken, would have been upheld and that the material would have been excluded.

2. [66]

   Mr Dedeoglu’s submissions document a series of correspondence between him and his legal representatives concerning the question of whether all of the screenshots from the complainant’s phone had been provided to him. However, the question of the completeness of the disclosure does not inform the question of whether the selfie that was tendered was objectionable or not. In the events that occurred, no objection was taken to the tender. Mr Dedeoglu does not indicate how in the circumstances the tender of the screenshot of the complainant’s face was admitted into evidence when it should have been rejected.

Ground 4A: There is no(t) any proof that conversations, test [sic] messages and photo made in said time between said people.

1. [67]

   Mr Dedeoglu’s submission was in the following terms:

2. [68]

   However, as the Crown’s submissions make clear, evidence in respect of each matter complained of was adduced from the persons who sent or received the messages and images or who were involved in the relevant conversations. Moreover, those persons were not challenged concerning either the fact of the communications or their content.

Ground 4B: Some of those screenshots haven’t given to us, before the trial by DPP.

1. [69]

   Mr Dedeoglu relies upon the statement of Senior Constable Sarah Fleming in which she describes the existence of 25 screenshots. Mr Dedeoglu was only provided with 21 screenshots. He now maintains that he should have been given four further screenshots.

2. [70]

   Mr Dedeoglu refers to considerable emails raising concerns about the “discrepancy” between the number of screenshots referred to by Senior Constable Fleming and the number served on the defence. The issue was taken up at some length in correspondence between Mr Dedeoglu’s legal representatives and the DPP at the time. The DPP advised that the “discrepancy” was simply a mistake. No issue about the correctness of that advice was pursued in cross-examination of the OIC or at all. Mr Dedeoglu has not identified anything in the trial record that suggests that other relevant material exists.

3. [71]

   The Crown submitted, and I accept, that Mr Dedeoglu has not demonstrated that there exists other screenshots that have not been disclosed to him, as opposed to the correctness of the explanation that the reference to 25 screenshots was simply an error. Nor has he demonstrated how it is now suggested that the alleged non-disclosure gave rise to a miscarriage of justice.

Ground 4C: The Crown has edited on screenshot unfairly and other screenshot submitted differently to jury.

1. [72]

   This ground asserts that the Crown manipulated or deleted the content of the text messages before they were tendered in evidence. Mr Dedeoglu relies on differences between the records of the messages provided to him and his legal representatives and those tendered in evidence.

2. [73]

   Exhibit G was an edited schedule of messages between the complainant and her sister MT. The edited portion removed from the original document was as follows:

3. [74]

   Mr Dedeoglu maintains that the Crown deliberately removed the above material from the tender in order to make it appear that the complainant was distressed, and that the removed material was “calm and usual”.

4. [75]

   The Crown’s submission on this issue in this Court was as follows:

5. [76]

   I am unable to accept that this sub-ground has any merit.

6. [77]

   Exhibit B was a schedule of messages between the complainant and SO, a conversation obtained from the complainant’s phone. Mr Dedeoglu wishes to compare that material with a version of the same conversation taken from SO’s phone. Mr Dedeoglu contends that there is a difference in the order of the comments taken from the conversation obtained from the complainant’s phone and the same conversation obtained from SO’s phone.

7. [78]

   The Crown’s submission on this issue in this Court was as follows:

8. [79]

   I am not satisfied that this sub-ground has any merit at all.

Ground 4D: Those screenshots have irrelevant and hearsay content.

1. [80]

   Mr Dedeoglu maintains that, apart from the preceding issues, the screenshots “have irrelevant and hearsay content”. Mr Dedeoglu refers to Exhibit A, the screenshot of the complainant’s Snapchat selfie with the caption “I feel like I’ve been taken advantage of” and the complainant’s text message to her mother “I’m on my way home” that was sent contemporaneously with her entry into Mr Dedeoglu’s Uber at 1.08am.

2. [81]

   I do not agree that this ground has merit. Neither document was irrelevant. No objection was taken to the tender. “Not admissible” means “not admissible over objection”: see Dogan v R [2020] NSWCCA 151 at [19] per Fagan J. The text message was on any view relevant to the assessment of the complainant’s state of mind at the time of the alleged offences. As the Crown submitted, it was at least arguably inconsistent with any contemplation by the complainant of having consensual sexual activity with Mr Dedeoglu. Even accepting that the text message representation was hearsay, the complainant was called to give evidence in the trial: s 66(2) Evidence Act 1995.

Ground 4E: Exhibit A screenshot of Snapshot of the complainant’s selfie should not been admissible as edited and added ‘sad’ filter in Snapchat App.

1. [82]

   Mr Dedeoglu contends that the screenshot of the Snapchat selfie Exhibit A “should not [have] been admissible” because it was edited by the application of a “sad” filter. The question of the extent to which the complainant was upset or distressed following her sexual encounter with Mr Dedeoglu was a factual issue in the trial.

2. [83]

   In his final address to the jury, the Crown said this:

3. [84]

   The nature and extent of the complainant’s distressed state also figured in her Honour’s summing up, as appears from the following extracts:

4. [85]

   The burden of Mr Dedeoglu’s submission is that Exhibit A had the potential, if it were altered by the use of a particular application, to give a misleading impression of the true state of the complainant’s distress. I infer that Mr Dedeoglu asserts that he did not become aware of this possibility until after the trial concluded.

5. [86]

   The difficulty for present purposes is that there is no evidence that Exhibit A was altered before transmission to SO by use of some filter or other application so as to produce the misleading impression that Mr Dedeoglu asserts that it gives. It was never suggested to the complainant during cross-examination that she had somehow altered or edited the image. Even if such evidence were available, the impact of the alteration would in the circumstances be de minimis, as the evidence of the complainant’s emotional state is arguably evident on the Crown case by reference to other material independently of Exhibit A. I am not satisfied that Mr Dedeoglu has been subjected to any miscarriage of justice in the circumstances.

Ground 5: Dispute of the court order, I haven’t provided with all trial materials by the DPP. That situation unfairly affected my defence.

1. [87]

   This ground was addressed by reference to the following sub-grounds.

Ground 5A: The Doctor’s SAIK notes haven’t given to me entirely by the DPP

1. [88]

   The Crown submissions emphasise that no complaint was made during the trial by defence counsel with respect to some asserted inadequacy of disclosure concerning the SAIK notes. That is particularly unsurprising having regard to the fact that the only significant issue in the trial was consent. As the Crown submissions also emphasise, there is nothing in the trial record that otherwise suggests prejudice to Mr Dedeoglu arising from the asserted incompleteness of the SAIK notes or that what was disclosed in fact incomplete.

Ground 5B: Forensic video recorded haven’t given to me

1. [89]

   Mr Dedeoglu complains that he was not provided with a video recording of the forensic examination conducted upon him. He maintains that he told Detective Murphy during this forensic procedure that Detective Murphy should also “take sample from her…because she also kissed my neck”. Mr Dedeoglu says that Detective Murphy’s response gave rise to a belief that the recording of the procedure would have established that this exchange took place and thereby support his claim that the investigation was inadequate.

2. [90]

   The Crown submitted in this Court that it was open to Mr Dedeoglu at trial to put the terms of this conversation to Detective Murphy, whether or not it had been recorded. No questions were asked.

3. [91]

   Once again, the issue is whether there was a miscarriage of justice in circumstances where the issue at trial was consent. On Mr Dedeoglu’s own account, he was in close contact with the complainant in the back seat of the vehicle for some minutes. In such circumstances, the presence of the complainant’s DNA on either his neck or his clothes would have been unremarkable and would have provided little, if any, corroboration for his claim that the complainant had kissed his neck during a consensual episode of intimacy.

Ground 5C: Some of the CCTV footages haven’t given to me and the other ones haven’t given entirely.

1. [92]

   Mr Dedeoglu complains that he was not provided with CCTV footage obtained by the Crown from four locations. These are dealt with in turn.

2. [93]

   The complainant attended the Star Bar with her companions earlier on the night in question. CCTV footage taken from that establishment depicts the front entrance door and the dance floor. Constable Keremelevski explained that the footage from the dance floor was “very unclear and there were a huge number of people within the dance floor, and it was impossible to find any person, particularly [the complainant] and her friends”. The CCTV from the front door was said to be corrupted. No CCTV footage from this establishment was played to the jury.

3. [94]

   Counsel for Mr Dedeoglu at trial did not challenge the officer’s summary of the dance floor footage. A number of witnesses, including SO, IZ and MS gave evidence of their observations of the complainant while at the Star Bar. Mr Dedeoglu does not identify any alleged unfairness that is said to arise from his lack of access to any of this CCTV footage, apart from an implied complaint that his legal representatives could or should have acted more quickly to ensure that the material was played to the jury.

4. [95]

   Mr Dedeoglu complains that he has not been provided with all of the CCTV footage relating to this location and that all of the footage was not played to the jury. This is said to be important from his perspective inasmuch as he said that he moved from a position outside the complainant’s house to another location in order to have a consensual sexual encounter with her and not contrary to her wishes. Paragraph 314 of his written submissions is in these terms:

5. [96]

   It can be accepted for the purposes of this argument that Mr Dedeoglu perceived an advantage in a continuous and uninterrupted video depiction of the events at this location. The issue is whether the footage that was shown to the jury is all of the available material and whether the Crown explanation for its content is adequate and acceptable.

