Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dedeoglu v R [2023] NSWCCA 126 Hearing dates: 14 November 2022 Date of orders: 09 June 2023 Decision date: 09 June 2023 Before: Harrison J at [1] Fagan J at [206] Yehia J at [263] Decision: (1) To the extent required, grant leave to appeal. (2) Dismiss the appeal against conviction. (3) Allow the appeal against sentence. (4) 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. (5) Nominate the following indicative sentences: (a) Count 3, 6 months imprisonment. (b) Count 1, 12 months imprisonment. (c) Count 2, 6 years imprisonment. Catchwords: CRIME – appeals – appellant convicted by jury of two counts of sexual assault without consent and one count of sexual touching without consent CRIME – appeals – where ERISP allegedly wrongly admitted – where misleading DNA evidence allegedly wrongly admitted – where phone records allegedly "contradict" Crown case – where misleading screenshot evidence allegedly wrongly admitted – where alleged failure by DPP to provide appellant with "all trial materials" – where evidence of complainant's friends allegedly wrongly admitted – where evidence of doctors allegedly "[not] adequate" – where non-contemporaneous statement of OIC allegedly wrongly admitted – where diary of OIC allegedly wrongly admitted – where failure to call witnesses alleged – where trial judge alleged to have helped Crown – where trial judge allegedly gave misleading directions as to consciousness and consent – where trial judge allegedly misdirected jury on nonresponsive answers – where trial judge allegedly misdirected jury on complainant's evidence – where representation allegedly incompetent – where alleged bias – where verdict allegedly unsafe and unsatisfactory – where judge allegedly misdirected jury as to elements of the offence CRIME – appeals – appeal against sentence – aggregate sentence – whether sentence manifestly excessive EVIDENCE – criminal trials – application of the rule in Browne v Dunn to criminal trial by jury – whether timeliness and consistency of complaint and general improbability of accused's account sufficient to warrant application of the proviso Legislation Cited: Crimes Act 1900 (NSW) ss 61I, s61L Criminal Appeal Act 1912 (NSW) s 6 Evidence Act 1995 (NSW) ss 33, 66, 89, 89A, 90, 104 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Cases Cited: Agresti v The Queen (2017) 13 ACTLR 1; [2017] ACTCA 20 Browne v Dunn (1893) 6 R 67 Davies and Cody v The King (1937) 57 CLR 170 at 180; [1937] HCA 27 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183 Dogan v R [2020] NSWCCA 151 Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61 Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83 Hofer v R (2021) 395 ALR 1; [2021] HCA 36 JW v R [2022] NSWCCA 206 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Monteiro v R [2011] NSWCCA 113 MWJ v R (2005) 222 ALR 436; [2005] HCA 74 Nudd v The Queen [2006] HCA 9 R v Birks (1990) 19 NSWLR 677 R v Coswello [2009] VSCA 300 R v Manunta (1989) 54 SASR 17 R v MAP [2006] QCA 220 R v Miletic [1997] 1 VR 593 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: Onur Dedeoglu (Appellant) Rex (Respondent) Representation: Counsel: I Nash (Respondent) Solicitors: Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/263370 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 20 February 2020 Before: Noman SC DCJ File Number(s): 2018/263370; 2019/237101; 2021/302374 HEADNOTE [This headnote is not to be read as a part of the judgment] Mr Dedeoglu was tried and convicted of three counts of sexual offending before a jury and Noman DCJ on 20 February 2020, contrary to the Crimes Act 1900 (NSW) ss 61I (count 2) and 61L (counts 1 and 3). The complainant, then 17 and in the aftermath of her Trial HSC examinations, went out with some friends to celebrate. Some members of the group travelled to McDonald's after which a trio, which included the complainant, decided to share an Uber home. Mr Dedeoglu, the driver of the Uber, picked up the trio at a location within a couple of minutes walk from McDonald's. The complainant was the last of the group in the Uber, and at some point fell asleep in the back seat. CCTV obtained from the complainant's neighbour depicted the Uber arriving at the complainant's home just after 1:30AM; the complainant did not alight. Mr Dedeoglu then switched off the vehicle's satellite navigation device two minutes later while still idling outside the home of the complainant, before switching it back on at 1:50PM, now parked at Bondi Beach. The complainant described having woken up while the car was still parked at the beach to digital penetration and kissing performed by Mr Dedeoglu, which he had commenced while the complainant was still asleep. She pushed him away, then left the vehicle and walked home, on the way sending a Snapchat to SO, a friend, depicting herself seemingly distraught and with the caption "i feel like I was justctakkeb advantage of" Mr Dedeoglu had argued in his defence that the encounter happened, but at the complainant's initiation. A jury convicted Mr Dedeoglu on 20 February 2020. Her Honour then imposed an aggregate sentence of 8 months and 6 years with an aggregate non parole period of 6 years. Mr Dedeoglu on appeal took issue with both the conviction and the sentence, and, inclusive of the various sub-grounds, marshalled more than 35 discrete grounds of appeal. The Court held (granting leave to both streams of appeal, though dismissing the conviction appeal and allowing the sentence appeal): In respect of the conviction appeal globally: 1. Broadly, although there were some misgivings in the course of the trial, most were not sufficient enough to warrant concern, not occasioning a miscarriage of justice against Mr Dedeoglu (Per Harrison J, Fagan J and Yehia J agreeing) In respect of the incompetence of counsel ground (Ground 16): Per Fagan J (Yehia J agreeing) 1. Counsel's failure to put Mr Dedeolgu's explanation for the complaint to the complainant would serve no forensic purpose nor add anything to Mr Dedeoglu's response to the Crown case, on account of the remarkable consistency and inherent believability of the complainant's account; there was no miscarriage of justice: [231]-[235], [243], [246] 2. In light of the ultimate weakness of Mr Dedeoglu's response to the Crown case, there is also no miscarriage of justice that can arise from the trial judge's direction to the jury as to his counsel's failure to put this explanation to the witness: [249] Nudd v The Queen [2006] HCA 9; Hofer v The Queen [2021] HCA 36 1. Even were there to be a miscarriage of justice, it would not be a substantial one and the proviso ought to be invoked: [250]-[252] Hofer v The Queen [2021] HCA 36; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Per Harrison J (in dissent): 1. The failure by the defence counsel to put the only available counterfactual for the complaint to the complainant on behalf of Mr Dedeoglu, compounded by the trial judge's direction regarding the rule in Browne v Dunn (1893) 6 R 67, led to a miscarriage of justice depriving Mr Dedeoglu of a fairly open chance of an acquittal: [179]-[180] 2. While evidence of the complainant is consistent and timely, the loss of Mr Dedeoglu's only possible defence should prevent the application of the proviso: [197] 3. Discussion as to the application of the rule in Browne v Dunn against defendants in criminal trials: [167]-[177] R v Birks (1990) 19 NSWLR 677; R v Manunta (1989) 54 SASR 17; Hofer v R (2021) 395 ALR 1; [2021] HCA 36; R v Miletic [1997] 1 VR 593; MWJ v R (2005) 222 ALR 436; [2005] HCA 74; R v MAP [2006] QCA 220; R v Coswello [2009] VSCA 300 Per Yehia J (writing separately on this issue): 1. Observations as to the responsibilities of trial judges in directing juries regarding conduct of accused's counsel: [266]-[268] In respect of the appeal against the sentence: Per Harrison J (Yehia J agreeing): 1. When accounting for Mr Dedeolgu's prior lack of convictions, and weighing the offending up against the more serious and extreme conduct that may constitute the same offence (without diminishing how the offending may have borne on the complainant), the sentence was manifestly excessive: [202]-[203] Per Fagan J (in dissent): 1. The sentence was not manifestly excessive: [254]-[261] Judgment 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: Count 1: On 26 August 2018, at Bondi Beach in the State of New South Wales, did assault [the complainant], and at the time of the assault, committed an act of indecency on [the complainant]. Count 2: On 26 August 2018, at Bondi Beach in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent, knowing that she was not consenting to the sexual intercourse. Count 3: On 26 August 2018, at Bondi Beach in the State of New South Wales, did assault [the complainant], and at the time of the assault, committed an act of indecency on [the complainant]. 1. 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. 2. 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: Count 3: 9 months imprisonment Count 1: 2 years imprisonment Count 2: 8 years imprisonment with a non-parole period of 5 years and 6 months. 1. 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. 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. The Crown case was as follows. 2. In August 2018, the complainant was a Year 12 student living with her sister (MT) and her parents in Brighton Boulevard, North Bondi. Events on evening of 25-26 August 2018 1. 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. 2. 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. 3. 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. The Uber ride and alleged incident 1. 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". 2. 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. 3. 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. 4. 