Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dogan v R [2020] NSWCCA 151 Hearing dates: 8 May 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Before: R A Hulme J at [1] Fagan J at [8] Cavanagh J at [22] Decision: The application for an extension of time in which to file the notice of application for leave to appeal is refused. Catchwords: CRIME — appeals — appeal against conviction — extension of time in which to appeal — point not raised below — where vulnerable complainant gave evidence at trial in manner provided by Ch 6 Pt 6 of the Criminal Procedure Act 1986 (NSW) — where all parties consented to course taken at trial — whether trial judge first required to form independent satisfaction of condition in s 306P(2) — whether miscarriage of justice Legislation Cited: Crimes Act 1900 (NSW), ss 86, 94, 97, 99, 112, 192E Crimes Amendment (Cognitive Impairment – Sexual Offences) Act 2008 (NSW) Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 10(1)(b) Criminal Appeal Rules, rr 3A, 4, 23C Criminal Procedure Act 1986 (NSW), Ch 6 Pt 6, ss 3, 294B, 306O, 306P, 306S, 306V, 306ZJ Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW) Evidence Act 1995 (NSW), ss 59, 112 Evidence (Children) Act 1997 (NSW) Succession Act 2006 (NSW), s 59 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 ARS v The Queen [2011] NSWCCA 266 CF v R [2017] NSWCCA 318 Hilton v Legal Profession Admission Board [2017] NSWCA 232 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Panchal v R; R v Panchal [2014] NSWCCA 275 Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 Texts Cited: Crimes Amendment (Cognitive Impairment – Sexual Offences) Bill 2008 New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 Category: Principal judgment Parties: Hakan Dogan (Applicant) Regina (Respondent) Representation: Counsel: P Lange (Applicant) M Millward (Respondent) Solicitors: Kings Law Group (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2014/52802 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 23 February 2017 Before: Noman SC DCJ File Number(s): 2014/52802 Judgment 1. R A HULME J: The sole issue in this matter is whether a cognitively impaired complainant could give evidence in the form of previous representations made in a recorded interview with a police officer. Giving evidence by that fashion is permitted if the provisions of Ch 6 Pt 6 of the Criminal Procedure Act 1986 (NSW) applied. Those provisions would apply if, pursuant to s 306P(2), the court was "satisfied that the facts of the case may be better ascertained if the person's evidence is given in such a manner". 2. What occurred at trial, and how it came about that the complainant did give evidence by the alternative means mentioned, is well described in the judgments of Fagan and Cavanagh JJ, which I have read in draft. 3. I agree with Fagan J that the learned trial judge was not required to inquire into the question posed in s 306P(2) once she had been given clearly to understand that the parties agreed that the complainant would give evidence by alternative means. It was sufficient for her Honour to be satisfied of the s 306P(2) precondition because that was the agreed position of counsel for the Crown and the three accused. True it is that she did not explicitly state that she was satisfied, but there was no requirement for an express recording of the fact: Panchal v R; R v Panchal [2014] NSWCCA 275 at [61] (Leeming JA, Fullerton and Bellew JJ). In hindsight, it may have been prudent for her Honour to state briefly the fact, if only to avoid an "armchair" appeal being brought (as has occurred). 4. Even if there was non-compliance with a pre-requisite for the application of the provisions of Ch 6 Pt 6, it was open for the complainant to give evidence by the tender of his prior representations because, as has been noted by Fagan and Cavanagh JJ, the applicant agreed with that course being taken. 5. The applicant does not contend that the complainant was not cognitively impaired and nor does he contend that the facts of the case were not better ascertained by the recorded interview being replayed. He does not suggest that there was not agreement of all concerned at the trial that this should occur. He also accepts that the complainant was otherwise permitted to give evidence by AVL link from a remote location. [1] 6. It is abundantly clear in these circumstances that there was no miscarriage of justice. Accordingly, there is no merit in the application for leave to raise a matter not raised in the court below (Criminal Appeal Rules, r 4), in the application for leave to appeal against the conviction (Criminal Appeal Act 1912 (NSW), s 5(1)(b)), and in the application for an extension of time. 7. The appropriate order is to refuse the application for an extension of time in which to file the notice of application for leave to appeal. 8. FAGAN J: Cavanagh J's judgment, which I have had the advantage of reviewing in draft, sets out the circumstances in which this application for leave to appeal is brought. I gratefully accept his Honour's summary of the facts and issues and I can state my own conclusions briefly. The sole proposed ground of appeal is: Her Honour erred in permitting the complainant to give evidence in the manner provided for by Chapter 6, Part 6 of the Criminal Procedure Act 1986 without first satisfying herself that the facts of the case may be better ascertained if the person's evidence is given in such manner, as mandated by s 306P(2) Criminal Procedure Act 1986. 1. The applicant's argument concerns only the reception in evidence of the complainant's interview by police. No ground of appeal is raised with respect to the complainant having given his oral evidence by audio visual link from a room remote from court. 2. The following provisions within Ch 6, Pt 6 of the Criminal Procedure Act 1986 (NSW) are central to the proposed ground of appeal (emphasis added): Division 1 Preliminary 306P Application of Part (2) To the extent that this Part applies to cognitively impaired persons, this Part applies (unless a contrary intention is shown) in relation to evidence given by a cognitively impaired person in the manner provided by this Part only if the court is satisfied that the facts of the case may be better ascertained if the person's evidence is given in such a manner. Division 3 Giving evidence of out of court representations 306R Evidence to which this Division applies (1) This Division applies to evidence of a previous representation of a vulnerable person made in the course of an interview during which the person is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence. 306S Ways in which evidence of vulnerable person may be given (1) Subject to this Part, a vulnerable person may give evidence of a previous representation to which this Division applies made by the person in any criminal proceeding wholly or partly— (a) in the form of a recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court […]. 