6. [97]

   The Crown submitted that analysis of the evidence establishes that no footage was withheld and that all the relevant footage was played. The Crown submitted as follows.

7. [98]

   The evidence about the completeness of the footage was clear. The officer-in-charge said that he identified relevant footage but that it was in “small snippets” rather than a continuous reel because the camera was activated by motion. Constable Keremelevski identified three snippets from the camera at this location that were “relevant”. Each was played and became Exhibit P. Constable Keremelevski was not challenged on that evidence. The Crown submitted that there was therefore no basis to accept Mr Dedeoglu’s assertion that the Crown did not “play that part of the video since I arrived there”. There was correspondingly no basis to question the failure to call the person from whom the police obtained the footage.

8. [99]

   Mr Dedeoglu also contended that the Crown unfairly exploited an inaccuracy in the timestamp on the footage to misrepresent the evidence of events outside the complainant’s house. Constable Keremelevski gave evidence that the time stamp was 56 minutes fast. Mr Dedeoglu’s submissions express the view that “these CCTV footages were 60 minutes ahead”, indicating that any discrepancy would not appear to be material.

9. [100]

   The limitations of this CCTV material would have been obvious and apparent to Mr Dedeoglu and his legal representatives at the trial. Any reliance upon it by the Crown would accordingly have been subject to those limitations. It is not possible to see how in those circumstances any miscarriage of justice could have been occasioned.

10. [101]

    Mr Dedeoglu does not complain that the CCTV footage from these sources is incomplete but instead says that he did not give instructions to agree to its tender. The tender of this material was not the subject of challenge at the trial. The footage in any event does no more than corroborate the time at which the complainant returned from the area of North Bondi beach to her home in Brighton Boulevard and is accordingly uncontroversial.

11. [102]

    Mr Dedeoglu describes in his written submissions what he perceives the complainant to have done as depicted in CCTV footage taken from a McDonald’s restaurant earlier on the evening when the complainant was there. That CCTV footage became Exhibit I. Mr Dedeoglu complains that the whole of the footage was not played at the trial, and that some eight minutes was cut off. The edited portions depict precisely what Mr Dedeoglu has described in his submissions. That footage shows that, on Mr Dedeoglu’s submission, the complainant was awake, conscious and energetic. He contended that the balance of the footage did not reflect either that the complainant was substantially intoxicated or tired. She was choosing food, giving her order, seated in a chair and joking with her friends. She also walked downstairs without assistance or use of the banister.

12. [103]

    However, the emails referred to by Mr Dedeoglu make it clear that he was consulted about this material. I am unable to discern the basis of any complaint that Mr Dedeoglu could have in these circumstances.

Ground 5D: Some screenshots of the complainant’s given to me the other ones haven’t given entirely.

1. [104]

   This ground is a repetition of a contention already dealt with under Ground 4.

Ground 5E: Uber data/statement haven’t given go me entirely and that document became available very late, as during the trial.

1. [105]

   Mr Dedeoglu complains that the Uber records were provided to him late.

2. [106]

   Exhibit O comprised six maps that were marked with relevant Uber tracking data and depicted the route taken by Mr Dedeoglu to the complainant’s house. The evidence also confirmed the times at which the vehicle was outside the complainant’s house and the time when the GPS device was changed so that Mr Dedeoglu’s status on the Uber application showed that he was not available to receive fare requests. After the GPS device was changed, no tracking data was transmitted.

3. [107]

   Mr Dedeoglu has not clarified why or how this material, or its delayed production, had any potential relevance beyond the use that was made of it at the trial.

Ground 5F: Optus data /statement haven’t given to me entirely and that document became available very late, as during the trial.

1. [108]

   This ground is a repetition of part of the submissions made in support of Ground 3.

Ground 5G: Some of statements haven’t given to me.

1. [109]

   Mr Dedeoglu complains that the police obtained some statements that were never provided to him. These include individuals who would appear to have been responsible for the provenance of the CCTV footage from North Bondi Fish, McDonald’s and the Star Bar. The Star Bar licensee is also said to fall into this category. Mr Dedeoglu does not, however, articulate a basis upon which these contentions assist his current position in this Court.

Ground 5H: PCSC Cindy Northam’s produced photographs haven’t given to me.

1. [110]

   Mr Dedeoglu complains under this ground that the police took photographs of the complainant’s clothes but that these photographs were not provided to him. Once again, Mr Dedeoglu does not articulate a basis upon which these contentions assist his current position in this Court.

Ground 6A: (IZ’s) and (MS’) evidence should have been inadmissible as they are hearsay evidence.

1. [111]

   Mr Dedeoglu’s written submissions clearly and succinctly described the foundation for this ground of appeal. IZ and MS gave evidence in the trial. The Crown and the trial judge referred to their evidence as material said to support the complainant’s distress. As such, this evidence was an important part of the Crown case. However, neither witness relied upon what they heard from a phone conversation with the complainant but relied instead upon what SO told them about her telephone conversation with the complainant. That evidence was therefore hearsay and should not have been admitted.

2. [112]

   The relevant portions of the witnesses’ evidence is as follows.

3. [113]

   IZ described having “started to receive Snapchats” from the complainant but added, “I don’t really recall what they said or anything”. She said that after the Snapchats there was a phone call between SO and the complainant. The balance of her evidence about communications with the complainant then continued:

4. [114]

   IZ was not cross-examined about the complainant’s communication with SO after the alleged incident. She gave no evidence about the content of the Snapchats. IZ’s evidence as to representations made by the complainant was limited to agreeing that SO had told her that something had happened to the complainant. IZ gave that evidence in the context of describing SO’s voice while on the phone to the complainant as seeming “quite like worried and that something had happened”.

5. [115]

   MS was asked whether something happened just before 2am. She said “there was a Snapchat. [The complainant] sent SO Snapchat”. MS said she did not see the Snapchat. Her evidence then continued:

6. [116]

   The Crown noted that MS gave no evidence as to the content of the Snapchat. Her evidence that “[the complainant] was hysterical, crying and could hardly get words out” was direct evidence of what she had overheard as to the state of the complainant’s voice on the other end of the phone. MS’s evidence about which Mr Dedeoglu now complains was not objected to at the trial. It was therefore correctly admitted: Dogan at [19]. It was in any event admissible pursuant to s 66(2) of the Evidence Act.

7. [117]

   The Crown submitted, and I agree, that these portions of the evidence of IZ and MS were either direct evidence of what they observed and heard or were not adduced to prove the truth of any hearsay representation. The evidence was not rendered inadmissible by the hearsay rule in s 59(1) of the Evidence Act.

8. [118]

   However, Mr Dedeoglu’s submissions would appear to go further and to impugn her Honour’s directions to the jury upon the use that they could make of the evidence of IZ and MS on this issue. Mr Dedeoglu’s submission was in these terms:

9. [119]

   I observe that no objection was taken to her Honour’s summing up at the trial and Mr Dedeoglu did not submit in terms that her Honour’s direction from which he has quoted in part was erroneous so as to have resulted in a miscarriage of justice in the sense that he was denied a trial according to law.

10. [120]

    Moreover, and without any explanation, particular submissions or other criticism, Mr Dedeoglu proceeded to include in his written submissions the following portions from pages 34 and 35 of her Honour’s summing up to the jury:

11. [121]

    As I have indicated, Mr Dedeoglu has not contended that these directions were erroneous and no objection was taken to them at his trial. They do not support a conclusion that Mr Dedeoglu’s trial somehow miscarried.

Ground 6B: Not fresh in memory.

1. [122]

   Mr Dedeoglu has submitted that IZ and MS made statements on 7 February 2020, almost one and a half years after the incident, and only four days before his trial which commenced on 11 February 2020. Mr Dedeoglu contended that there was no reason given as to why those witnesses gave statements so late. They each gave evidence within a week or so thereafter. Mr Dedeoglu submitted that at the date when they made their statements and gave their evidence in court, their memory was not fresh “about the incident”. He submitted, “there was no previous statement which may [re]fresh their memory”. Mr Dedeoglu’s submissions then proceed to set out some of these witnesses’ evidence and to quote from Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61.

2. [123]

   It is apparent that Mr Dedeoglu wishes in some fashion to marshal a reliance upon s 66 of the Evidence Act and to say that it does not apply to assist the Crown in his case. However, this reliance would appear to be misplaced as the provision did not arise for consideration in the trial.

Ground 7: The Doctor witness hasn’t (given) adequate evidence.

1. [124]

   Mr Dedeoglu’s written submissions in support of this ground included the following:

2. [125]

   Mr Dedeoglu contends under this ground that Dr Woods did not give “adequate” evidence. The ground so described may not clearly convey the nature of Mr Dedeoglu’s complaint. It seems to me that Mr Dedeoglu is really complaining about the effect of the evidence that was actually given, not about its so-called inadequacy.