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: "HER HONOUR: Just so I understand your answers when you keep saying, 'I don't remember that', are you saying that you may have been awake and don't remember it or are you saying you were asleep and that's why you don't remember it? A. I'm saying I'm asleep." 1. 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. 2. 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." 3. The complainant's description of the alleged assaults included the following: SOLICITOR ADVOCATE: … I'm just going to take you back again to the Uber journey. I'm going to ask you about the evidence you gave earlier about waking up and feeling the hand of the Uber driver in your underpants, touching, and then his finger inside your vagina. Are you able to describe how he was doing that with his hand in terms of what level of force was being used? A. It wasn't - it was pretty uncomfortable. He was doing it quite firmly and aggressively, yeah." 1. 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". 2. 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"'. 3. 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: "So on Snapchat, you can also send videos that last as long as however long the video's meant to go for, and in those videos she seemed, yeah, flustered and she was trying to explain. From what she was saying in the videos, we - we, being me, (IZ), (MS) and (SS) - thought that she meant some - when the Uber dropped HW home that someone else had gotten in the car. That she was really - really upset and we were very - struggling to piece together what she was trying to say." 1. 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: "(SO) was on the phone to me, kind of just saying you know - comforting me and asking me what happened and I said to her - I honestly don't know exactly what happened in that phone call because that was - it was all quite a distressing time. I was crying and - yeah, she's - she's telling me to go home and tell my mum." 1. 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. 2. 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. 3. The balance of IZ's evidence-in-chief as to communication by the complainant to SO was as follows: "Q. And did you overhear some of that? A. No, not particularly. Obviously, I heard (SO's) kind of end of the phone call. I - we were in the same room but I don't recall hearing anything [the complainant] said. Q. Did you make any observations about (SO's) voice? A. She seemed quite like worried and that something had happened that - that was concerning her. Q. You're not sure if the phone was loudspeaker or not. Is that right? A. No. Q. And then after the phone call, (SO) explained that something had happened with [the complainant]-- A. Yes. Q. --and the Uber driver. A. With the Uber driver. Q. The next morning you woke up and (SO) was on the phone. A. Yes. Q. And did you hear her say something? A. I woke up to (SO) being on the phone with [the complainant] and she was just- kept saying, 'Hey, you need to tell [JJ]. You need to tell your mum', but that's all I really remember hearing." 1. 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: "Q. Did you become aware of the contents? A. Yes. Q. How did you become aware? A. (SO) screen shotted it and we kind of discussed it. Q. Was there a phone call after that? A. Yes. There was. Q. What do you remember of the phone call? A. I remember (SO) rang [the complainant] and [the complainant] was hysterical, crying and could hardly get words out. Q. Are you able to remember any of the words that she did get out or not? A. I can't. I remember we were saying you need to go and tell your mum and go inside. But she - I remember her saying she can't because she was hardly getting words out because she was crying. Q. What was (SO) doing? A. She was trying to calm her down. Q. Was that effective? A. Not really. She was in a bad state. Q. After that phone call was there a discussion amongst the girls? A. A little one because we were just confused because we weren't sure what happened and why she was crying. Q. Do you remember (SO) telling [the complainant] to get some sleep and that they'd talk in the morning? A. Yes. Q. In the morning you woke up and you heard (SO) and (SS) talking amongst themselves? HER HONOUR: (SO) and [the complainant], was it? SOLICITOR ADVOCATE: I think it was (SO) - Q. Was it (SO) and (SS)? A. (SO) and (SS) were talking to each other. Q. And then (SO) told you about a conversation she'd had with [the complainant]? A. Yes. I think they might have been on the phone when l was already asleep." 1. 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. 2. 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. 3. 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. Complainant's disclosures regarding incident during the day on 26 August 2018 1. 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". 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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." 8. 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. 9. 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. 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. 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. 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 1A: Not being allowed to contact lawyer or friend (as a support person) prior to interview. Ground 1B: Part 9 document never translated to applicant Ground 1C: Informed wrongly during arrest that allegation was one of "sexual harassment" not "sexual assault" Ground 1D: The trial unfairly affected due to mistranslation and mistyping issues of ERISP interview. Ground 1E: The Court misled with incompetent expert certificate and translation mistakes of ERISP interview. The Expert hasn't been called as a witness to the court. Ground 1F: The applicant gave an interview under bad conditions. Ground 1G: I am disagree with her Honour's conclusions in the Principal Judgment for "The ERISP interview is not excluded". 1. 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. 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. 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. 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: "[38] At the hearing of the appeal, a question arose as to whether the standard of review by this Court of a trial judge's decision to exclude evidence under s 90 is the 'correctness standard' or subject to the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 ('House'). In light of the decision of this Court in Rogerson v R; McNamara v R [2021] NSWCCA 160 at [544], [547]-[548], it may be that it is the correctness standard at least so far as s 90 requires a determination that it would be unfair to use the evidence. Ultimately, it is not necessary to decide this issue as the result is the same regardless of the applicable standard of review." 1. The issue was discussed in JW v R with respect to s 138 of the Evidence Act at [68]-[69] as follows: "The applicable standard of appellate review [68] The standard of appellate review to be applied on an appeal from a decision made pursuant to s 138 of the Evidence Act is the subject of some uncertainty. In R v Riley [2020] NSWCCA 283 (Riley), Bathurst CJ, although ultimately finding it unnecessary to decide, expressed the view that the exercise to be undertaken in applying s 138 admits of only one outcome, and that the review of such a decision is not subject to restraints of the kind considered in House v The King (1936) 55 CLR 499; [1936] HCA 40. After referring to a number of authorities, the Chief Justice said the following (at [109]–[112], Wilson J agreeing at [139]): 'Section 138, at least in criminal proceedings (see Kadir v R; Grech v R (2020) 267 CLR 109; [2020] HCA 1] at [13]), seeks to balance the competing public policy considerations identified by Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74; [1978] HCA 22, namely, the desirable goal of bringing to conviction the wrongdoer, and the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law. In that context it was emphasised that unfairness to an accused is only one factor which is to be taken into account. Section 138(1) poses the question of whether the desirability of admitting illegally or improperly obtained evidence outweighs the undesirability of doing so. Subsection (3) refers to a series of factors which are to be taken into account in determining the matter. Those matters, whilst mandatory, are not necessarily exhaustive. Though it is correct that the matters to be taken into account in s 138(3) pull in different directions, and it is certainly correct that minds might differ on the question of whether the desirability of admitting the evidence is or is not outweighed by the undesirability of doing so, there can only be one correct answer. It seems to me that ultimately, the question posed by the section demands a unique outcome in the sense described by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30] at [49]. Further, with respect to a matter which involves important competing questions of public policy, it does not seem to me that merely because the decision by the primary judge could be said to involve an evaluative process, a court of appeal should not substitute its own view on the binary question if it considers that the conclusion reached by the trial judge was incorrect: see SZVFW at [85] This approach is consistent with the approach taken in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 to appeals concerning s 97(1)(b) of the Evidence Act. In these circumstances, were it necessary to reach a concluded view on this issue it is my opinion that recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King.' [69] This Court's decision in Rogerson v R [2021] NSWCCA 160 at [542]–[548] contains a similar analysis in relation to s 135 of the Evidence Act: see also Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9." 