1. On the first day of the trial, shortly before the jury was empanelled, the prosecutor informed the trial judge that the complainant was watching his recorded interview and that it was proposed to confer with him when he had completed viewing it. In response to a question from her Honour the prosecutor confirmed that "the complainant being classified as a vulnerable person will be giving evidence by way of recording [and] CCTV". After the accused had been arraigned and the jury selected, her Honour gave preliminary instructions to the jury about their role in the trial. They were then released until the following day to enable procedural matters to be discussed in their absence. The Crown informed the Court that the complainant would be the first witness called after opening addresses the next day. 2. At the commencement of proceedings on the second day of the trial there was discussion between the trial judge and counsel as to how the complainant's intellectual capacity should be referred to. The context of this discussion is indicated by both her Honour and counsel making express reference to "the complainant as a vulnerable person" and by counsel citing one of the provisions of Ch 6 Pt 6. At this point, immediately before the Crown's opening, all three defence counsel were clearly aware that those provisions were to be utilised by playing back to the jury the recorded police interview of the complainant and by adducing his oral evidence on CCTV. None of the defence counsel raised any objection to this course, or voiced any concern as to whether the statutory prerequisites for it were satisfied, or suggested that the trial judge would have to inquire into the question whether "the facts of the case may be better ascertained if the person's evidence is given in such a manner", in order to satisfy herself regarding that question from evidence, independently of agreement between the parties. 3. After opening addresses from the Crown and from two of the defence counsel, the prosecutor tentatively expressed a concern as to whether the complainant had the capacity to give sworn evidence. Almost immediately he retracted the concern. In doing so the prosecutor referred to an opinion of Professor Hayes that apparently contained an assessment of the complainant's mental capacity. The report was not provided to her Honour and no oral summary of it was offered. Her Honour said: All of you at the bar table have a considerable advantage over me at this stage, because you Mr Crown have not only had an opportunity to see the recorded interview, which would have a number of occasions of questions being asked and responses given that would found the bulk of his evidence-in-chief, but you also have had an opportunity to conference him. I am assuming that in relation to each of the defence counsel, they have had an opportunity to view the interview as well. Is there any suggestion based upon that in the report of [Professor] Hayes that would indicate there is a question about his capacity? 1. All counsel indicated that they had no concerns about the complainant's capacity to be sworn. No counsel suggested that her Honour was mistaken in her assumption that they had watched and listened to the interview and read Professor Hayes' report. If, for the purposes of s 306P(2), any counsel wished to contest that "the facts of the case may be better ascertained if the [complainant's] evidence is given" by playing the recorded interview, it would be expected that they would have invited her Honour to view the interview and read Professor Hayes' report. Although those items of evidence had been referred to in the context of discussion about the complainant's capacity to be sworn, self-evidently they would be relevant to determining the question of how "the facts of the case may be better ascertained" if it was necessary for the trial judge to satisfy herself about that from primary evidence. If her Honour was required to examine that question upon the basis of primary evidence, it may also have been relevant for her to hear the complainant answer questions on the voir dire. No counsel suggested that that should be done. 2. It was the duty and responsibility of all counsel to know the terms of the relevant sections and to raise with the learned trial judge any impediment to their engagement. When there was no objection to the tender of the interview and no submission that the prerequisites for its reception had not been met, her Honour was entitled to proceed on the understanding that counsel were familiar with the applicable provisions and agreed that their requirements were satisfied. From the fact that the learned trial judge admitted the recorded interview into evidence in these circumstances, it is an inescapable inference that her Honour was satisfied that all counsel agreed the statutory conditions for admissibility were fulfilled. 3. Where counsel for the Crown and the accused consent to evidence being given in accordance with s 306S(1)(a) and there is no tender of evidence directed to the question of whether "the facts of [the] case may be better ascertained" by the tender of the complainant's interview, the requirement of s 306P(2) that the court should be satisfied does not have the effect that the parties' consent is insufficient for such satisfaction or that the court must inquire beyond the consent and make an independent assessment on evidence. The agreement of the Crown and defence counsel is a sound basis upon which the Court may be satisfied of the condition in s 306P(2). 4. In a statute that requires a court to be satisfied of some matter as a prerequisite to making a procedural or substantive determination, it may appear from the terms and context of the provision that the prerequisite has been stipulated for the protection of some person or interest other than any of the parties. Such a statute may be open to the interpretation that the court cannot arrive at the requisite satisfaction merely on the basis of the parties' consent but must draw its conclusion independently, from evidence. The prerequisite in s 306P(2) is not of that nature. It limits the occasions upon which a vulnerable complainant may give his or her evidence by the tender of an interview. It is not apparent that the limitation is prescribed for the benefit or protection of any person or interest other than the Crown and the accused, principally the latter. The provision in s 306S(1)(a) for the tender of an interview is for the benefit of the vulnerable person. The limitation under s 306P(2) that the Court should be satisfied that the facts may be "better ascertained" by this means is primarily a protection for the benefit of the accused. In those circumstances there is no reason why the court should not reach the required satisfaction upon the basis of the parties' consent. 