3. [126]

   It appears from the medical, and other, evidence in the trial that the issue of the complainant’s consent or otherwise was explored in the context of (a) the extent to which she had sustained vaginal or labial injuries as the result of the digital penetration admitted by Mr Dedeoglu and (b) whether the state of her genital lubrication or lack of it spoke to the question of whether the complainant was conscious or unconscious at the time. Dr Woods’ evidence was that there was no necessary causal relationship between the existence of injuries and the question of whether the sexual penetration was or was not consensual. Mr Dedeoglu argued that the absence of injury was also consistent with the complainant being lubricated at the time, suggesting (according to him) that she had consented. Mr Dedeoglu appears also to criticise the evidence of Dr Woods to the extent that she offered no opinion about whether the complainant was likely to have been conscious or unconscious at the relevant time.

4. [127]

   The evidence that was given by Dr Woods, extracted in part in Mr Dedeoglu’s written submissions, in circumstances where she was aware of the detail of the complainant’s description of digital penetration of her vagina, including that she was unconscious when it commenced, was as follows:

5. [128]

   Mr Dedeoglu maintains that this evidence is somehow unsatisfactory and that there should have been some further or other evidence about the relationship, if any, between the absence of female genital injury and the existence of consent. However, Mr Dedeoglu’s submissions tend to reveal other concerns:

6. [129]

   Dr Woods’ Certificate contained the following opinion:

7. [130]

   Mr Dedeoglu’s submissions propound what is in effect a non-expert theory to support the existence of a binary relationship between consensual/non-consensual penetration and the presence/absence of injury when the question is far more subtle and considerably more complex. It is in my opinion not possible to accept that Mr Dedeoglu has any complaint beyond a dissatisfaction with the state of the evidence on this issue that went to the jury. However, his dissatisfaction does not correspond to the identification of a miscarriage of justice in the circumstances.

8. [131]

   This ground of appeal is without substance.

Ground 8: OIC Keremelevski’s evidence inadmissible according to s 33 Evidence Act.

1. [132]

   Constable Keremelevski gave evidence on the voir dire. Mr Dedeoglu set this evidence out in his written submissions. He apparently proceeds to argue that s 33 of the Evidence Act ought to have precluded the reception of the evidence because the officer did not complete his statement until 28 December 2018, over three months after the relevant events on 26 August 2018. However, no objection was taken at the time to the officer reading his statement and it was tendered. Counsel’s decision not to object did not give rise to a miscarriage of justice. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applies in any event. Leave to argue this ground should be refused.

Ground 8A: OIC Brendan Keremelevski’s unreadable diary copies should not been admissible and should not been accepted by the court.

1. [133]

   Mr Dedeoglu contends that the notes made by Officer Keremelevski should not have been admitted as evidence, presumably because they were “unreadable”, a description that I take to mean “illegible”. Accepting for the sake of argument that Mr Dedeoglu’s characterisation of the notes is correct, his objection could only go to the question of weight. No viable complaint is identified in the circumstances.

Ground 9: Failure to call witnesses (police officer and sexual assault counsellor).

1. [134]

   Mr Dedeoglu complains that an unnamed police officer, and Lisa Simpson, the sexual assault counsellor who was present with the complainant when she was seen by Dr Woods at the RPA, should each have been called as witnesses.

2. [135]

   MS gave evidence that she spoke to an unnamed police officer on the morning of 26 August 2018. SO gave evidence by reference to text messages in Exhibit B that MS “had spoken with her friend who’s a police officer and I think they were telling us we needed to – or she needed to tell someone”. MS gave no evidence of any conversation with that police officer.

3. [136]

   Mr Dedeoglu presumably contends that some unfairness arises from the Crown’s failure to call this police officer. I do not understand that. No unfairness or miscarriage of justice could arise from the failure to call an officer whose evidence about anything that MS might have told him would have been objectionable as hearsay. Moreover, as the Crown submits, any impact that the police officer’s recommendation to speak to someone might have had on the complainant’s decision to make further complaint would not be a matter about which that officer could have given evidence over objection.

4. [137]

   Mr Dedeoglu does not identify what, if any, additional evidence Ms Simpson might have given beyond that adduced from Dr Woods. Dr Woods made contemporaneous notes of her dealings with the complainant and of the observations she made at the time. As the Crown has emphasised, there was no material dispute at trial about those dealings. In the circumstances, there was no obligation on the Crown to call Ms Simpson.

Ground 11: (On) 6th day of trial, according to her Honour’s advice the Crown case was changed. That situation did not give me chance to make defence for new case.

1. [138]

   These grounds may be considered together.

2. [139]

   Mr Dedeoglu contends that either the trial judge or the Crown or both improperly exaggerated or elevated the complainant’s level of “tiredness” relative to her level of intoxication in a way that was both inconsistent with the evidence and that prejudiced his defence.

3. [140]

   In support of Ground 10, Mr Dedeoglu made the following preliminary submissions:

4. [141]

   Quite apart from the fact that the cause of the complainant’s unconscious state during the incident, or some part of it, whatever it may have been, was of little, if any, actual relevance, the evidence does not support Mr Dedeoglu’s complaint. The complainant’s evidence about this included the following:

5. [142]

   The ways in which the Crown and her Honour characterised the complainant’s state of consciousness, to the terms of which Mr Dedeoglu has referred in detail in his written submissions, were entirely in accordance with this evidence given by the complainant and were in no sense an exaggeration of it.

6. [143]

   These grounds of appeal are without merit.

Ground 12: Her Honour inadequately directed the jury about “asleep” and “unconsciousness” issue. Her Honour hasn’t explained that those are only factors if happened during the sexual acts.

1. [144]

   The relevant portion of her Honour’s summing up was as follows:

2. [145]

   It was, in contrast to the complainant’s evidence, Mr Dedeoglu’s evidence that the complainant was awake at all relevant times:

3. [146]

   Mr Dedeoglu referred to some passage from a decision of the ACT Court of Appeal in Agresti v The Queen (2017) 13 ACTLR 1; [2017] ACTCA 20 as follows:

4. [147]

   In his written submissions, Mr Dedeoglu complains that in her Honour’s directions quoted above, she “doesn’t distinguish that, whether the complainant was conscious or asleep at that time during sexual act happened or any time during the complainant was in the car”. However, the italicised portion of her Honour’s directions in particular, and the whole of her directions in general, understood in light of Mr Dedeoglu’s evidence that made it crystal clear that the issue was whether the assault started when the complainant was asleep, are unambiguous. The jury could have been left in no doubt that the issue of consent or otherwise was related to the complainant’s state of consciousness at the time when the acts complained of were being performed. To suggest otherwise is to deprive her Honour’s words of their ordinary meaning and to discard the expectation that the jury would have attended to their task using their common sense and life’s experience.

5. [148]

   Nothing said in Agresti causes me to consider that it provides any support for Mr Dedeoglu’s present contentions. In the present case, there was a factual dispute about whether the complainant was awake when the sexual activity commenced or whether the sexual activity commenced when the complainant was already unconscious but woke to discover that the sexual acts were being performed. Her Honour's directions adequately addressed that issue in the context of explaining the Crown's obligation to prove beyond reasonable doubt that the complainant did not consent to the admitted conduct.

6. [149]

   This was not a case, like Agresti, in which the Crown was required to prove knowledge of the absence of consent upon the basis of the complainant’s unconsciousness, in which case the jury would have to have been directed (and satisfied) that Mr Dedeoglu knew that the complainant was not conscious at the time he committed the sexual acts complained of. By way of contrast, the evidence of the complainant in the present case was that she awoke to find herself being assaulted, whereas the evidence of Mr Dedeoglu was that she was always awake during the sexual activity.

7. [150]

   I would reject this ground.

Ground 13: Her Honour misdirected to jury about how to evaluate the evidence (of the complainant) in saying; the answer “No”, “I’m not sure”, “I don’t remember” are not evidence.

1. [151]

   Her Honour’s directions concerning how the jury should approach the task of evaluating the evidence were comprehensive and unexceptionable. They were as follows:

2. [152]

   Mr Dedeoglu’s contention, that answers such as “no”, “I’m not sure” and “I don’t remember” are evidence, is uncontroversial. They form part of the evidence which it is for the jury to assess and evaluate along with all of the other evidence in the case. Indeed, answers that the complainant gave that suggest that she was or may have been uncertain about something or positively unable to remember it would generally not be inimical to Mr Dedeoglu’s interests. Be that as it may, her Honour’s directions did not result in any unfairness, let alone a miscarriage of justice. They certainly did not in my opinion tend to give the jury the impression that such answers should be discounted or degraded as evidence that they were entitled to consider and evaluate along with all of the other evidence in the trial.

3. [153]

   This ground of appeal should be rejected.

Ground 14: Her Honour should not (have) accepted “unexist (non-existent?) video” evidence and should not been addressed that as evidence for the complainant(’s) distress.

1. [154]

   As already noted, the evidence established that the complainant sent Snapchat messages to SO. At one point, the Crown erroneously referred to these as “video messages”. That description was inaccurate. However, it was, as the evidence later made clear, no more than a slip-of-the-tongue. It was unsurprisingly never objected to by defence counsel and was equally unsurprisingly never explored with any witness in cross-examination. Mr Dedeoglu has not identified any unfairness that arose by reason of this passing error in terminology. This ground is without merit.

Ground 15: Her Honour misdirected the jury as, that the evidence of complaint was “some evidence independent of the complainant”.