1. 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. 2. 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. 3. 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. 4. 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: "TO WHOM IT MAY CONCERN Dear Sir/Madam, My name is Svetlana DEDEOGLU, wife of Mr. Onur DEDEOGLU who is in Junee Correctional Centre awaiting his decision on his Appeal to COURT OF CRIMINAL APPEAL which was heard on 14th of Nov 2022. He had requested for transcript of the APPEAL which he got but he has few concerns in regard to his Transcript 1. He did not use any interpreter 2. There are a lot of typo logical mistake which as per him has changed the meaning of the submission 3. Some of his spoken words are not in the transcript may be because of his accent 4 He insists that it could significantly affect his Appeal Hearing as the honourable judges can infer different meanings as to what he is saying. 5. Because of this he is worried that he will miss the opportunity of a fair hearing 6. As it is already more than 3 months and his judgement could be out in any day he is requesting to look into this matter as soon as possible so he gets a fair go. 7. this is because his appeal has already been delayed by 2 years due to adjournments and he fears that he will spend a significant amount of time in Custody if he is successful. IF THE JUDGES ARE GOING TO DECIDE ON THE CASE BASED ON THE TRANSCRIPT THEN IT COULD SIGNIFICANTLY AFFECT THE DECISION. Therefore i request you to take the appropriate action on this or ADVISE ME THE CORRECT PROCEDURE Thanks and best regards, Svetlana DEDEOGLU" 1. 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. 2. 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 2: Jury mislead(ed) by the Crown, due to wrong DNA evidence. Ground 2A: With DNA tapelift R24 FX000498112, DNA sample taken from the complainant jacket's zipper, but Crown submitted that evidence as, that DNA sample taken from the complainant's jean's zipper. Ground 2B: Even if though that tapelift (R24) would have been taken from the jean's zipper that evidence shouldn't been submitted to jury as "the accused's DNA found on jean's zipper area" where Expert certificate says "Onur Dedeoglu cannot be excluded as a minor contributor to this mixture" 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. These grounds may also be considered together. 2. 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. Ultimately, by agreement, the DNA evidence was led through PCSC Keremelevski as follows: "Q. The DNA of the accused was also found on the front left upper zip area of the black jeans? A. Yes." 1. 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. 2. 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: "Q157 Yeah, well sort of took the bag. She, she let me kiss. All right. And then, so we continued a bit more. [Then I first tried to unbutton her trousers] So, and I tried to undo the uh trousers. [But I couldn't unbutton she had the belt over there] Oh, but I couldn't, I tried but I couldn't. I couldn't because she had a, what do you call this? Q158 A belt. A (int) A belt. She had a belt. A Uh, seat belt. A (int) A seat belt. Q159 Oh seat belt, yeah, yeah, yeah. Yep." 1. Mr Dedeoglu gave evidence at his trial. His evidence-in-chief included the following account: "Q. While you were kissing her breast were you doing anything with your hands? A. INTERPRETER: I was caressing her stomach with my left hand. Q. What happened then, sir? A. INTERPRETER: At the time getting more courage myself from her body movements and her actions I tried to open her pants, the button of the pants. But I couldn't open it. Q. Why couldn't you open the pants button? A. INTERPRETER: Had the seat belt on and she was wearing pants which were sort of high that level and the pants she was wearing were very tight. Q. You mentioned the seat belt. Is this the seat belt that she was wearing at the time? A. INTERPRETER: Yes. Q. How did that present difficulty with you unbuttoning the pants? A. INTERPRETER: Because she was wearing her seat belt on and her body was slightly downwards and that also the belt was covering the button of the pants. But the main reason why I couldn't open her pants, not exactly because of the seat belt, but because the top of her pants were creased and the button was not showing itself clearly. I didn't try too much. I tried with my left hand. After that I stopped. Then she started helping me." 1. 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: "[22]… To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or 'realistically [could] have affected the verdict of guilt' (at [123] per Gageler J) or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial' (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ)." 1. 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. 2. Finally, and perhaps most significantly, counsel for Mr Dedeoglu addressed the jury in final submissions in terms that included the following: "Now ladies and gentlemen, the DNA evidence, it really doesn't take the Crown case any further because as previously stated in the opening and here in my closing address, and you've heard the accused in both interview and in evidence, he doesn't deny kissing the complainant on the breasts or the lips. Similarly, he doesn't deny engaging in any digital vaginal intercourse. The fact that through the officer-in-charge you heard that the accused DNA is found on the complainant's clothing including on the inside of the underwear and inside of the bra cups, the singlet top and also the left upper zipper area of the black jeans should come as no surprise." 1. 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. 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. 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. This ground is without merit. Ground 4: Screenshot evidences should not been admissible. 1. 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. 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. Mr Dedeoglu's submission was in the following terms: "The Crown has tendered many screenshots to the court, in saying those screenshots belong to the complainant's and witnesses conversations due text messages and chat. There was not any corroboration if these conversations and text messages actually happened between them and in said time. Police haven't got any cellbrite [sic] from the complainant and witness. Optus record contradict those text messages occurrence." 1. 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. 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. 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. 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. 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. 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: MT: Yeah soz just cant go now on a Complainant: yep but in the next half an hour I need you to MR: Yep 1. 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". 2. The Crown's submission on this issue in this Court was as follows: "135 No objection was taken to the tender of Exhibit G. It is obvious Exhibit G had been edited to remove part of the conversation. The removal is unsurprising as the text that had been removed is not relevant to a fact in issue. The messages were not used by the Crown to show that the complainant was distressed (cf AWS [277]). The messages simply corroborate that a conversation took place between the complainant and her sister shortly after 9.36am on 26 August 2018. The messages between the complainant and MT were unimportant to the issues in the trial and they were not mentioned in either party's closing address or in her Honour's summing up. The important evidence in relation to MT is her observation of the complainant and the nature of the complaint made to her when she was in the complainant's bedroom on 26 August 2018. That evidence was the subject of the Crown closing (T442) and was evidence that was unchallenged: MT was not asked a single question in cross-examination." 1. I am unable to accept that this sub-ground has any merit. 2. 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. 3. The Crown's submission on this issue in this Court was as follows: "[Mr Dedeoglu] asserts that the messages should have showed that the complainant answered, 'yes' to the question from SO 'where was he stopped, like were you near your house' (AWS p171). The submission made by [Mr Dedeoglu] is that if the complainant answered, 'yes' to that question then it 'proves [his] account' that the complainant 'was awake' and that they 'had [a] conversation near her house.' (AWS p 170) But that assertion does not accord with any of the material produced in [Mr Dedeoglu's] affidavit at pp24-26. Neither Exhibit B, nor the conversation obtained from SO's phone shows the complainant answering, 'yes' to that question." 1. I am not satisfied that this sub-ground has any merit at all. Ground 4D: Those screenshots have irrelevant and hearsay content. 1. 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. 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. 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. In his final address to the jury, the Crown said this: "The striking feature of this case is we have a complaint that could not be any more immediate. It's a matter of seconds. Maybe a minute or two. But the timing of the complaint is something that you'd think is relevant. What she says to these witnesses, and her demeanour at the time, is consistent with her being indecently assaulted and sexually assaulted. The first complaint was to [SO]. You've got exhibit A, which is really quite a remarkable piece of evidence. There's a photograph of [the complainant], and on the bottom of the photograph is her saying what's happening. That's a documentary complaint. Before the days of social media you just wouldn't have seen that. She also spoke to [SO] in a phone call, and you remember [SO], obviously, as a witness. You might find that she was a young woman who was impressive, articulate, calm and composed. She gave very credible evidence in this Court. She said this about these moments, these first moments after the offences, '[the complainant] looked visibly upset, flustered; really, really upset. Her voice was shaking. She was crying. She heard a voice, a Russian voice I think she said, 'He is kissing me and my pants were undone'." 