5. If, contrary to the conclusions expressed above, it should not be inferred that her Honour was satisfied of the prerequisite in s 306P(2) on the basis of counsel's consent, in my view that consent in any event operated in its own right to bring about the result that the recorded interview was properly received. Aside from Ch 6 Pt 6 of the Criminal Procedure Act, the recorded interview would have been "not admissible" as hearsay by force of s 59(1) of the Evidence Act 1995 (NSW), as follows: 59 The hearsay rule – exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. 1. The interview would not fall within any of the exceptions to the hearsay rule provided for in the Evidence Act itself. However, it is settled law that the words "not admissible", as they appear in numerous provisions of the Evidence Act, in particular s 59, mean "not admissible over objection": Perish v R; Lawton v R [2016] NSWCCA 89 at [261]-[272]; Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [57]; Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]. As there was no objection to the tender of the recorded interview it was properly received irrespective of the operation of Ch 6 Pt 6 of the Criminal Procedure Act. 2. I do not accept the applicant's submission that s 306P(2) has the effect of forbidding the tender of a vulnerable person's recorded interview unless the prerequisite "only if the court is satisfied etc" is met – and the provisions of Ch 6 Pt 6 are thereby made applicable. If the trial judge did not reach affirmative satisfaction that the facts may be "better ascertained" by tender of the interview and if that led to Pt 6 – in particular s 306S(1)(a) – not applying, the only result would have been that those facultative provisions would not have been engaged to overcome the hearsay rule. That would not have prohibited the interview being received, because s 59 of the Evidence Act would have had no exclusionary effect in the absence of an objection to the tender. My view on this point substantially accords with the way in which Cavanagh J has dealt with it at [90]-[91] and [98]-[101] of his Honour's judgment. 3. For these reasons I find the appeal ground lacking in merit. I would similarly refuse the extension of time. 4. CAVANAGH J: The applicant, Hakan Dogan, seeks leave to appeal against his conviction for a number of serious offences committed between 1 September 2013 and 4 November 2013. 5. The complainant was his neighbour. The complainant suffers from a mild intellectual disability as well as a physical disability affecting his mobility. 6. The complainant's evidence was given by means of the playing of a pre-recorded interview and cross-examination by audio-visual link ("AVL"). The sole ground of appeal relates to that manner of giving evidence and an alleged irregularity in the conduct of the trial. 7. The applicant requires an extension of time to file his notice of application for leave to appeal, leave to appeal against conviction as well as leave for the ground of appeal to be allowed, having regard to s 5(1)(b) of the Criminal Appeal Act and rr 3B and 4 of the Criminal Appeal Rules. 8. The applicant was charged with the following offences: 1. Counts 1 and 6 — specially aggravated detain for advantage, in company and occasioning actual bodily harm: Crimes Act 1900 (NSW) s 86(3). 2. Count 2 — aggravated demand money with menaces with intent to steal, in company: Crimes Act s 99(2). 3. Count 3 — robbery in company: Crimes Act s 97(1). 4. Count 5 — aggravated break, enter and steal: Crimes Act s 112(2). 5. Count 7 — steal from a person: Crimes Act s 94. 6. Counts 8 and 9 — obtain property by deception: Crimes Act s 192E(1)(a). 1. The applicant pleaded guilty on counts 8 and 9. The applicant was found guilty on counts 5, 6 and 7. In respect of counts 1 to 3, the applicant was found not guilty on each count but guilty of the statutory alternatives, namely: 1. Count 1 — aggravated detain for advantage, occasioning actual bodily harm: Crimes Act s 86(2)(b). 2. Count 2 — demand money with menaces with intent to steal: Crimes Act s 99(1). 3. Count 3 — robbery: Crimes Act s 94. 1. The applicant was sentenced by her Honour, Judge Noman SC, in the District Court at Penrith on 9 June 2017. After nominating indicative sentences, her Honour sentenced the applicant to an aggregate sentence of 9½ years with a non-parole period of 6½ years from 14 February 2017. The non-parole period will expire on 13 August 2023 and the sentence will expire on 13 August 2026. Circumstances of the offending 1. As the applicant was sentenced following his conviction, the trial judge was required to determine the facts for the purposes of the sentencing process. I will summarise the factual background having regard to the sentencing judgment and relevant parts of the transcript. 2. In 2013, the complainant was 23 years of age. He lived alone at 108 Beresford Road, Greystanes in a house formerly owned by his parents who had died in 2005 and 2006. As he suffered from a mild intellectual disability, in 2012 the New South Wales Trustee and Guardian ("the Public Trustee") had been appointed to look after his assets. 3. Prior to the events the subject of the offending, he developed a friendship with his neighbour, the applicant. 4. On 1 September 2013, the complainant went to the casino with the applicant and the applicant's friend, the co-offender, Murat Ilbay. The complainant lent $100 to each of the applicant and Mr Ilbay. They lost all their money at the casino. Having lost all their money, the applicant asked the complainant if he would like to make some money. The complainant agreed. According to the complainant the applicant then called "the bikies". 5. The next day, the complainant went to the applicant's house and told him that he wanted to pull out of the arrangement. The applicant told him he could not pull out. The applicant said that the complainant now owed the bikies $15,000 because the applicant had already bought the drugs. 6. The next day, the applicant called the complainant back to his house. Another alleged co-offender, Ahmad Abdullah, also attended the applicant's house. Whilst they were there, the applicant said to Mr Abdullah that the complainant was not coming up with the money. The complainant said that Mr Abdullah then punched him in the eye. The applicant told the complainant that he could not leave until he paid and that there would be big problems if he did not pay. 7. The complainant slept the night at the applicant's house. He said that he did not leave because he was scared of the applicant. He then agreed to pay the $15,000, saying he would try to withdraw the money from his bank account. 8. The complainant called the Public Trustee on three occasions on 2 September 2013 to ascertain his balance and seek that money be transferred for a holiday and then furniture. 9. On the same evening (2 September 2013), the applicant demanded the complainant's keys and phone. The complainant said he gave them to the applicant, as well as his alarm code. At the time, there were three persons in the house, being the applicant, Mr Ilbay and Mr Abdullah. The complainant said that he was scared. He did not know what they would do to him if he refused. 