1. [155]

   Her Honour’s directions about which this ground of appeal complains were as follows:

2. [156]

   Mr Dedeoglu contends with respect to these directions that they amounted to a misdirection in saying that the evidence of complaint was “some evidence independent of the complainant…in saying that her Honour separated complaint and complainant”. He also complained that her Honour gave more weight to the complaint by directing the jury that the law says that because of the circumstances in which the complaint is made, a jury is entitled to use what was said in that complaint as evidence of the truth. Finally, Mr Dedeoglu complains that her Honour’s direction that the complaint was made at a time and in a manner that would indicate that the allegation was reliable and accordingly less likely to have been fabricated was an “incorrect direction, which was mislead(ing) to the jury and caused a miscarriage of justice”. Mr Dedeoglu’s submissions also appear to contend that her Honour’s directions effectively invited the jury to accept the evidence of complaint and conclude that the allegations were reliable.

3. [157]

   However, as her Honour’s directions clearly indicate, they are expressly predicated or dependent upon the jury finding that the complaints in question were made. That caution is later emphasised by her Honour in the following terms:

4. [158]

   I do not accept that there is any infelicity of expression in her Honour’s directions. No miscarriage of justice has been identified. The ground of appeal should be dismissed.

Ground 16: I have been represented by incompetent legal team in the trial.

1. [159]

   The principles dealing with allegations of incompetent legal representation are well known: see, for example, Monteiro v R [2011] NSWCCA 113 at [155] – [158]. The ultimate question for this Court is whether the acts or omissions of counsel complained of resulted in a miscarriage of justice. There will be a miscarriage of justice if an applicant has “lost a chance of acquittal that was fairly open” or where the errors of counsel are such that “when viewed in combination with the evidence in the trial…the jury would have been likely to entertain a reasonable doubt about the guilt of the accused”, or there is a “significant possibility” that the error of counsel “affected the outcome of the trial”: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8], [29] – [31], [79] – [85].

2. [160]

   Mr Dedeoglu has raised a series of complaints about the conduct of his “legal team”, detailed at paragraphs [496] to [554] of his written submissions. With the exception of what follows, I consider that none of these complaints has merit.

3. [161]

   The exception relates to the alleged failures of defence counsel to cross-examine the complainant challenging the existence or level of her distress following the events in the car. That is a generic complaint that raises in effect the proposition that the complainant originally consented to the sexual acts that were committed, and may indeed, according to Mr Dedeoglu’s evidence, have both initiated and encouraged them, but that she later regretted her actions after the sexual activities had concluded. In that context the contention is that the complainant’s allegations are borne not of genuine distress that she had been subjected to non-consensual sexual activity but of regret, and possibly shame, that she experienced following consensual sexual activity with Mr Dedeoglu. Mr Dedeoglu complains that this “version” was not put in terms to the complainant or that her distress may have been no more than a manifestation of her regret.

4. [162]

   This analysis is conveniently encapsulated in the Crown’s written submissions in this Court as follows:

5. [163]

   Thereafter, having addressed aspects of Mr Dedeoglu’s account in which he described actions of the complainant that were, if accepted, consistent with her giving consent, such as lifting her hips to assist with the pulling down of her jeans, defence counsel said this, at T467.32 and following:

6. [164]

   Significantly, as the Crown points out, it was these aspects of defence counsel’s address that precipitated the following discussion in the absence of the jury:

7. [165]

   In due course, her Honour returned to the issue, as anticipated, in the following terms:

8. [166]

   The Crown submissions in this Court were then as follows:

9. [167]

   This ground of appeal raises the question of the importance or otherwise of the rule in Browne v Dunn (1893) 6 R 67 in criminal trials. It is uncontroversial that considerable caution is required in applying the rule in criminal trials against an accused person since there may be any number of reasons for the failure to cross-examine a witness on a point, including counsel's error or oversight: R v Birks (1990) 19 NSWLR 677; R v Manunta (1989) 54 SASR 17.

10. [168]

    In Birks, Mr Birks was indicted on eighteen counts, surrounding an alleged vicious sexual assault. Part of Mr Birks’ defence involved asserting that the complainant's injuries were sustained when the accused warded off blows from a torch (supposedly wielded against him by the complainant), and denying outright the complainant’s allegations pertaining to anal intercourse.

11. [169]

    Counsel for Mr Birks did not cross-examine the complainant on either of these matters. The Crown then cross-examined the accused as to his instructions to his lawyers, and even as to his knowledge of the rule of Browne v Dunn itself. Mr Birks maintained that the instruction he gave to counsel was that the complainant’s injuries were occasioned as he described, and that there was no anal intercourse.

12. [170]

    This failure was then revealed to be not a tactical failure but "the result of [counsel's] own oversight" (at 682), as counsel told the judge from the bar table after the jury retired. Counsel asked for the jury to be discharged, which was refused. The jury then came back "fairly promptly" (at 683) with verdicts of guilty.

13. [171]

    The problem in Birks was that counsel’s error was not in the "ordinary run": the matters which were not cross-examined on "went to the whole issue in relation to the first charge" (at 685). Secondly, the failure of counsel to rectify the problem was not a “deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better.” Rather, counsel “simply did not know what to do, and so, until it was too late, he did nothing" (at 685-686).

14. [172]

    The trial, however, had miscarried for other reasons as well, namely, that the rule in Browne v Dunn was applied too onerously against the accused. While it is a matter of fairness to witnesses to "put" things to them in cross-examination, there are manifold other explanations for why something may not have been put to the witness, that do not reflect on credibility, such as counsel’s oversight or forensic pressure. These factors assume potential significance having regard to the fact that non-observance of the rule may lead to adverse inferences being invited or drawn against the party whose counsel is responsible for the error (see 690-691).

15. [173]

    The following observations of Gleeson CJ in Birks (from 685-692), endorsing the remarks of King CJ in Manunta, should be noted:

16. [174]

    Gleeson CJ’s judgment in Birks has been favourably considered in more recent decisions. For example, in Hofer v R (2021) 395 ALR 1; [2021] HCA 36, Kiefel CJ, Keane and Gleeson JJ said this at [31]:

17. [175]

    In R v Miletic [1997] 1 VR 593, Winneke P, Charles and Callaway JJA said this at 600:

18. [176]

    In MWJ v R (2005) 222 ALR 436; [2005] HCA 74 at [18], Gleeson CJ and Heydon J, while noting that the rule in Browne v Dunn still applies to criminal trials, affirmed Birks and Manunta with respect to observations around the care that needed to be taken when applying the rule against defence counsel. The decision in MWJ was considered in R v MAP [2006] QCA 220. Keane JA said this:

19. [177]

    Observations by Nettle JA in R v Coswello [2009] VSCA 300 should also be noted:

20. [178]

    I remain concerned with so much of her Honour’s direction, quoted earlier, that said:

21. [179]

    I am unable to agree with the Crown’s submission at [251] “that there was no miscarriage of justice as there was not a significant possibility that the error [by Mr Norrie] affected the outcome of the trial”. Properly understood, the contention that the complainant made her allegations of sexual assault because she regretted what she had done was precisely the case that Mr Dedeoglu maintained was available from his version of the encounter in his car. Indeed, according to him, if the complainant had consented as he maintained, the only reason for her complaint apart from malice, which was never suggested, is that she came to the realisation that she had unwisely permitted a man somewhat older than her who she had never previously met and about whom she knew nothing at all, to engage in acts of sexual intimacy with her in his car not far from her home. Having always admitted the commission of the sexual acts in question, the only available counterfactual to which Mr Dedeoglu could point in an attempt to explain why the complainant would have alleged that he had sexually assaulted her was that she did so after reflecting upon the wisdom of her decision, which she immediately came to regret. With respect to the Crown’s submission, her Honour’s characterisation of that explanation as “highly improbable” has to be understood in the context of a sentencing exercise which was by definition based upon the jury’s adjudicated decision that had rejected it. Even adopting her Honour’s assessment for the purposes of the argument, it serves to emphasise that without the availability of submissions that were supported by this case theory, Mr Dedeoglu was left with nothing capable of making sense of his denials.

22. [180]

    In my opinion, counsel’s error, and her Honour’s direction that purported to correct it, led in combination to a significant possibility that the outcome of the trial has been affected. I consider that Mr Dedeoglu’s inability to rely upon the argument that he wished to have the jury consider, which according to her Honour’s direction was without an evidentiary basis and which he was thereby precluded from relying upon as the result of his barrister’s failure to put the relevant preconditional propositions to the complainant, meant that there has been a miscarriage of justice which deprived him of the chance of an acquittal that was fairly open. I consider that but for the error of counsel which led to her Honour’s “correcting” direction, the jury would have been likely to entertain a reasonable doubt about Mr Dedeoglu’s guilt.

Ground 17: Her Honour should (have) disqualified herself. Because her Honour said’ “having a daughter of this age” (same age as witnesses and the complainant).

1. [181]

   This ground is easily disposed of in the circumstances of this case. The context in which her Honour revealed the fact that she had a daughter of a similar age to one of the female witnesses makes it pellucidly clear that the reference was wholly unremarkable and unexceptionable. The fact that it drew no comment or application from Mr Dedeoglu’s barrister is powerful support for such a conclusion.

2. [182]

   This ground of appeal has no merit.