1. The nature and extent of the complainant's distressed state also figured in her Honour's summing up, as appears from the following extracts: "The complainant said she started walking home. She sent a Snapchat image to her friend, [SO], saying, 'I feel like I was just taken advantage of', and you will remember that there are a number of mistypes in that. [SO] was concerned about what she received, she took a screenshot, and you have that as exhibit A, showing the appearance of the complainant at that time, almost immediately after exiting the Uber. Both the complainant and [SO] said that the complainant appeared distressed in the image; and you have that image to look at. You have the image and you can make your own assessment as to her appearance at that time…There was also video sent, according to [SO] after the still image, but before the call, but they were not screenshotted. [SO] said the complainant was crying, and that she mentioned being kissed and her pants being undone. … The Crown relies upon the complainant's immediate and continued distress. The complainant said she was crying immediately after exiting the Uber. There is evidence from both [SO] and the complainant's mother of distress and crying immediately after, and you also have exhibit A, the photo of the complainant. She was also showing signs of the distress the following days when she spoke with her sister, her friends and her mother. … [The Crown] said the complaint witnesses amply demonstrated the complainant's level of distress about what occurred. He said the evidence did not rely exclusively on memory as there was a Snapchat photograph and text messages supporting the witnesses." 1. 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. 2. 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. 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. 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. 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. 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. 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. Mr Dedeoglu complains that he was not provided with CCTV footage obtained by the Crown from four locations. These are dealt with in turn. The Star Bar 1. 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. 2. 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. XXX Brighton Boulevard 1. 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: "314 Because of the Crown hasn't played that part of the video since I arrived there, my words doesn't corroborated. That situation took my account down in jury eyes. The Crown used that against me in the trial and in sentence process. Her Honour said in the sentence hearing, doesn't believe me why I removed from front of her house." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. North Bondi RSL, North Bondi Fish, North Bondi Surf Life Saving Club 1. 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. McDonalds 1. 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. 2. 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. 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. Mr Dedeoglu complains that the Uber records were provided to him late. 2. 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. 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. 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. 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. 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. 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. The relevant portions of the witnesses' evidence is as follows. 3. 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: "Q. And did you overhear some of that? A. No, not particularly. Obviously, I heard (SO)'s kind of end of the phone call. I – we were in the same room but I don't recall hearing anything [the complainant] said. Q. Did you make any observations about (SO)'s voice? A. She seemed quite like worried and that something had happened that – that was concerning her. Q. You're not sure if the phone was loudspeaker or not. Is that right? A. No. Q. And then after the phone call, (SO) explained that something had happened with [the complainant]-- A. Yes. Q. – and the Uber driver. A. With the Uber driver. Q. The next morning you woke up and (SO) was on the phone. A. Yes. Q. And did you hear her say something? A. I woke up to (SO) being on the phone with Jose and she was just – kept saying, 'Hey, you need to tell Jane. You need to tell your mum', but that's all I really remember hearing." 1. 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". 2. 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: "Q. Did you become aware of the contents (of the Snapchat)? A. Yes. Q. How did you become aware? A. (SO) screen shotted it and we kind of discussed it. Q. Was there a phone call after that? A. Yes. There was. Q. What do you remember of the phone call? A. I remember (SO) rang [the complainant] and the [the complainant] was hysterical, crying and could hardly get words out. Q. Are you able to remember any of the words that she did get out or not? A. I can't. I remember we were saying you need to go and tell your mum and go inside. But she – I remember her saying she can't because she was hardly getting words out because she was crying. Q. What was (SO) doing? A. She was trying to calm her down Q. Was that effective? A. Not really. She was in a bad state. Q. After that phone call was there a discussion amongst the girls? A. A little one because we were just confused because we weren't sure what happened and why she was crying. Q. Do you remember (SO) telling [the complainant] to get some sleep and that they'd talk in the morning? A. Yes. Q. In the morning you woke up and you heard (SO) and (SS) talking amongst themselves? HER HONOUR: (SO) and [the complainant], was it? SOLICITOR ADVOCATE: I think it was (SO) – Q. Was it (SO) and (SS)? A. (SO) and (SS) were talking to each other. Q. And then, (SO) told you about a conversation she'd had with [the complainant]? A. Yes. I think they might have been on the phone when I was already asleep. Q. (SO) told you that – NORRIE: I object to – SOLICITOR ADVOCATE: All right. Q. You got the sense that (SO) wasn't telling – SOLICITOR ADVOCATE: I withdraw that. NORRIE: I object." 1. 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. 2. 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. 3. 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: "Her Honour said in summing up that [MS] and [IZ] overheard the conversation (SU31), which was not correct. Her Honour also referred those evidence and said that; if you find that the complaints were made substantially to the effect as described by those witnesses, then you can use evidence of what was said in the complaint, 'as some evidence that such assaults did occur', 'some evidence independent of the complainant', 'as evidence of the truth of what the complainant alleges against the accused', 'allegation was reliable…more likely to be accurate'. So, by those directions her Honour directed the jury to give huge weight to those evidences, but those evidence were itself inadmissible." 1. 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. 2. 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: "The Crown relies upon the immediacy of the complaints and the consistency of the complaints. If you find that the complaints were made substantially to the effect as described by those witnesses, then you can use evidence of what was said in the complaint, as some evidence that such assaults did occur. That is you can use it as some evidence independent of the evidence given to you of that incident by the complainant in the witness box. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against the accused. A jury is entitled to find that the complaint was made at a time, and in a manner that would indicate that the allegation was reliable; that is that the allegation is less likely to have been fabricated by the complainant, and more likely to be accurate. The Crown also relies upon the complaints in another way. The Crown submits that the complaints made by the complainant, together with the circumstances in which each was made, supports the credibility of the complainant as a witness; in that it indicates the weight with which [sic] you give to her evidence as to the alleged offences." 1. 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. 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. 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. Mr Dedeoglu's written submissions in support of this ground included the following: "368 At 26 August 2018 the complainant, her mother [CN] went to RPA Hospital for SAIK. There was also Ms Lisa Simpson, (Sexual Assault Counsellor), Dr Nicola Clare Woods examined the complainant, took history, conducted Sexual Assault Examinations and produced SAIK report which are total 58 pages. (As I explained part 5A that report hasn't given to me entirely). 'Intoxication' is very important for my case but the Doctor says nothing about that, if they made any examination about intoxication or not? I haven't been provided also 'toxication' [sic] part of SAIK notes. 