10. The applicant then used the keys and code to enter the complainant's house and steal a pair of Oakley sunglasses, a silver Nikon camera and an address book. 11. The next morning (3 September 2013), the complainant and Abdullah went to the Commonwealth Bank at Merrylands where the complainant attempted to withdraw $15,000. He was not allowed to do so as the account was in the control of the Public Trustee. The complainant and Mr Abdullah then went to the Public Trustee's office in Parramatta where the complainant asked for a release of $15,000. Again, his request was refused. He then withdrew $300 from an ATM which he gave to Mr Abdullah. 12. Although the applicant did not go to the bank or the Public Trustee with the complainant, he told the complainant to go and get the money and told Mr Abdullah to go with him. 13. After the first unsuccessful attempt, Mr Abdullah and the complainant returned to the applicant's house where the complainant again stayed. There was a further unsuccessful attempt to obtain money from the Commonwealth Bank the next day. Following that unsuccessful attempt, the complainant and Mr Abdullah went to Mr Abdullah's house. 14. During the evening, the complainant was again asked if he had come up with the money. According to the complainant, he was forced to stay the night at Mr Abdullah's house before returning to the applicant's house the next day. On return to the applicant's house, the applicant returned the Sim card to the complainant as well as informing him that he had paid the bikies $2,000 and that the complainant thus owed him $2,000. 15. At some point during this period of days the applicant told the complainant that he had received a phone call from a bikie who had told him that he had to hurt the complainant. The complainant said that his hands and feet were restrained and that the applicant burnt him on the hand. He was threatened that his finger would be cut off with scissors and a machete was produced by the applicant. 16. Mr Ilbay then threatened the complainant with an object to his head that he was told was a gun, although the complainant said that he did not see a gun. The complainant said that he thought he might be killed. He also said that he subsequently lied about how he got the injury as the applicant had told him not to tell or else there would be big trouble. 17. After all this occurred, the complainant was forced to stay the night at the applicant's house. He was not allowed to go home for five or six nights in total. 18. Having been unsuccessful in his attempts to extract $15,000 from the complainant, the applicant told him that he had arranged with the bikies for the complainant to pay him directly in the sum of $400 a fortnight (to pay off the $15,000 debt to the bikies). 19. The applicant told the complainant that he should ask other people for money. When the complainant was allowed to go home, he did just that. 20. He borrowed $500 from a neighbour and $400 from his godfather. He gave $350 directly to the applicant's girlfriend because he was told to do so by the applicant. The complainant withdrew a further $300 from an ATM and paid it to the applicant at a pub in Greystanes. The complainant continued to borrow money from persons such as his grandparents, neighbour and cousin and paid a further $500 to the applicant. 21. Indeed, the applicant drove the complainant to his grandparents' house in Greystanes so that he could obtain money from his grandparents. 22. Around this time, the applicant drove the complainant to a park in Doonside. He said to the complainant that if he paid $2,000 it would be all over. The complainant then continued to obtain money from his relatives for the purpose of paying money to the applicant. 23. The applicant ultimately revealed the sequence of events to his sister, but only after she had questioned the complainant about why he was asking for money and how he had sustained the injuries. 24. Counts 8 and 9, to which the applicant pleaded guilty, relate to the use by the applicant of a credit card belonging to the complainant's sister. She used the complainant's address as a mailing address for receipt of a new credit card. The applicant said that it was actually delivered to his address, although the trial judge did not accept this. In any event, it was accepted that the applicant had used the card twice for his own benefit. 25. The offending thus involved demanding and receiving money from the complainant, threatening him with extreme violence, such as the use of a machete or from "the bikies", perpetrating violence upon him, such as punching him in the eye, tying him up and burning his hand and detaining him against his will during which time he was scared. 26. Whilst the complainant was the Crown's principal witness, a number of other witnesses were called by the Crown including: 1. the complainant's grandfather, who observed the burn and bruising to the eyes; 2. friends and neighbours of the complainant, from whom the complainant borrowed money at the relevant time; 3. the complainant's godfather, who also lent money to the complainant; 4. the complainant's sister, who observed his black eye and, on learning that he had been borrowing money and questioning the complainant about it, was told that it was the neighbour who was demanding money, had burnt him and punched him in the eye and had stolen his phone; and 5. an employee of the Public Trustee who gave evidence of the complainant's attempts to convince the Public Trustee to release money to him at the very time of the offending. 1. As observed by the trial judge on sentencing, there was also other evidence supportive of parts of the complainant's evidence. Bank records reflected withdrawals. Medical records were, in part, consistent with the complaint of injury. There were photographs of the burn, albeit taken after it had partially healed. 2. Each of the applicant, Mr Ilbay and Mr Abdullah were arraigned for trial commencing 30 January 2017 at Parramatta District Court. Like the applicant, Mr Ilbay entered pleas of guilty to Counts 8 and 9. He was convicted on three counts being: 1. aggravated break, enter and steal: Crimes Act s 112(2); 2. specially aggravated detain for advantage: Crimes Act s 86(3); and 3. dishonestly obtain property by deception: Crimes Act s 192E(1)(a). 1. He was sentenced at the same time as the applicant. 2. Mr Abdullah was acquitted on all counts. The ground of appeal 1. There is only one ground of appeal as follows: "Her Honour erred in permitting the complainant to give evidence, in the manner provided for by Chapter 6, Part 6 Criminal Procedure Act 1986, without first satisfying herself that the facts of the case may be better ascertained, if the person's evidence is given in such a manner, as mandated by s 306P(2) Criminal Procedure Act 1986". 