Ground 18: Verdict is unsafe and unsatisfactory. Verdict cannot (be) supported by evidence.

1. [183]

   In accordance with well-established authority, the question raised by this ground of appeal is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of Mr Dedeoglu’s guilt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] – [66]:

2. [184]

   See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 621‑622 [49]‑[51], 623 [56].

3. [185]

   It is important to bear in mind at all times that the jury is the body entrusted with the primary responsibility of determining guilt and that the jury has had the benefit of having seen and heard all of the witnesses: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493. That advantage extends to the combined advantage of 12 jurors having seen and heard the witnesses at the trial: Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83 at [480].

4. [186]

   Mr Dedeoglu’s submissions do not appear to appreciate the significance of this approach. Instead, his submissions largely regurgitate a series of complaints that have been considered separately in other discrete grounds of appeal. The Crown case at trial proceeded upon the fundamental proposition that the jury would accept the complainant’s account of what occurred in the car, corroborated by other evidence from witnesses to whom she either complained about, or reported, those events. It is obvious that the jury accepted her account and that they were not satisfied that Mr Dedeoglu’s account should be accepted or they were at the very least not satisfied that it might possibly have been true.

5. [187]

   I cannot discern any basis upon which, having regard to the whole of the evidence, it could be said that the jury’s verdict was unreasonable.

Ground 19: SO’s evidence about the conversation with the complainant, that should have been inadmissible as hearsay and opinion evidence. Her evidence also withstand to “unexist videos”.

1. [188]

   Mr Dedeoglu complains that SO’s evidence of what she had been told by the complainant was not adduced in admissible form and not in direct speech. No objection was taken to the evidence when it was adduced. Mr Dedeoglu does not identify any specific unfairness that is said to result from the way in which SO’s evidence was given. There has not been any miscarriage of justice in these circumstances.

Ground 20: The facts which I have not mentioned during my interview [even I mentioned some of them] used by the Crown to (for the) purpose of discredit(ing) me and damage my defence. So on, substantial miscarriage of justice.

1. [189]

   Mr Dedeoglu maintained in ground 1 that his ERISP was wrongly admitted. I have earlier rejected that contention. My reasons for doing so need not be repeated here.

2. [190]

   Sections 89 and 89A of the Evidence Act, upon which Mr Dedeoglu attempts to rely under this ground have no application. Far from refusing to answer questions, Mr Dedeoglu was forthcoming in his answers when questioned by the police. As I have elsewhere attempted to explain, that was beneficial to him in the sense that his account of what occurred was given at an early stage and he did not depart significantly from it later, including during his evidence in the proceedings in which he adhered to what he had said when interviewed. To the extent that there were any inconsistencies between his account at trial and that given in his ERISP, the Crown was entitled to cross-examine him: s 104 Evidence Act. Such a course is no more or less than a usual and expected forensic procedure in adversary litigation.

Ground 21: That was not adequately opened to the jury, ‘how jury can find the accused not guilty’, which caused substantial miscarriage of justice.

1. [191]

   This ground is wholly without substance. The jury was directed concerning the elements of the offences in clear and unexceptionable terms. No objection was taken to the directions by counsel for Mr Dedeoglu. Nor were further or additional directions sought.

2. [192]

   In particular, as the Crown submissions correctly observe, her Honour’s directions were consistent with the central factual dispute at trial: the complainant said that she was asleep and awoke to find Mr Dedeoglu sexually assaulting her, without any prior interactions between them that might support an honest belief that the complainant had consented to intimate contact. Mr Dedeoglu’s account was that the complainant’s words and actions were unambiguously consistent with her having consented to what occurred.

3. [193]

   Her Honour’s directions have not given rise to any miscarriage of justice.

The proviso

1. [194]

   The Crown orally addressed the proviso in economical submissions at the end of the hearing in this Court. The Crown submitted that the case against Mr Dedeoglu was strong and “to the extent that there was a defect in the trial that might be characterised as a miscarriage and, in the Crown submission, there isn’t one … no substantial miscarriage flowed”.

2. [195]

   Mr Dedeoglu referred the Court to its decision in Rees v R [2010] NSWCCA 66, in which the following appears:

3. [196]

   In the present case, as I have earlier noted, the only possibly credible response to the complainant’s account that Mr Dedeoglu could point to, having regard to the fact that the sexual acts were admitted by him, was that the complainant consented but later regretted having done so. The obvious response to this analysis is one that says that because there were no witnesses to what occurred, any shame or regret or remorse that the complainant may have experienced was of no consequence because the fact that the complainant may have engaged in a sexual act with Mr Dedeoglu was certain never to be revealed to anyone else unless she revealed it herself. The prospect that she would therefore be subjected to any criticism was small if not actual non-existent.

4. [197]

   The present case is not as strong as Rees as the evidence of consistent and timely complaint is uncontroversial. However, I remain of the view that the assessment of the strength of the Crown case has to be considered in the light of Mr Dedeoglu’s only possible defence, upon which in the events that occurred he was prevented from relying. In my view the proviso should not be applied.

5. [198]

   It follows that I consider that the appeal against conviction should be upheld and that a new trial should be ordered. However, having regard to the conclusions reached by Fagan J and Yehia J with respect to the conviction appeal, it is unnecessary for me to make orders giving effect to my decision.

6. [199]

   Mr Dedeoglu was convicted of three offences, and was sentenced with the benefit of a significant degree of accumulation: the offences occurred during a short period of time and were in effect all part of a single episode of offending. The sexual intercourse offence was markedly more serious than the other offences. All of the offending immediately came to an end when the complainant indicated that she wanted it to stop.

7. [200]

   Mr Dedeoglu submitted that his sentence is “extremely lengthy for verdict”. That is properly to be treated as a submission that the sentence imposed upon him was manifestly excessive. Mr Dedeoglu also relied upon a series of discrete propositions in support of his challenge to the sentence. However, having regard to the view I have formed with respect to the aggregate sentence, it is unnecessary to consider the contentions asserting patent error.

8. [201]

   The aggregate sentence is in my opinion manifestly excessive. Having regard to the extent of the accumulation, the sentence is effectively a sentence for the offence of sexual intercourse without consent. The Crown has emphasised the fact that Mr Dedeoglu drove his Uber from the location outside the complainant’s home to another location and that he “attacked” her when she was asleep and vulnerable. The act of driving away is said to have increased her vulnerability. The offences were committed with knowledge that the complainant was not consenting and could not consent. There was no evidence that Mr Dedeoglu was remorseful. Although her Honour found the offences to be opportunistic, the Crown submitted that the opportunity which Mr Dedeoglu exploited arose as a direct result of his employment as a driver.

9. [202]

   Even notwithstanding these propositions, a sentence of 8 years and 6 months is to my mind unreasonable and plainly unjust. Mr Dedeoglu was a person with no prior convictions. Even taking account of the fact that his lack of a criminal record would have been a precondition to his employment as an Uber driver, Mr Dedeoglu was entitled to receive a greater degree of leniency for what was his first experience of incarceration.

10. [203]

    I accept that the actual duration of the offending cannot be known, a matter to which her Honour referred. Section 61I of the Crimes Act necessarily contemplates a wide range of acts of sexual intercourse of varying degrees of seriousness. In assessing the seriousness of Mr Dedeoglu’s offending, it is important to bear in mind a notional comparison between Mr Dedeoglu’s conduct and other more serious and extreme conduct that potentially offends the section. However, without wishing or intending to depreciate the significance of Mr Dedeoglu’s conduct for the complainant, I am unable to accept that her Honour’s sentence was not erroneously excessive.

11. [204]

    I consider that there should be a finding of special circumstances for the reasons identified by her Honour.

12. [205]

    Having regard to the conclusions reached by Fagan J and Yehia J concerning Mr Dedeoglu’s conviction appeal, I consider that the following orders should be made with respect to his appeal against sentence:

    1. (1)

       Allow Mr Dedeoglu’s appeal against sentence.

    2. (2)

       Quash the sentence imposed upon Mr Dedeoglu on 7 April 2020 by her Honour Noman DCJ and in lieu thereof sentence Mr Dedeoglu to an aggregate term of imprisonment of 7 years commencing on 2 April 2019 and expiring on 1 April 2026 with a non-parole period of 5 years expiring on 1 April 2024.

    3. (3)

       Nominate the following indicative sentences:

13. [206]

    FAGAN J: I agree with Harrison J’s reasons and conclusions concerning all the grounds that he would dismiss, in the conviction appeal. I differ from his Honour on that part of ground 16 that concerns defence counsel’s failure to put to the complainant that her prompt complaints about the applicant having engaged in sexual acts without her consent were the product of regret and shame from having willingly taken part in those acts, after she changed her mind. I would reject that ground also. I would dismiss both the appeal against conviction and the appeal against sentence.

14. [207]

    In order to assess the applicant’s claim that it was incompetent on counsel’s part not to have put the hypothesis of fabricated complaints and that a miscarriage of justice resulted, I find it necessary to emphasise some aspects of the evidence.