369 The complainant has declined body check in the hospital. In my opinion she declined because she knew there were acts prior to penetration such as kissing breast, neck etc. She did not want to explore them as they are inconsistent with her account. In the court, the Crown directed to the Doctor with 'leading question' and the Doctor gave different explanation about declining body check." 1. 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. 2. 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. 3. 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: "I've seen patients who have reported forceful digital penetration and there has been no injury found. But I've also seen cases – we see cases in our service where there's been, you know, no – no report of forceful assault and yet there can still be findings. It's very variable." 1. 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: "382 I've asked to my legal team to call another expert witness to court. Because I wasn't agree Dr Woods' opinion in her Expert Certificate, on the base that she does not say whether penetration was consensual, where there is no any finding in the complainant's examination. Her opinion was inadequate. In the another case, Doctor [Cooper] who is from same hospital with Dr Woods (from RPA Hospital), he gave different opinion than Dr Woods, about symptom issue in the Cordeiro v R [2019] NSWCCA 308 case. And I wrote that in the email to my lawyer, about that opinion difference between doctors. … 385 So Dr Cooper's evidence was opposite to Dr Woods' evidence. Dr Cooper obviously linked 'injury' and 'painful' with 'dry vagina', which wouldn't be aroused, because of the unconsciousness of the person. Similarly Dr Cooper also linked 'non painful penetration' with lubricated vagina, which occurs in consensual penetration. Because of vagina lubricated, pain and injury wouldn't be expected. His evidence obviously contradicts Dr Woods' opinion. 386 There was another evidence apart from the complainant's report in the hospital. Police put the complainant's underwear photograph in my brief file. About that photograph, police explanation was 'dry fluid stain', which resulted by lubrication of vagina. I also told my lawyer and my barrister about that evidence and I asked to submit that to jury and to doctor and ask question if that happens in consensual penetration, which my legal team agreed. However, didn't do that. I asked them to call another doctor witness but they told me, Legal Aid will not fund for that. They also did not do adequately cross-examination to Dr Woods. My barrister asked to court for speak with Dr Woods before she gave her evidence, I have no knowledge about that conversation." 1. Dr Woods' Certificate contained the following opinion: "It is common to have a normal genital examination on medical examination after digital penetration whether consenting or nonconsenting. The genitals of a mature woman are elastic and may stretch without injury to accommodate fingers, a penis or another object." 1. 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. 2. This ground of appeal is without substance. Ground 8: OIC Keremelevski's evidence inadmissible according to s 33 Evidence Act. 1. 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. 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. 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. Unnamed police officer 1. 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. 2. 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. Lisa Simpson 1. 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 10: Her Honour and the Crown exaggerated level of the complainant's tiredness in saying, "she was affected by tiredness more so than intoxication" where there was no such evidence. 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. These grounds may be considered together. 2. 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. In support of Ground 10, Mr Dedeoglu made the following preliminary submissions: "404 According to witnesses evidence that appeared, the complainant was not substantial intoxicated. Then 5th day of the trial, her Honour offered to the Crown to rely on 'combination of intoxication and tiredness'. That was judge's idea which the Crown later accepted only next day, 6th day of the trial. Until 6th day of the trial 'tiredness' was not one of the issue which the Crown relied. In his opening, the Crown did not use the word 'tired' or 'tiredness'. 405 The Crown and her Honour also exaggerated complainant's 'tiredness'. Because when she required to make compare between effect of 'tiredness' and 'intoxication', the complainant's answer was 'I can't be exact'. But both the Crown and her Honour told the jury 'she was more affected by tiredness than alcohol'. There was no evidence to make that conclusion that the complainant more affected by tiredness than alcohol." 1. 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: "Q. So it reads, 'I'm not even fully clear on what happened but I'm all fine now.' A. Yes. Q. 'But I'm never getting in an Uber alone that drunk again.' [the complainant] has then said, 'So, what happened.' You said, 'I don't really want to text it.' 'Can we call.' 'OMG. I just looked.' Is that "Oh my God.' A. Yes. Q. And what are you referring to in that message? A. So, I – because HW had split the – had split the Uber with me, I get an email too with the Uber details, and I looked at it and it said that, like, the ride stopped at 1.31, but I got home at 1.55. Yeah. Q. Over on to page 5, the second message, if you can read that to yourself. You said 'It's so hard, though, because I feel like it was my fault because I was drunk and shouldn't have been so sleepy, but I couldn't help myself. Like, I woke up and it was happening.' There you talk about being drunk and sleepy. Can you tell the Court a bit more about those feelings you had at that time when you were getting into the Uber, and in the Uber? A. Yeah. I was just tired. It had been a big week. I had – it was the end of exams, so I was tired in general. Alcohol would make that tiredness even – like, increase the tiredness and I was – yeah. I sleep – fell asleep in the Uber ..(not transcribable)..sat down. Q. When you say exams, would they have been your HSC trial exams? A. They were my HSC trial exams. Yes. Q. And during your school week, what time would you normally be waking up in the morning to go to school? A. Maybe 6.30. … Q. Okay. Now, when you made your statement to the police, you said this and tell me if you recall saying this, 'I was slightly affected by the alcohol I had drunk earlier but was more tired from it now.' Do you recall saying that? A. Yes. Q. Okay. So, in – in your statement, you're and correct me if I'm wrong, you're suggesting that it's a combination here where you're slightly affected by the alcohol but you're more tired. Is that right? A. Yes. Q. Okay. Now, that – that's the case, is it? What you said in the statement that it's a combination but slightly affected by alcohol but more tired. Is that right? A. It's a combination. Yes. Q. But more so, due to tiredness than the alcohol. Is that correct? A. I'd say so but I can't be exact." 1. 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. 2. 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. The relevant portion of her Honour's summing up was as follows: "Element 3 is that the assault was without the consent of the complainant. Consent involves the conscious and voluntary permission by the complainant to the accused to touch her body in the manner that he did. If the complainant was unconscious or asleep, she could not give conscious and voluntary permission. That consent can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words; it may also be communicated in other ways, such as the offering of resistance. However, a person who does not offer actual physical resistance is not, by reason only of that fact, to be regarded as consenting. Element 4 is that the accused knew that the complainant was not consenting. In deciding this issue, you are concerned with the actual state of mind of the accused at the time of the act amounting to the assault. It is not a question of what you would have realised, or thought, or believed. It is not a question of what a reasonable person would have thought or believed. The Crown asks you to infer or conclude that the accused knew that the complainant was not consenting. … Element 2, without consent. A person consents to sexual intercourse if she freely and voluntarily agrees to have sexual intercourse with another person. The law provides that a person does not consent to sexual intercourse if the person does not have the opportunity to consent to that sexual intercourse because the person is unconscious or asleep. So you would probably pick up that there is a difference in expression and the way I have phrased it in relation to the indecent assaults. Consent can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words. It may also be communicated in other ways, such as the offering of resistance, although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Once again, you will pick up there is different phrasing in that portion to the other part for indecent assaults. Element 3: the accused's knowledge. Once again there are differences in this. So please stick to the ones you are considering. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent. It is the accused's knowledge of the lack of consent with which you are concerned. You are concerned with the actual state of mind of the accused at the time of the act. It is not a question of what you would have realised, or thought, or believed and it is not a question of what a reasonable person would have thought, or believed. The Crown asks you to infer or conclude that the accused knew that the complainant was not consenting. In considering the accused's knowledge, you must have regard to all of the circumstances, including any steps taken by the accused to ascertain whether the complainant consented to sexual intercourse. An accused knows the complainant did not consent to the sexual intercourse if either, firstly, the accused actually knew that the complainant did not consent to the sexual intercourse; or secondly, the accused simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity, if he had turned his mind to it; or thirdly, the accused realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not; or fourthly, even if the accused believed at the time that the complainant consented the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse. … It is not challenged that the accused committed each of the physical acts relied upon to support each count. In summary, the accused accepted he committed each act. He said the complainant and he discussed doing things, and that she was awake and participating in the sexual activity. The complainant said she was asleep and woke to the acts being committed. She said there was no previous conversation with the accused. She said she was asleep and could not and did not consent. … The complainant said she was not awake. She said it was possible, but she did not remember drifting in and out of consciousness outside her house. She said to her knowledge she was asleep. She answered many questions in cross-examination with, 'I don't remember'. In giving those answers, she clarified that she did not recall as she was indicating that she was not awake. She said she woke up at the beach to the accused digitally penetrating her, and kissing her mouth. She said she pushed him away. She exited the car, possibly with the accused assisting to open the door. She said the accused said, 'It's okay. It's okay'. … The accused accepted in his interview, and in his evidence, that he committed the physical acts supporting each of the three counts, but he indicated that each act was committed with the complainant's consent. In relation to the offences alleged against the accused, the Crown relies essentially upon the evidence of the complainant to prove the elements of her lack of consent, and the accused's knowledge of that lack of consent." [Emphasis added] 1. It was, in contrast to the complainant's evidence, Mr Dedeoglu's evidence that the complainant was awake at all relevant times: "Q. You've heard the complainant say that she was woken up while she was in the back of the Uber- A. Yes Q-to someone kissing her and with their hands down her pants on and inside her vagina. You understand that's what she's saying? A. Yes. Yes. Q. What do you say about that? A. I am not denying anything what happened. I started saying this right from the beginning. We kissed one another. I kissed her neck. She kissed my neck. I kissed her - both of her nipples…her stomach. Then the penetration took place. All those things took time. It is not a sort of saying an instance she woke up and she was being kissed. We started to kiss and respond to one another together. Q. By that answer, are you saying that the complainant was not awoken in the middle of any sexual activity? A. Definitely she was awake, and she was awake when we were talking to another and also during the sexual thing happening." 1. 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: "[108] In this case, were the jury to have considered that the basis for the lack of consent by the complainant was her unconsciousness, then the jury would need assistance, for the question was one of some complexity where it was not asserted by the Crown that she was unconscious during the whole of the episode but, as described 'in and out of consciousness'. Indeed, it was not clear precisely when she was not conscious. [109] The trial judge did not address that issue at all, directing the jury only to the question of consciousness in a general way. Accordingly, leave should be granted and the issue addressed. [110] The direction of the trial judge was as follows: Before you can consent to an act of intercourse or anything for that matter, you must have the opportunity to do so. What that means is if a person is asleep or unconscious at the time that an act of intercourse occurs, they cannot have consented because they did not have – unless of course they agree before they fell asleep or something like that but let's not worry about those complications; that the person cannot have consented if they were unconscious at the time because they were incapable of consenting. They had no opportunity to consent freely and voluntarily. [111] The Crown pointed out what her Honour had later said about the issue of consent: Whether at the time that the intercourse occurred, [the complainant] consented to that act of penile-vaginal intercourse. What the Crown has to prove is the negative of course. The Crown must prove beyond reasonable doubt that [the complainant] did not consent to that act of sexual intercourse. [112] This, the Crown submitted, made it clear to the jury that the Crown had to prove the absence of consent by the complainant for the duration of the sexual intercourse. [113] In our view, that is by no means clear from those directions. A person can withdraw consent at any time and thereafter the continuation of intercourse is an offence: Ibbs v The Queen [1988] WAR 91 at 93-4. [114] It may be accepted that a person who is unconscious is not capable of giving consent to intercourse: R v Mayers (1872) 12 Cox CC 311; R v Young (1878) 14 Cox CC 114. The Crown case on consciousness, however, was not that the complainant was unconscious at all relevant times, but that the complainant lapsed in and out of consciousness. [115] Whether lack of consciousness during intercourse means that consent is withdrawn is a matter of fact; it is not necessarily so. The direction does not address that issue at all. [116] Thus, if the complainant consented prior to falling unconscious and, when she regained consciousness after, perhaps, a short period and continued to participate actively in the intercourse, the jury may have, if properly instructed, found that there was no lack of consent. It may be that, as pointed out in Saibu v The Queen (1992) 10 WAR 279 at 292, consent to the continuance of intercourse beyond consciousness may have been given, but that is a question of fact for the jury. Clearly, the jury would have to have been carefully instructed as to whether there was any basis for the absence of consent during any period of unconsciousness on the whole of the facts. This was not addressed." 1. 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. 2. 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. 3. 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. 4. 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. Her Honour's directions concerning how the jury should approach the task of evaluating the evidence were comprehensive and unexceptionable. They were as follows: "It is for you to assess the various witnesses and decide whether they are telling the truth. You have seen each of the witnesses as they have given their evidence. It is a matter for you entirely as to whether you accept or reject that evidence. Your ultimate decision as to what evidence you accept or reject may be based on all manner of things, including what the witnesses had to say, the manner in which the witness said it and the general impression which he or she made upon you when giving evidence. In relation to accepting the evidence of witnesses, you are not obliged to accept the whole of the evidence of any one witness. You may accept part and reject part of the same witness' evidence. The fact that you do not accept a portion of the evidence of a witness does not mean that you must necessarily reject the whole of the witness' evidence if you think it is worthy of acceptance. Each witness has given evidence about things they said they have remembered. How well a person might remember something depends on many different factors, including the importance of the incident to that person, that person's capacity to lay down an accurate memory in the first place, their capacity to retain that memory and its associated detail and their capacity to recall the memory and articulate it. Reliability depends upon two different but overlapping factors. One factor is the witness' honesty and the other is the witness' accuracy. There are many factors which can have a bearing upon a witness' honesty. In considering the question of honesty, you might consider the impression that the witness made upon you. Demeanour and impression are important and valid factors to take into account, although they alone do not determine the honesty or accuracy of the witness' evidence. If you conclude that a particular witness has been doing his or her best to be honest, you would need to move on to the second aspect of reliability, which relates to the witness' accuracy. You have heard that some witnesses consumed alcohol, and you would need to consider if, or to what extent, that impacted upon their observation, memory or reliability. A witness can be perfectly honest and accurate, or perfectly honest yet completely or partly inaccurate, or a witness may be dishonest. If I happen to express an opinion or view on the facts, or you suspect that I may be hinting at an opinion that I hold, you should ignore it. It is not my function as the judge of the law to try and persuade you one way or the other. And whilst I may mention certain parts of the evidence to you, as have counsel, it is necessary for you to consider all of the evidence." 1. 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. 2. 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. 