1. The appeal may give rise to a number of issues including: 1. the construction and application of s 306P(2) of the Criminal Procedure Act 1986 (NSW) ("the CPA"); 2. the relationship between Ch 6 Pt 6 of the CPA and the Evidence Act 1995 (NSW) having regard to s 306O of the CPA; 3. the construction and application of s 306ZJ of the CPA and its relationship with other provisions in Ch 6 Pt 6 including s 306P(2); 4. the application of r 4 of the Criminal Appeal Rules and whether there has been a miscarriage of justice; 5. whether an extension of time to seek leave to appeal should be granted, having regard to the lateness of the application and the explanation offered. 1. On commencement of the trial, the Crown Prosecutor made the following statement: "The complainant who forms the majority of the Crown case is a vulnerable person. The complainant is currently watching his recorded interview which is a not insignificant recording. There would be a need following his completing watching the recorded interview for me to have a short conference with him." 1. On the next day, the trial judge raised with the Crown Prosecutor his reference to the complainant being a vulnerable person in the context of giving the jury directions and whether the complainant should be referred to as a person with a mild intellectual disability or a person with an intellectual disability. All counsel for the co-accused accepted her Honour's use of the terminology "intellectual disability", although counsel for the applicant noted that the Crown Prosecutor would be describing the complainant as having a mild intellectual disability. The Crown Prosecutor said: "For what it is worth, based upon my experience dealing with the complainant yesterday and it is only my opinion of course, he strikes me as someone who is possessed of only a limited ability to cope with prolonged questioning and it is not unusual in these Courts for a vulnerable person, that there may be more frequent breaks than otherwise during the process. But I flag that for your Honour. It is only my observations and I do so to assist the Court, if that assistance is required." 1. After opening, the Crown Prosecutor returned to the complainant's evidence and the following exchange involving counsel for all co-accused ensued: CROWN PROSECUTOR: I'm sorry, your Honour. It may be prudent for your Honour to consider whether the evidence should be sworn or not from this complainant. He is someone with a disability. It's only a matter for abundant caution for, your Honour. HER HONOUR: On what basis do you suggest there is an issue about his competency to give sworn evidence? CROWN PROSECUTOR: In regards to the way he presents with his disability, your Honour. HER HONOUR: Well, you opened to the jury on that he had mild intellectual disability. CROWN PROSECUTOR: That's right. HER HONOUR: And what I understood is, there has been some report prepared which forms the basis of your assessment? CROWN PROSECUTOR: Yes, your Honour. HER HONOUR: Do you suggest that I should see the report or are you suggesting I need to make a determination by questioning him? CROWN PROSECUTOR: Upon reflection, and looking at the report of Professor Hayes, I don't press that submission. I apologise for any inconvenience. HER HONOUR: No, it is appropriate that you raise it if there is any concern, Mr Crown. I am looking at the provisions in the Evidence Act that you have directed my attention to in relation to assessing capacity under section 13 of the Evidence Act. CROWN PROSECUTOR: Yes. HER HONOUR: And what you were raising, I take it, is your concern because he has an intellectual disability, he may not have the capacity to understand the questions. And upon reflection you think that doesn't arise? CROWN PROSECUTOR: Upon reflection, your Honour, the opinion of Professor Hayes does not cause any concern in that regard. HER HONOUR: All of you at the bar table have a considerable advantage over me at this stage, because you Mr Crown have not only had an opportunity to see the recorded interview, which would have a number of occasions of questions being asked and responses given that would found the bulk of his evidence–in–chief, but you also have had an opportunity to conference him. I am assuming that in relation to each of the defence counsel, they have had an opportunity to view that interview as well. Is there any suggestion based upon that and the report of Ms Hayes that would indicate there is a question about his capacity? TYLER-STOTT: Your Honour, I didn't have any concerns until moments ago. HER HONOUR: I thought this is why we had the brief discussion a little moment ago that there was a requirement to confine the intellectual disability to "mild". TYLER-STOTT: Yes, your Honour. I had no concerns until my friend raised it, but I saw the report which the doctor opined that he had capacity. HER HONOUR: And you continue to have no concerns then? TYLER-STOTT: I do, provided my friend doesn't. CROWN PROSECUTOR: I raised it only for a matter of prudence, your Honour. That is all. HER HONOUR: Does anyone wish to be heard on that? CRAWFORD-FISH: No, your Honour. HER HONOUR: Mr Santisi? SANTISI: No, your Honour. 1. Chapter 6 Part 6 of the CPA was raised (in a different context from the context of this appeal) by counsel for Mr Ilbay as follows: CRAWFORD-FISH: Before we break, I oppose the providing of a transcript to the jury. I rely, in making that submission, on the Criminal Procedure Act section 306X, which gives your Honour the power to, if a vulnerable person gives evidence – I'm sorry it is 306Z. 1. The jury then returned and the trial judge said to the jury: "The Crown is now going to call the complainant, who you have heard referred to a number of times, [the complainant]. He is not going to come into the courtroom. The law provides that persons with an intellectual disability may give evidence in certain ways. His evidence is going to be, the main part of it, is going to be played by way of a recording that has been made prior to today. That recording will be played to you. Once that recording has been played to you, he will then give evidence via CCTV. I referred to it yesterday and the Crown referred to in it his opening, you will see it on the screens in front of you and also on the big screens, so he won't actually be coming into the courtroom." 1. The pre-recorded interview was then played, a transcript was provided to the jury and the complainant was cross-examined over the AVL. 2. Section 306P of the CPA is in the following terms: 306P Application of Part (1) To the extent that this Part applies to children, this Part applies (unless a contrary intention is shown) in relation to evidence given by a child who is under the age of 16 years at the time the evidence is given. (2) To the extent that this Part applies to cognitively impaired persons, this Part applies (unless a contrary intention is shown) in relation to evidence given by a cognitively impaired person in the manner provided by this Part only if the court is satisfied that the facts of the case may be better ascertained if the person's evidence is given in such a manner. 1. The applicant submits that the plain words of s 306P(2) of the CPA constrain the power to permit the giving of evidence in accordance with Ch 6 Pt 6 unless the Court is satisfied that the facts of the case may be better ascertained if the person's evidence is given in such a manner. 