15. [208]

    The complainant was 17 years old at the time in question. Her mother gave evidence that she was required to be home by 2:00 am, which was exceptional to her usual 1:00 am curfew to allow a little extra freedom at the end of a week of Higher School Certificate trial examinations. At 7:04 pm the complainant sent her mother a text message to say that she was on her way to her schoolfriend’s party at Bondi Junction. At 11:21 pm she sent a further text to advise that she was then at the Star Bar, at the north end of George Street in the city. At 11:43 pm another text message from the complainant to her mother included these words: “I’ll be home at 2.00”. At 12:12 am the complainant reconfirmed that she would observe the curfew, in this message: “Be home at two, xx”.

The Uber ride from the city to North Bondi

1. [209]

   At about 12:54 am, after dancing and socialising at the Star Bar and after obtaining food from a nearby McDonald’s restaurant, the complainant boarded the applicant’s vehicle with her two young male friends on Pitt Street. At 1:08 am she sent her mother a text that she was on her way home. This message did not expressly state that the complainant was already in the vehicle. At 1:12 am her mother replied with a request that the complainant advise when she was in the car. That message included the instruction: “always send me the link to the Uber you’re in”.

2. [210]

   The complainant’s mother said that she and the complainant had an understanding: if the mother sent a text message while the complainant was out at night and if she did not receive a response within half an hour, she would phone the complainant. If the call was not answered she would start phoning the complainant’s friends. The complainant did not reply to the message from her mother at 1:12 am, nor to a follow-up text at 1:18 am, consisting of question marks. The complainant had fallen asleep in the applicant’s vehicle during the journey from the city. She also did not answer a phone call from a mother at 1:49 am.

3. [211]

   The complainant’s mother was not cross-examined. Her uncontested evidence showed that she was watchful and protective. The evidence showed that the complainant knew this and that when she was out on the Saturday night in question she cooperated, by sending frequent text updates on her movements and by leaving the city in good time to comply with the 2:00 am curfew. Uber tracking records showed that the travel time from the north part of the city to the complainant’s home was approximately 30 minutes, on a route via Bondi Junction, where her two young male companions alighted. It would have been clear to the jury that the complainant believed, from the time of her message at 1:08 am, that her mother was at home and would be expecting her to arrive there within a few minutes after 1:30 am.

4. [212]

   During the preceding week of examinations the complainant had been rising at 6:30 am each day. She was tired when she entered the accused’s Uber vehicle, in part due to the demands of the week and also because she had drunk a moderate amount of alcohol during the evening and its effects were still wearing off. The complainant sat in the rear passenger seat behind the applicant. Her friend HW occupied the left-hand side of the rear seat and AS sat in the front passenger seat. AS alighted on Birrell Street, Bondi Junction, about half the road distance from the city to the complainant’s destination at North Bondi and therefore about 15 minutes into the journey. HW was not challenged as to his recollection that he observed the complainant to be asleep from about 2-3 minutes before the applicant stopped his vehicle to set down AS. The complainant did not recall AS getting out.

5. [213]

   After AS alighted, the vehicle travelled for another 5 minutes before the applicant stopped to let HW out. HW said that about one minute before he left the vehicle he woke the complainant to ask if she was alright, to which she responded, “Yes”. He said that he thought she was alert when she responded but the complainant had no recollection of this. She said that she remained asleep and was not conscious of events or her surroundings for the rest of the journey. After HW left the vehicle the applicant continued on and at about 1:28 am he stopped, initially, outside the complainant’s house on Brighton Boulevard, North Bondi.

6. [214]

   AS said that he had no conversation with the applicant during the part of the journey for which he was in the vehicle, apart from “Hello, how have you been?” when he first got in. The applicant said that AS also suggested some street directions on the way. HW and the complainant said they did not speak to the applicant and that was not disputed. The effect of this evidence was that, by the time the vehicle arrived outside the complainant’s home, the sum total of her encounter with the applicant had been that she was able to see the back of his head, partly obscured by his driver seat headrest, for about 15 minutes of car travel from Pitt Street until she fell asleep. In substance, she knew nothing about him – as to his name, his appearance, his age, his manner, his personality, or anything else.

7. [215]

   The complainant said that she did not know the accused had stopped close to her home at about 1:28 am, or that he remained stationary there for some minutes, or that he then drove, with the complainant still in the vehicle, to a parking bay facing the ocean on Ramsgate Avenue between the North Bondi Surf Life Saving Club and the Bondi RSL Club. The distance was the equivalent of about two city blocks. Uber records showed that the applicant had manually switched his application status to “off-line” at about 1:32 am and that it remained so until he switched it back to “online” at about 1:50 am. The complainant said that she awoke, at a time that must have been about 1:50 am having regard to other objectively proved surrounding circumstances, to find the applicant next to her and over her in the back seat, kissing her and “firmly and aggressively” putting his finger in her vagina. She then heard the applicant say, in an accent that she thought was Russian, “It’s okay. It’s okay”. She immediately pushed him away and got out of the car. She was captured on a nearby security camera walking quickly towards her home at 1:51 am.

The applicant’s case on consent

1. [216]

   The applicant contested the element of non-consent in each charge. He gave evidence that the complainant initiated the sexual activity between them. He said that he double parked outside the complainant’s home at about 1:28 am and told her, repeatedly, “We arrive your home. You can get out”. She did not respond and he assumed she was asleep. She was “still leaning back in a relaxed position”. Although the applicant’s trial counsel submitted to the jury that the complainant must not have been very heavily asleep during the latter part of the journey, the applicant accepted in his evidence that she was asleep when the car arrived outside her house. The applicant said that after two minutes he moved his car to a kerb-side parking space and he gave this evidence as to what followed (emphasis added):

2. [217]

   It was common ground that it would have taken one to two minutes for the applicant to drive the short distance to the parking bay on Ramsgate Avenue. He described what took place there as follows:

3. [218]

   The applicant said that he got out of the driver seat, entered the rear seat from the passenger side, sat next to the complainant and put his hand behind her head. She slid towards him, he kissed her on the lips and neck and she kissed him back, pulling his head toward her and then directing him down to kiss her breasts. He said she was breathing heavily and engaging with him, which encouraged him to try to undo her jeans at the waist. The applicant said that the complainant assisted by lifting her hips, undoing the waist button and zipper and pulling her pants down. He put his hand inside her underwear and his fingers over her vagina. The applicant said that the complainant responded physically with her legs and that she placed her hand over his to push his hand down onto her vagina, at which point he penetrated her with his finger. He said that after he had penetrated her more forcefully the complainant changed to pushing his hand away. He asked, “Can we continue a little bit longer?” and she said, “Yes, okay” but soon after that she broke off the contact, appeared upset and said “I’m going home”. She then left the vehicle.

4. [219]

   In cross-examination the applicant’s trial counsel put to the complainant, step by step, the whole of the above account that the applicant subsequently provided in his own evidence, from arrival at Brighton Boulevard at 1:28 am until the complainant left the vehicle on Ramsgate Avenue at about 1:50 am. The complainant maintained that she was unaware of anything that had occurred in those 22 minutes because she was asleep until woken by the forceful and uncomfortable penetration of the applicant’s finger in her vagina. She then freed herself from him and got out of the car as quickly as she could.

5. [220]

   The single contested issue was whether the Crown had proved absence of consent to the criminal standard. That turned upon whether the jury accepted as truthful and accurate, beyond reasonable doubt, the complainant’s evidence that she was asleep during the relevant interval of time and not in a conscious state to be capable of consenting. As the defence was conducted, in the circumstances of this trial, the only path by which the jury could have entertained a reasonable possibility that the complainant may have consented would have been if they thought it reasonably possible that she was awake over the 22 minutes and that the applicant’s account of her words and acts of consent might be truthful and accurate.

6. [221]

   Solely on the evidence of the events as recounted so far, before coming to the evidence of immediate complaint, the jury would likely have regarded it as no more than a remote and fanciful possibility that the applicant’s evidence was truthful and accurate. The complainant was tired to the point of falling asleep in the vehicle and she had taken an Uber ride home to meet the curfew restriction imposed by mother, whom she had notified of her departure from the city and whom she knew would be expecting her. It must have appeared to the jury highly unlikely that, upon waking up outside her address, the first words from the complainant would be, “I don’t want to go home”. Would this 17 year old girl, who had scrupulously complied with parental instructions for her safety throughout the evening until this time, abruptly abandon her curfew and recklessly propose to her previously unknown Uber driver that they go to his home? It would have seemed to the jury additionally improbable that when the driver rejected that idea and said also that venues would be closed, she would be so keen to pursue sexual contact with him as to respond positively to his suggestions that they “go to the beach" and “do something in the car” – saying, “It’s going to be crazy”. The improbability continued in the applicant’s account of the complainant then inviting him onto the back seat and throwing herself into passionate sexual activity with this stranger, sight unseen. All of these were elements of the applicant’s exculpatory evidence and the improbabilities accumulated and compounded each other.

Complaint evidence

1. [222]

   The complaint evidence has been summarised by Harrison J. Some aspects are particularly important to the appeal ground that I am now considering. The first complaint was a Snapchat message sent by the complainant to her friend SO at 1:50 am, within the minute after the complainant got out of the applicant’s car on Ramsgate Avenue. The message comprised a picture of the complainant, looking upset, with the message “i feel like I was justctakkeb advantage of” (as typed). The image and message were saved by SO. The immediacy of this complaint could not be challenged in view of the automated electronic time stamp. The complainant followed this first message with video messages on Snapchat, in which she attempted to explain what had occurred but was flustered and upset and not able to articulate clearly. The video messages were not recorded or retained but secondary evidence of their content was given by SO. SO said that in one message the complainant said, amongst other things, “he’s kissing me and my pants were undone”.