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. Her Honour's directions about which this ground of appeal complains were as follows: "The Crown relies upon the immediacy of the complaints and the consistency of the complaints. If you find that the complaints were made substantially to the effect as described by those witnesses, then you can use evidence of what was said in the complaint, as some evidence that such assaults did occur. That is you can use it as some evidence independent of the evidence given to you of that incident by the complainant in the witness box. The law says that because of the circumstances in which the complaint was made, the jury is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against the accused. A jury is entitled to find that the complaint was made at a time, and in a manner that would indicate that the allegation was reliable; that is that the allegation is less likely to have been fabricated by the complainant, and more likely to be accurate." 1. 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. 2. 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: "You should bear in mind that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. It does not become more reliable just because it is repeated. The accused has not challenged that the complainant made the complaints to others and in the terms the evidence was given. The accused case is that the acts complained of were consensual." 1. 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. 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. 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. 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. This analysis is conveniently encapsulated in the Crown's written submissions in this Court as follows: "247 The forensic decision defence counsel made in an attempt to address the strong evidence of complaint (in terms of both the 'distress' shown and the consistency of account), was to suggest that it arose from a change of mind on the part of the complainant. The argument was, as initially made in defence counsel's closing address, that despite initially consenting to intimacy with the applicant, while engaging in that intimacy she had changed her mind and decided she had, in effect, made a bad decision. The argument, as initially made in closing address, was that the complainant's distress was explicable not as a consequence of the alleged assaults as [sic, but] because of her regret at making that bad decision. Implicit in the argument was that the complainant's account of waking mid-assault and assertion of non-consent ought be doubted. The relevant content off defence counsel's closing address was: (T463.45ff) 'Like I said, ladies and gentlemen, we don't live in a perfect world. We can't compartmentalise everything in a perfect way. Things happen. Things happen, and people might change their mind and they might even have regrets about things that have happened. We don't live in a perfect world. We're also human. You shouldn't bring impossible standards, I suggest, ladies and gentlemen, to bear upon this matter. There has got to be a degree of realism about the process'." 1. 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: "There are probably more actions that you can see in the evidence that I haven't referred to. There's the pulling of the head closer to her, her body. All of these, ladies and gentlemen, are positive actions and we know that they're positive actions consistent with consent because we've all been out in the world and we've all got these life experiences and common sense. Use those experiences, that common sense, to assess whether these actions are consistent with consent. Clearly, ladies and gentlemen, a point in time was reached where the complainant was unwilling to continue with what was going on sexual wise in the Uber. Even the accused says that point in time was reached at which point, no further sexual activity occurred. Although she denied it, ladies and gentlemen, I suggest to you that she changed her mind at that point in time. She even spoke about the forceful penetrations being uncomfortable, that consistent with the complainant changing her mind at that point, consistent with that, I suggest that what you have seen in the form of what the Crown has referred to as complaint evidence starting with the Snapchat and call to [SO], what we see there, I suggest is evidence of her regret at that point in time. Regret for what she did." 1. 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: "HER HONOUR: Thank you. Could I just ask one matter of you, Mr Norrie. If you could take me to it, if there is transcript. I didn't recollect you asking any questions of the complainant about whether what occurred was that this was a case of immediate regret. NORRIE: No your Honour. I asked the complainant about change of mind and I was just suggesting that because of the change of – if you accept the change of mind it may be a regret. It's more a submission, your Honour. It was never put to the complainant. HER HONOUR: So where was the question that deals with the change of mind? NORRIE: Yes, your Honour. I think it's 224, your Honour, towards the bottom. HER HONOUR: At 224. That's a different question, isn't it? NORRIE: Line 37, the question about changing of the mind. HER HONOUR: But that's when she still with the accused. The point I'm coming to is Mr Norrie's submission that this was an occasion --- SOLICITOR ADVOCATE: Your Honour, we've searched the transcript for the terms 'shame' and searched the transcript for the term 'regret', and there's no hits. I had noted down this issue and I was not wanting to jump into it without looking at the transcript, but your Honour is right. I don't recall that being put fairly and squarely to her. NORRIE: Your Honour, change of mind, page 224, line 30, 'Q. I suggest to you, ma'am, the point of time in the back of the Uber when you simply changed your mind about continuing with sexual activity with the accused. What do you say about that?' And then there's an answer given. 'Q. I suggest to you, ma'am, that the moment you changed your mind about sexual activity continuing the accused stopped. What do you say about that?' So the change of mind has been put, your Honour. The reference to regret, your Honour, was a submission, and it was put to the jury in such terms. SOLICITOR ADVOCATE: At the bottom of 220 and top of 221 there's some questions about her feeling upset, and she became uncomfortable when there was some force used. Over the page, 'You're being upset was solely due to there being a degree of force.' The difference with the shame and regret submission, your Honour, is that it's targeted at the complaint, as a reason for the complaint, and there was never anything put to the complainant at all about an alternative explanation for the complaint. It was never said, 'You complained for this reason,' or, 'You complained for that reason.' HER HONOUR: Anyhow, the note I had was that the submission was along the line that she changed her mind and then regretted her conduct, and then there was a comment about shame. NORRIE: Yes, your Honour. HER HONOUR: Perhaps we should look at the transcripts. I know you had some notes, but you also weren't reading entirely from notes. NORRIE: Yes, your Honour. HER HONOUR: So I just want to really look at the phrasing. NORRIE: Your Honour, just to be candid with the Court, I didn't put to the complainant anything about regret or shame. When I addressed the jury on that I'm addressing it as a submission as part of my argument. HER HONOR: Well, that was my concern. NORRIE: Yes. HER HONOUR: Because that's quite an— NORRIE: It may be-- HER HONOUR: --important aspect that the complainant wasn't given any opportunity to respond to— NORRIE: If your Honour wished – if there's any concern, I don't have an issue with this, your Honour. If your Honour – I haven't discussed this with my learned friend, but if your Honour wished to address it and if my learned friend wished to address it, it may be put to the jury that such propositions were not put to the complainant and they were put by Mr Norrie as submission only and any concern – I don't believe there is any, but I'm more than happy if – because that's my intention, your Honour. I'm not shying away from that. I concede it wasn't put to the complainant and I only say so, that is, reference to regret and shame, in submission only. If my words, which your Honour may be able to review overnight – I made it clear, I suggest, in submission form, nothing more. HER HONOUR: No, I understand that. NORRIE: Yes. HER HONOUR: But I think that's semantic and maybe lost on the jury. NORRIE: Yes, your Honour. HER HONOUR: If that's— NORRIE: That's my only intention, not— HER HONOUR: --an explanation or a scenario for the complainant's conduct, then it really should have been put to the complainant if it was to be relied upon on any basis. NORRIE: Yes. HER HONOUR: So even though you're saying it's just— NORRIE: Change of mind as put to the complainant. HER HONOUR: But that's in a different context. NORRIE: Yes. HER HONOUR: Not the way you've done it. NORRIE: Yes. HER HONOUR: So I think something does need to be said. NORRIE: I'm— HER HONOUR: So you would be— NORRIE: I accept that has to happen, yes. HER HONOUR: Do you want me to deal with it, considering we're already in summing-up? NORRIE: Yes, your Honour. HER HONOUR: Or is that something you want to deal with by saying upon reflection you've looked at your address and you accept that that was not put to the complainant. So I will do it whichever way you prefer. It may have less impact if I just incorporate it into my summing-up. NORRIE: Yes, your Honour. HER HONOUR: But if you would rather withdraw it. NORRIE: I'm comfortable if your Honour were to address it in an appropriate way. HER HONOUR: Are you content with that course, Mr Crown? SOLICITOR ADVOCATE: Your Honour, the reason why I didn't jump up before your Honour mentioned it was I was ruminating on what to do about it, because by addressing it, whether it's your Honour or counsel, it has the real risk of just highlighting that submission, making it seem to be something really significant in the case, where the jury