2. The trial judge did not carry out any enquiry or review the report of Professor Hayes prior to the complainant giving evidence as to whether the facts of the case may be better ascertained if the complainant's evidence was given in the manner provided by CPA Ch 6 Pt 6. There is no statement or finding by the trial judge as to her satisfaction in accordance with s 306P(2) of the CPA. 3. The Crown submits that it was not in dispute either that the complainant was a vulnerable person or that it was appropriate that he be permitted to give evidence in the way in which he did. The Crown submits that there is no requirement that the trial judge expressly record a finding in the terms contemplated by s 306P(2) of the CPA and, in any event, a fair reading of the transcript compels the conclusion that the trial judge was so satisfied. The Crown submits that the material before the trial judge was sufficient for her Honour to have formed the requisite opinion. 4. The Crown further submits that s 306ZJ(1) of the CPA is an answer to the ground of appeal and that, in any event, no miscarriage of justice has been established such that leave under r 4 of the Criminal Procedure Rules should not be granted. 5. The Crown relies on the decision of this Court in Panchal v R; R v Panchal [2014] NSWCCA 275 ("Panchal"). 6. In Panchal, the applicant raised a similar ground of appeal, that is, in permitting the complainant to give evidence in the manner provided for by Ch 6 Pt 6 of the CPA without first satisfying herself of the matters set out in s 306P(2), the trial judge erred. It was submitted that this was a fundamental defect in the trial which required the verdict to be quashed and that there be a re-trial. 7. The Court (Leeming JA, Fullerton and Bellew JJ) rejected the applicant's submissions and refused to grant leave under r 4 of the Criminal Appeal Rules. In doing so, it stated at [61]: "61. There is nothing in this ground. There is no requirement that the state of satisfaction required by s 306P(2) must be expressly recorded by the judge. It is very difficult to resist the conclusion that, very shortly after the trial judge confirmed that the complainant knew the difference between truth and falsehood, her Honour must have been satisfied, had her attention been directed to the point, that the course proposed by the Crown and to which the defence acquiesced was the better course for ascertaining the facts of the case. However, it is not necessary to resolve this ground of appeal on that basis. That is because s 306ZJ of the Act is in the following terms …" 1. The applicant submits that this Court should find that Panchal was wrongly decided. Consideration 1. I do not accept the Crown submission that a fair reading of the transcript compels the conclusion that, prior to the complainant's evidence being given, the trial judge was satisfied that the facts of the case may be better ascertained if the complainant's evidence was given in the manner agreed to by the parties. There is nothing in the transcript which would compel such a finding. Her Honour did not turn her mind to the issue of whether the facts may be better ascertained by the complainant giving evidence in a manner permitted under CPA Ch 6 Pt 6. There was no questioning of the complainant by the trial judge as to whether he understood right from wrong (as apparently occurred in Panchal). 2. The trial judge accepted what she was told. She did not receive or review the report of Professor Hayes. She did not undertake any process by which she could have formed an opinion independently of what she was told by counsel. 3. Having said that, I accept that, having regard to a number of exchanges during the complainant's evidence, if it was a requirement that the trial judge be so satisfied and her Honour had been directed s 306P(2) of the CPA, she would have been so satisfied (having regard to the means available to her to form a view). 4. For example, in the absence of the jury and during exchanges with counsel during the evidence, her Honour said: "You have indicated that you have some questions, I imagine there will be considerably more in cross-examination so I would ask counsel to be mindful of what appear to be some obvious limitations with this witness and that you ask him appropriately simple questions because I don't want to intervene unnecessarily by asking you to rephrase questions and to keep your language appropriate for his limitations. I don't obviously have the benefit of a formal assessment but his language skills and his comprehension are such that there is some type of disability. So just as you would question a child I would ask that you ask him appropriate questions, don't use double negatives." 1. Integral to this appeal is the proposition that the trial judge had no power to permit the complainant to give evidence by means of a pre-recorded interview and by AVL unless she formed the satisfaction said to be required by s 306P(2) of the CPA, even if the prosecution and accused agree on and consent to the evidence being given in that manner without reference to the trial judge. 2. In circumstances in which I have concluded that the trial judge would have formed a satisfaction that the facts of the case may be better ascertained if the complainant's evidence was given in such a manner (but did not because she was not asked to or directed to the provision), the question on this appeal is whether the complainant's evidence (the pre-recorded interview) was wrongly admitted, even though both parties agreed to the evidence being adduced in the manner proposed. 3. The background and scope of Pt 6 of Ch 6 of the CPA was briefly summarised in CF v R [2017] NSWCCA 318 at [34]–[35] (Gleeson JA): "34. Part 6 of Ch 6 of the Criminal Procedure Act is headed 'Giving of Evidence by Vulnerable Persons'. Pt 6 was introduced by the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW) and commenced operation on 12 October 2007 replacing the repealed Evidence (Children) Act 1997 (NSW) … 35. Division 3 of Pt 6 deals with the means by which evidence of out of court statements may be given by vulnerable persons, including giving evidence-in-chief in the form of a recording (s 306U), the admissibility of recorded evidence (s 306V), the warning to be given to the jury (s 306X) and the supply of a transcript of the recordings to the jury to aid the jury's comprehension of the evidence (s 306Z). Division 4 of Ch 6 deals with the giving of evidence by vulnerable persons by closed-circuit television facilities or similar technology, and the warning to be given to the jury (s 306ZI)." 