2. [223]

   At 1:52 am SO phoned the complainant in response to her messages. SO was with three other school friends when the call took place. The complainant was very upset and SO could not understand what she was trying to convey, beyond the fact that someone had “grabbed her” and that she heard a Russian voice. One of the girls who was with SO and listened in to the call said that the complainant was “hysterical, crying and could hardly get words out … She was in a bad state”. The complainant was still on that call, crying and trying to explain what had occurred, when she arrived in front of her home. The walk up from Ramsgate Avenue was only about four minutes.

3. [224]

   The complainant gave this evidence about her arrival home, which was not challenged in cross-examination:

4. [225]

   The complainant’s mother gave the following account of the complainant’s arrival home:

5. [226]

   The complainant slept the night but woke early and sent text messages to SO at about 7:00 am, including the following:

6. [227]

   Other text messages to SO at around the same time were as follows:

7. [228]

   The complainant gave evidence that at approximately 9:00 am she told her sister, who was two years older, about having been sexually assaulted by the Uber driver while she was asleep. The sister confirmed this. She described the complainant crying, trembling and visibly upset as her description of events emerged, a few words at a time, through her sobbing. The sister was not cross-examined. The complainant discussed the matter further with SO and other girlfriends during the day, including in numerous text messages between herself and SO. RD, a school friend, received a FaceTime call from the complainant shortly after 11:00 am on which the complainant said that “on her way home in the Uber she woke and the Uber driver was fingering and kissing her”. RD was cross-examined about the complainant’s level of intoxication during the previous evening at the Star Bar but not about the complainant’s FaceTime call the next morning.

8. [229]

   The complainant eventually related the events to her mother at about 4:00 pm. The mother said this:

9. [230]

   Taken as a whole, this was an immensely powerful body of recent complaint evidence. The complainant’s allegations of sexual acts without consent while she was asleep commenced immediately after the acts to which the applicant admitted. The substance of the complaints was consistent, both as between the several statements made by the complainant and with her evidence at trial. To a significant extent there were contemporaneous electronic records of text messages that conveyed complaints and/or that referred to other oral communications to similar effect. In addition to the complainant herself, the four witnesses to whom the complaints were made were articulate and apparently credible. SO and the complainant’s mother and sister described her distress in vivid terms. Each of them was very close to the complainant and could be expected to have known if she was dissembling. The sequence in which the complaints developed was precisely what would be expected. First, the complainant sent urgent distressed messages to her closest school friend. Then she confided in her older sister. Last – and with encouragement from the others – the complainant reported the events to the authority in her household with respect to such a matter, her mother.

Scope for challenge to the complaint evidence

1. [231]

   The applicant’s trial counsel clearly perceived the futility of disputing the fact that the complaints were made. He did not challenge either the complainant or any of the four principal complaint witnesses on that basis. With respect to the complainant’s demeanour when telling her friends and family what had occurred and the content of the complaints, counsel had no basis upon which to challenge the witnesses and did not attempt to do so.

2. [232]

   No forensic purpose would have been served by defence counsel putting to the complainant that her complaints to friends and family were the product of regret and shame. The full statement of the matter to be put to the complainant in the suggested line of questioning would be: You were awake and consenting – and then felt regret and shame for the consensual acts after changing your mind when the acts had taken place. The first half of this composite proposition, namely, that she actually consented, was put to the complainant in protracted fine detail and rejected at every question. There was no basis upon which the composite question could sensibly be asked when the first half of it, which would be an essential constituent to identify the source of the postulated regret or shame, had already been rejected.

3. [233]

   The proposed line of questioning would have added nothing to the applicant’s direct challenge to the complainant’s account of having slept until the intrusive sexual acts woke her, that challenge having been made by putting the applicant’s case to her in detail.

4. [234]

   The futility of such questioning can be seen by considering the inevitable answer. Of course the complainant would say that her immediate complaints to friends and family were not mere manifestations of regret or shame. Of course she would say that there was nothing for her to have felt regret or shame about, because she had been asleep, not consenting – as she testified in chief and as she maintained throughout rigorous questioning.

5. [235]

   There would have been no realistic possibility of the jury accepting that the complaints could be explained as the product of regret or shame. On the applicant’s case, the proposition would have to be that the complaints were an elaborate performance, because in fact the complainant had initiated the kissing and penetration about which she protested. It would surely appear to the jury that she could not have conceived of practising such a deception within a minute of getting out of the car or that, in the same timeframe, she could have worked herself into a feigned state of distress in which to send video images of herself to SO. It would be an incoherent proposition that an apparently intelligent and level headed young woman, as the complainant appeared to be through the substance of her evidence, could have thought that any potential embarrassment about the events in the car, known only to the applicant and herself, could be effectively covered up or misrepresented by immediately telling her school friends and later her family about those events, of which otherwise they would never learn.

6. [236]

   The jury acting reasonably could not have reconciled the supposed fabrication of complaint with the level of distress that the complainant exhibited, appearing genuine to those who were closest to her. Not knowing that anyone observed her, she stood at the front of her house trying to compose herself before entering. The jury could not have reconciled the suggested line of questioning with the acceptance by SO at 1:50 am and by the complainant’s sister and mother the next day that she was deeply upset. Her immediate distress was a compelling refutation of the applicant’s case that this was a reckless young woman who thought it would be “crazy”, on the spur of a moment, to take part in sexual acts with a stranger in the back of his car and who participated enthusiastically, then equally suddenly changed her mind and became inconsolably upset.

No miscarriage of justice

1. [237]

   In order to succeed on this appeal ground the applicant must show that counsel’s failure to challenge the complainant on the basis discussed above should cause the Court to conclude that “on any other ground whatsoever there was a miscarriage of justice”: s 6(1) of the Criminal Appeal Act 1912 (NSW). In Nudd v The Queen [2006] HCA 9 Gleeson CJ cited two authorities that identify a category of trial defects, which his Honour termed failures of process, that may give rise to a miscarriage of justice. First, at [4], his Honour cited a passage from the judgment of the Court in Davies and Cody v The King (1937) 57 CLR 170 at 180; [1937] HCA 27. The following is an extract from that passage:

2. [238]

   Secondly, at [5] Gleeson CJ quoted from the judgment of Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 516; [1974] HCA 35. The passage cited commenced with consideration of the ground that a verdict is unreasonable and unsupported by the evidence. Barwick CJ continued as follows

3. [239]

   In Nudd v The Queen Gleeson CJ then said this at [8]-[9]:

4. [240]

   In the same case and to similar effect, Gummow and Hayne JJ made these observations at [24] (citations omitted):

5. [241]

   In the present case I do not find it necessary to decide whether counsel’s omission to cross-examine the complainant to the effect now suggested by the applicant was inadvertent or intentional or, if the latter, whether it was rational. The ground can be resolved irrespective of the reasons for the omission. It can be resolved by determining whether the absence of cross-examination on the suggested basis resulted in an unfair trial “considered by reference to an objective standard”, as contemplated by Gleeson CJ.

6. [242]

   In Hofer v The Queen [2021] HCA 36 at [111]-[123] Gageler J considered a large number of authorities in which there have been stated and applied the principles upon which an appellate court is to discern whether a miscarriage of justice has occurred. At [114]-[115] his Honour accepted the formulation from the judgment of Gummow and Hayne JJ in Nudd v The Queen, as quoted above and now repeated:

7. [243]

   At [120]-[121] Gageler J collected from the authorities the following range of expressions of the test for a miscarriage of justice, which I quote omitting his Honour’s citations:

8. [244]

   Applying the above tests, for the reasons given at [232]-[236] above, I do not think that defence counsel’s omission to cross-examine the complainant on the lines suggested by the applicant could realistically have affected the verdicts of guilt that were returned against him. There is no realistic possibility of a causal connection between the absence of this line of cross-examination and the guilty verdicts. If the suggested cross examination had taken place it would have been of no consequence.

Defence final address; summing up

1. [245]

   In final address defence counsel urged upon the jury the applicant’s evidence that the complainant first invited and then accepted and responded to his sexual acts, until a point at which she broke off their physical engagement and left the car. Towards the end of his address counsel made the submission that Harrison J has set out at [163] and which I will repeat for ease of reference (with emphasis added):

2. [246]

   This is the argument for which the applicant says the ground work should have been laid by cross examination of the complainant to similar effect. It is the argument of which the applicant says he was deprived by reason of the judge’s subsequent direction, brought about by the omission of that cross-examination. The argument could not have assisted the jury to decide whether there was a reasonable doubt about the complainant’s denial of consent. Counsel said, in effect, that if the jury accepted that she was initially willing about what took place “sexual wise” (or, implicitly, if they thought such willingness was reasonably possible), then the complaints were evidence that “she changed her mind” and “evidence of her regret at that time. Regret at what she did”. The argument depended upon the jury finding, from an evaluation of all the evidence, that it was at least reasonably possible that the complainant was awake and gave consent – otherwise, there was no voluntary conduct of her own for which regret could have been felt. This was merely a submission as to how the complaint evidence could be characterised if a reasonable possibility of consent appeared.