1. The effect of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW) ("Vulnerable Persons Act") was to extend the provisions then contained in the Evidence (Children) Act 1997 (NSW) that governed the giving of evidence by children in certain proceedings to cover persons with an "intellectual impairment" (to use the language of that Act) 2. The references to "intellectual impairment" introduced by the Vulnerable Persons Act were later replaced with the wider term, "cognitive impairment", by force of the Crimes Amendment (Cognitive Impairment – Sexual Offences) Act 2008 (NSW). This included an amendment to s 306P(2) of the CPA, inserting the words "a cognitively impaired person" in place of the words "an intellectually impaired person". 3. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ("Project Blue Sky"). 4. The applicant submits that s 306P of the CPA should be construed having regard to the "tripartite considerations" evident from the purpose of Ch 6 Pt 6, being the well-being of the complainant, the necessities in relation to the trial itself and the fairness of the procedure to the accused person. 5. However, as the Crown submits, in the second reading speech of the Crimes Amendment (Cognitive Impairment – Sexual Offences) Bill 2008 the Attorney General, when referring to the rationale behind the then existing definition of intellectual impairment in the vulnerable witnesses provisions of the CPA being replaced by the term "cognitive impairment" said: "This is because these provisions are beneficial in nature and seek to provide support to vulnerable witnesses in giving their evidence, rather than granting the basis for an investigation and prosecution on the basis that the victim had a serious impairment …" [2] 1. It could not be disputed that the trial judge was required to ensure that the trial was conducted fairly, including having regard to the interests of the accused, but I do not consider that the legislature intended by s 306P(2) of the CPA to preclude cognitively impaired persons giving evidence by AVL or a pre-recorded interview unless the Court is first satisfied of the matters set out in the sub-section (as on the applicant's contention the trial judge must form a satisfaction prior to the evidence being given). Another way would be if the Crown and the accused agree to such a course, thereby rendering the evidence admissible irrespective of the Part. 2. In this matter, the Court was not asked to make an order permitting the complainant to give evidence in a certain manner. The Court was not asked to make an order that that the pre-recorded interview was admissible even though it offended the rule against hearsay. 3. Section 306P(2) is within the preliminary division of the part which also includes the definition section and s 306O which specifies that the provisions of the Part are in addition to the provisions of the Evidence Act and do not, unless a contrary intention is shown, affect the operation of the Evidence Act. 4. Whilst CPA s 306P(2) specifies the circumstances in which Ch 6 Pt 6 applies in relation to evidence given by a cognitively impaired person, it does not limit the right of the parties to agree how evidence might be given or agree that evidence which would be otherwise inadmissible is admissible (i.e. the out-of-court statements made in the pre-recorded interview). It does not impose a mandatory limitation on the Court's power to admit evidence that is otherwise inadmissible. 5. Chapter 6 Part 6 of the CPA does not contain a prohibition on the giving of evidence by way of a pre-recorded interview and there is no obligation on the prosecution to seek the leave of the trial judge prior to adducing the evidence in that manner. (See, for example, by way of contrast, s 112 of the Evidence Act, and the High Court's consideration in Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 ("Stanoevski")). 6. Nor is the analogy with s 59(1) of the Succession Act 2006 (NSW) relied on by the applicant apt. Section 59(1) is in the following terms: 59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … 1. Section 59(1) of the Succession Act sets out the matters of which the Court must be satisfied in order that it may make a family provision order on application by a party. As observed by Barrett J in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [79] with reference to s 59(1) of the Succession Act, it is necessary for the Court to be satisfied of the matters set out in s 59 when it is considering an application under Division 1 (it being necessary to make an application, unlike Ch 6 Pt 6 of the CPA). 2. Section 306O makes it plain that the provisions of the Part are in addition to the provisions of the Evidence Act and do not, unless a contrary intention is shown, affect the operation of the Evidence Act. 3. Out-of-court representations may be generally inadmissible under the Evidence Act subject to the exceptions contained therein. Section 306V of the CPA operates as a statutory exception (thereby showing a contrary intention) as follows: 306V Admissibility of Recorded Evidence (1) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a previous representation to which this Division applies given by a vulnerable person under this Division in the form of a recording made by an investigating official. … 1. There is no requirement for a party to seek leave or for the Court to make an order under s 306V if the parties agree that the evidence may be admitted. Even evidence which might otherwise be inadmissible may be admitted with the consent of the other party. 2. In Perish v R; Perish v R; Lawton v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]–[270], the Court accepted, consistent with a line of authority that the words "not admissible" where they appear in the Evidence Act mean "not admissible over objection". 3. The parties may agree to evidence being given in a certain manner for a number of different reasons. As seems apparent in this case, consent might have been forthcoming by the applicant through his counsel because, as the complainant was a cognitively impaired person, the Court would have been satisfied that the facts of the case may be better ascertained if the complainant's evidence was given in a manner permitted by CPA s 306S. 4. Chapter 6 Part 6 of the CPA is intended to afford protection to vulnerable persons when giving evidence. Section 306P(2) must be construed in the context in which it appears, being part of the preliminary division to Ch 6 Pt 6 and in the context of the preceding provision, being s 306O. 5. I thus do not agree that the Court had no power to permit the complainant to give evidence in the manner in which he did, having regard to CPA s 306P. The applicant has not established the error of which he complains. 6. I do not consider that this approach is contrary to the observations of the court in Panchal. Those observations were limited to the absence of a requirement that the trial judge specifically record his or her satisfaction and that in the circumstances of that case she must have been so satisfied. 7. I do not interpret their Honours' observations to mean that, in considering the provisions of CPA Ch 6 Pt 6, satisfaction can be gained retrospectively. The Part applies only if the Court is satisfied. 