3. [247]

   Further, in the form of this closing argument the proposition was just as hopeless as it would have been in the form of questions put during cross-examination. For the reasons given at [235]-[236] above, there was no realistic possibility of the jury accepting that the complainant’s distressed communications with her friends and family were performative or generated by anything other than a genuine belief that she had been violated in the manner she described.

4. [248]

   The learned trial judge considered that it was not open to the applicant to submit that the complaints were “a repetition of her regret, her shame of what occurred” in circumstances where that proposition had not been put to the complainant in cross-examination. The judge therefore directed the jury in the following terms (as quoted by Harrison J and now repeated for ease of reference):

5. [249]

   It was correct that the complainant had not been asked any such questions and that there was no evidence that she felt the emotions of regret or shame. It was correct that she said her complaints had been about what happened. Rather than saying that the submission “impermissibly invites speculation”, in my view it would have been more accurate to say that the submission involved a characterisation of the complaints that depended upon whether the jury were unpersuaded to the requisite standard that the complainant had been asleep and not consenting.

6. [250]

   Harrison J has referred to the exchange between the trial judge and counsel that preceded the above direction. I do not regard the terms of that discussion as material to the ground of appeal. What the trial judge said to counsel reveals why she thought the direction was necessary but the objective fact is that it was given and this Court must consider whether it amounted to a miscarriage of justice, the direction having followed from the omission of counsel to cross-examine the complainant in the way that the applicant says should have occurred. The direction may be regarded as having weakened or even neutralised counsel’s submission. No miscarriage of justice arose because the submission was in any event neutral and ineffectual. It was incapable of carrying any logical or reasonable persuasion with the jury for the same reason that the proposed line of cross-examination would have been so incapable. As with the omitted questioning, there is no realistic possibility of a causal connection between the trial judge’s directions concerning counsel’s argument and the guilty verdicts.

The proviso

1. [251]

   In Hofer v The Queen at [123] Gageler J explained the relationship between, on the one hand, a finding that a miscarriage of justice has been established and, on the other hand, a conclusion “that no substantial miscarriage of justice has actually occurred” under the proviso. Part of [123] has been quoted above; the full paragraph is as follows (emphasis added):

2. [252]

   On the view that I take of the applicant’s ground concerning counsel’s omission to cross-examine in the manner that the applicant suggests, there is no occasion to consider the proviso. If, contrary to my view, what occurred in that respect should be regarded as a miscarriage of justice I would be comfortably satisfied that the preconditions for application of the proviso are met. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 the High Court explained how the proviso is to be applied, in the following passages (some citations omitted):

3. [253]

   The summary of the evidence given earlier in these reasons and my analysis of the strength of the prosecution case and of the outstanding improbabilities in the applicant’s account are sufficient to explain my conclusion that the accused was proved guilty on all three counts beyond reasonable doubt. The necessary prerequisite to application of the proviso, as referred to at [41]-[44] of the High Court’s judgment in Weiss v The Queen, is satisfied. There was no “significant denial of procedural fairness at trial” (as referred to at [45]) nor any “serious breach of the presuppositions of the trial” (as referred to at [46]). If there was a miscarriage of justice in the respect complained of by the applicant concerning omission of a possible line of cross-examination, I am satisfied that no substantial miscarriage actually occurred.

The application for leave to appeal against sentence

1. [254]

   The only ground for which leave is sought to appeal against sentence is as follows:

2. [255]

   The objective seriousness of the offending sufficiently appears from the summaries of the complainant’s evidence that have been given in Harrison J’s judgment and, above, in my own reasons. The jury evidently accepted the complainant’s evidence beyond reasonable doubt. The learned trial judge identified some significant features of objective seriousness in the following passage:

3. [256]

   Those findings were open to her Honour, as was the conclusion that the point at which the applicant turned his Uber status to off-line “marks the commencement of any planning of sexual offending”. It is an inescapable inference that he intended to assault the complainant sexually from the time that he drove her away from her home and towards the parking bay on Ramsgate Avenue. Her Honour justifiably drew the following conclusion:

4. [257]

   The factor of breach of trust and the requirement for general deterrence were not overstated. The civil and social life of the community would be very greatly diminished if a girl in her late teens following the directions of alert and protective parents could not go out in the city of Sydney at night without running the risk of sexual predation by a commercial transport driver. This case called for a sentence that would serve as a strong deterrent to others who might think that they could use a position as a driver to prey upon young female passengers.

5. [258]

   The complainant’s victim impact statement described ongoing intrusion of disturbing thoughts concerning the sexual assault. Her studies in her final year of high school were disrupted, her enjoyment of graduation was muted and she has understandably been left with considerable wariness of the opposite sex. Damage to the community extends to the complainant’s parents, to whom it must appear an outrage that their daughter should be violated as she was, within 250 m of their home, by a driver whose breach of trust defeated their conscientious endeavours to keep her safe.

6. [259]

   The applicant’s personal background and antecedents were unremarkable. He had no prior convictions. Her Honour accepted that he was unlikely to have similar employment on completion of his sentence and therefore unlikely to be in a position to reoffend in a similar way. He has no prior record and the learned judge accepted that there was a low risk of reoffending, in a general sense. The judge accepted that specific deterrence was not a significant consideration. On the other hand, her Honour took into account that the applicant had expressed no remorse, that he continued to deny the offending and did not accept culpability. He exhibited no insight into his wrongdoing.

7. [260]

   In his submissions in support of this ground the applicant has listed numerous subsidiary matters. He asserts that her Honour treated the fact that there were multiple offences as an aggravating factor. That is not so. Her Honour correctly took into account that “each offence occurred not in isolation but in the context of the one period of assault”. The judge expressly stated that she was “mindful, however, to not elevate any one offence by incorporating into consideration any other act”. The applicant’s subsidiary points include a catalogue of complaints about the trial that had no apparent bearing upon sentencing, such as “wrong DNA evidence … mislead sentencing process” and “jury given ‘reckless’ direction but after verdict sentence was made due to ‘actual knowledge’”. He disputes the judge’s findings that he acted in breach of trust and that he planned the sexual offending from when he switched to “off line”; he says that the complainant’s victim impact statement was wrongly received; he complains about lack of communication with his counsel before the sentence hearing; he asserts that the learned judge should have disregarded his “background and visa status” and should have taken into account his custody conditions. I have considered all of the subsidiary points, which extend over nine pages, and I find no substance in any of them. So far as the applicant contests the learned judge’s findings of fact concerning the objective circumstances of the offending, the findings were open on the evidence her Honour had heard at trial.

8. [261]

   As stated in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], a conclusion of manifest excess is only to be drawn if it is “plainly apparent” and, having been drawn, may “not admit of amplification”. Taking into account all relevant considerations I am far from persuaded that the aggregate sentence imposed on the applicant was manifestly excessive. That proposition is certainly not plainly apparent, in my view. I would grant the applicant leave to appeal against his sentence but dismiss the appeal.

Orders

1. [262]

   I propose the following orders:

   1. (1)

      Grant leave so far as necessary to appeal against both conviction and sentence.

   2. (2)

      Dismiss the appeal against both conviction and sentence.

2. [263]

   YEHIA J: I have had the considerable advantage of reading the judgments of Harrison and Fagan JJ and I am grateful for their Honours’ summary and analysis of the evidence, as well as the references to applicable principles.

3. [264]

   I agree with Harrison J’s reasons and conclusions concerning all the grounds that he would dismiss. I do not agree with Harrison J’s conclusion with respect to ground 16 that counsel’s failure to put a proposition (or propositions) to the complainant that her immediate complaints were a product of shame and regret, either alone or taken together with the trial judge’s direction that purported to cure it, resulted in a miscarriage of justice which deprived the applicant of a chance of acquittal.

4. [265]

   Instead, I agree with Fagan J that the conviction appeal should be dismissed. I agree with Fagan J’s analysis of the evidence and his reasons. I wish to add some brief observations with respect to the direction given by the trial judge which is set out in the judgment of Fagan J at [248]. This direction flowed from counsel’s failure to put the subject proposition.

5. [266]

   Firstly, the failure to put a proposition that the complainant’s immediate complaints were a product of shame and regret, was not a failure to put instructions but rather a failure to put a case theory capable of suggesting an alternative explanation for the complaint evidence. This was not a case where, for example, there was a failure to put a proposition about which the accused later gave evidence. The failure to put the proposition was either inadvertent or an exercise in forensic judgment, but it could not be considered an example of recent invention on the part of the accused.

6. [267]

   Secondly, an accused should not bear the burden of negative inferences that arise as a result of errors made by counsel, or counsel’s exercise of forensic judgment, a matter over which the accused may have no control.

7. [268]

   Thirdly, trial judges should be very cautious about commenting on the failure of counsel to put a proposition, particularly where the failure may be inadvertent or an exercise in forensic judgment.

8. [269]

   I am not however persuaded, in this case, that the failure to put the proposition, or the trial judge’s direction purporting to cure the failure, resulted in a miscarriage of justice.

9. [270]

   With respect to the appeal against sentence, I agree with the orders proposed by Harrison J at [205].