8. In any event, the Court did not determine the appeal on the basis of a particular construction of s 306P. Instead it accepted that s 306ZJ precluded a challenge of the type pursued by the applicant. It is not necessary to consider that issue in the appeal, as the applicant has not succeeded on its approach to s 306P. Miscarriage of justice 1. If error had been demonstrated, the applicant would have required leave to appeal as r 4 of the Criminal Appeal Rules precludes such a ground being allowed as a ground for appeal (objection was not taken at trial). 2. In ARS v The Queen [2011] NSWCCA 266 at [148], Bathurst CJ (James J and Johnson J agreeing) considered that the following matters were important in considering the operation of r 4 of the Criminal Appeal Rules: "The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]." 1. The parties agreed to the evidence being given in the particular manner and did not seek any order or direction from the trial judge that it could be so given. This brings to mind the comment of the Chief Justice that in the atmosphere of the trial, counsel for the applicant may have seen no injustice as to what was being done. 2. I have already accepted that, if asked or directed to the section, the trial judge would have been satisfied that the facts of the case may be better ascertained if the complainant's evidence was given in the manner contemplated. 3. The applicant submits that the complainant's evidence formed a critical part of the trial and the jury requested that it be allowed to view the pre-recorded interview again. It was given the opportunity to further consider the evidence of the complainant when it might not have otherwise had the opportunity. Mr Lange submitted that it should not have been before the jury in the first place. 4. The problem with this submission, in so far as it relates to miscarriage of justice, is that, if not for the alleged error relied upon by the applicant, the pre-recorded interview would still have been before the jury. If the trial judge had followed the process implicit in the applicant's contentions, she would have formed the requisite satisfaction and the trial would have proceeded in the same way. 5. Again in Stanoevski, McHugh J at [56] identified two ways that it could be shown that there was no miscarriage of justice in the circumstances of that case, being: "First, no miscarriage of justice occurred if the trial judge could not reasonably have refused to grant the prosecution leave to cross-examine the appellant on her claim of good character. Second, no miscarriage of justice occurred if the appellant would have been convicted even if leave to cross-examine had been refused." 1. Even if the trial judge should not have permitted the complainant to give evidence in the manner in which he did without forming the requisite satisfaction, no miscarriage of justice has occurred because the trial judge would have formed the requisite satisfaction if required to do so and directed to the necessity to do so. 2. Even if I had accepted the applicant's approach to s 306P(2) of the CPA, I would not be satisfied that there has been a miscarriage of justice. In the circumstances, the applicant is precluded from pursuing the ground of appeal on which he relies and I would not have granted leave to do so. Extension of Time 1. As the appeal is out of time the applicant requires leave to appeal: Criminal Appeal Act 1912 (NSW) s 10(1)(b). A notice of intention to appeal was filed on 19 June 2017. The notice of intention to appeal has effect for six months after the day of the filing of the notice: Criminal Appeal Rules r 3A. 2. On 6 December 2017, the applicant applied for an extension of time for the period during which a notice of intention to appeal had effect. The Registrar extended the effective period of the notice of intention to 30 March 2018. A further application for extension was then made on 29 March 2018 and the Registrar extended the period until 30 June 2018. On further application the period was extended again until 28 September 2018. 3. It was then not until 3 December 2019 that the documents required by r 23C of the Criminal Appeal Rules were filed. 4. According to an affidavit from the applicant's solicitor, Abdullah Reslan, sworn 8 May 2020, the applicant originally instructed different solicitors. Mr Reslan was only instructed in May 2018. He says that a significant volume of material was provided to his office and significant time was required to arrange and peruse the material. That led to the application to extend the notice of intention to appeal. He says that further material was required and the last of the outstanding transcripts was obtained on 21 June 2019. His office was instructed to investigate fresh or new evidence touching upon inconsistent statements made by the complainant. That process was only completed in November 2019. 5. Other than the general statement that further material was needed and that further investigations were being undertaken, there is really no explanation as to why, for example, it took a year to obtain the transcript or why it took a further six months to file the documents required by r 23C of the Criminal Appeal Rules. 6. The Court has a broad discretion to extend time. [3] As was observed in Kentwell at [32] (French CJ, Hayne, Bell and Keane JJ), the discretionary power to extend the time is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard even though it was not brought within time. 7. The discretion conferred upon this Court is to be exercised by a consideration of the particular circumstances of the case and what the interests of justice require in those circumstances. [4] 8. Two factors which will normally be relevant are the explanation for the delay and the prospects of success on the appeal. In the circumstances of this case, both of these factors detract from the proposition that leave should be granted. 9. The explanation for the delay is cursory. It is little more than a statement that it took a year to obtain the transcript and the solicitors were considering other issues in the six months thereafter. 10. Further, whilst it is difficult to assess prospect of success without regard to this judgment, in my view at the very least there was always a substantial risk that this appeal would not succeed as there was no miscarriage of justice. 11. In the circumstances, I would refuse the application for extension of time. Orders 1. I propose that the application for an extension of time in which to file the notice of application for leave to appeal be refused. ********** Endnotes 1. The applicant accepted (T2.20) that the latter was permitted by s 294B of the Criminal Procedure Act because of the then prevailing definition of a "prescribed sexual offence" in s 3(1)(a) of that Act included offences against s 86 of the Crimes Act 1900 (NSW). 2. New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2008 at 9427. 3. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [12] ("Kentwell"); Criminal Appeal Act s 10(1)(b). 4. Kentwell at [30]. Amendments 03 July 2020 - Representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2020