may not have any idea of why that's being re-agitated by anybody, because they won't understand the intricacies of the rules of fairness in the trial. It may be something that's misunderstood and misused by them, that it's something that's actually quite important that they need to take account of. It's a difficult situation, your Honour, because they won't – the fact that it wasn't put to her, they can then be told, 'Well, you wouldn't know what the answer was.' That direction only invites speculation that maybe she would have agreed. So it's problematic. It is problematic. NORRIE: Your Honour, one thing I just – HER HONOUR: Well, she was unlikely to have agreed because it's not consistent at all with any of her evidence. But anyhow– SOLICITOR ADVOCATE: But the jury is, on one hand, told not to speculate. On the other hand, they're told there's no evidence as to what her answer would be, and then if it's raised in this unusual way in a trial where there hasn't been anything like this, you know, it's been a very orthodox proceeding thus far. I would invite – given that it was never put – (1) it was never put to her; (2) the complexities and possible prejudice to the Crown of trying to undo what's been done, I think the proper course – it's a matter for my friend – but the proper course would be just to dispense with that submission. It's a difficult situation, your Honour. NORRIE: Your Honour, all I was going to say is this. I'm not – how do I say? I'm not defending my position, I'm just explaining, your Honour that the complainant, she disagreed with the proposition of changing her mind. So whether– HER HONOUR: That's very different, Mr Norrie. NORRIE: Whether there was any— SOLICITOR ADVOCATE: I would have addressed it, your Honour. If it was put to [the complainant] fair and square. I would have addressed it in my closing and I would have said, 'I think Mr Norrie is going to address this and this is what the Crown will say.' I don't have that opportunity. HER HONOUR: There is a concern about it. NORRIE: Yes, your Honour. HER HONOUR: I don't comprehend that any of the three of us don't understand there's a concern about it, because it's not based on the evidence and there is an unfairness in it being left in the manner in which it is. It needs in some way to be redressed. Now, all three of us are in agreement on that. It's just what the pathway is for that. Even if Mr Norrie was to withdraw it, as you're suggesting, I would still need to say something about it because it's something that has to come from the bench on it as to why it's being withdrawn. The reason I was suggesting Mr Norrie might want to do it is so that the jury understand he's withdrawing it rather I am censuring him in some way. But at the same time I can understand that it may come across as having less impact if Mr Norrie doesn't say anything. So I'm concerned that this might be used against the accused. But it definitely needs something said to address it. So did you want to look at precisely what was said, and you can suggest anything that you're wanting me to say about it. I will take on board what you advance. Is that a procedure you're both content with?" 1. In due course, her Honour returned to the issue, as anticipated, in the following terms: "Mr Norrie also suggested that the complainant made complaint to [SO] and then to others because she regretted her conduct and felt shame. I remind you that the evidence is that prior to making complaint only the accused and the complainant were aware of what occurred in the car. The complainant was not asked any question about experiencing regret or shame, and that being the explanation for why she complained. As a matter of fairness, if a submission is to be made about what a witness said or did then a question or questions should be posed to them so they are provided with an opportunity to respond or explain. In making the submission it is without an evidentiary basis, and it impermissibly invites speculation. There is no evidence in this trial that the complainant felt shame or regret. Although the accused said the acts were consensual, she denied consenting to any act. She said she complained about what happened." 1. The Crown submissions in this Court were then as follows: "[250] It may be accepted that defence counsel ought to have put to the complainant that her 'distress' and subsequent complaints arose out of her realisation that she had made a bad decision, that is, invited and then consented to sexual intimacy with a stranger. The question, in determining this ground of appeal, is whether or not his failure to do so resulted in a miscarriage of justice and, in particular, there is a 'significant possibility' that the error 'affected the outcome of the trial'. [251] The Court would conclude that there was no miscarriage of justice as there was not a significant possibility that the error affected the outcome of the trial. As detailed below in submissions [that] address the unreasonable verdict ground (Ground 18) the Crown case was a very strong one. On the other hand the applicant's explanation for his intimacy was, as the trial [judge] described [in] her sentencing judgment, 'highly improbable'." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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). 6. 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). 7. The following observations of Gleeson CJ in Birks (from 685-692), endorsing the remarks of King CJ in Manunta, should be noted: "In the present case the inexperience of trial counsel gave rise to an unusual and extreme situation. This is not merely because he forgot to ask some questions in cross-examination. That happens to the best and most experienced of advocates. There are two features of the case which take it out of the ordinary run. In the first place, the matter concerning the torch and the alleged punching was not only of importance in relation to the events leading up to the sexual assaults, it went to the whole issue in relation to the first charge. Counsel virtually failed to cross-examine at all about that serious charge. Secondly, there were various ways in which the problem, once it became apparent during the cross-examination of the appellant, could have been dealt with. In the running of a trial, counsel often have cause to regret things they have done or left undone. Damage control is part of the art of advocacy. There was ample scope for that here. The position in which the appellant was left was indeed invidious. It was being put to him, in effect, that the story he gave in evidence was different from that he had given his lawyers. As a matter of fact, it was not. His denials were contrasted with the conduct of his counsel. The matter was said to go to his credibility. There was available evidence to support him and to rebut the inference the jury were invited to draw from counsel's conduct. Counsel and his instructing solicitor both knew that the interpretation the jury were invited to put on counsel's actions was erroneous and they heard their client assailed in cross-examination with that interpretation. All this was occurring, not after the evidence closed and when it was then too late to repair the damage, but at a time when the mistake could have been rectified. The failure to deal with the matter was not the result of 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. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing. It should not be thought, however, that the failures of the appellant's counsel to which attention has been drawn constituted the only respect in which the proceedings were affected by error. There was, unfortunately, a combination of circumstances which together resulted in what I regard as a miscarriage of justice. They all related in one way or another to the original inadequacy of the cross-examination of the complainant, and the consequences that flowed from that. … The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. … However, as in the present case, it is often suggested that the practical effect of the rule goes a good deal further. It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, that that some interests of fairness may well produce various consequences of the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a 'comment' following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of those comments may be available: see, e.g., R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for caution. What happened in the present case is an excellent illustration of those considerations. They were referred to by King CJ in the Court of Criminal Appeal in South Australia in R v Manunta (28 July 1989, unreported). In that case a trial judge had drawn attention to the fact that the accused's counsel had failed to put in cross-examination certain exculpatory matters to which the accused later made reference. The trial judge drew the jury's attention to the rule in Browne v Dunn and said: 'You are entitled, for example, to ask yourselves, ladies and gentlemen, could these be matters of recent invention be concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving to the police officers the opportunity of contradicting this proposition?' King CJ said: 'It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross0examination because he thought it would serve his interests. The cogency of such an inference might be open to question. It is possible that the idea that the police were referring to notes other than those made at the time might not have occurred either to the appellant or to his legal advisers. The appellant may have realised it only when the notes were placed in his hands during cross-examination. No such explanation, however, was elicited in re-examination. I think that the point was open for the consideration of the jury; its weight was for them to determine.' However, his Honour also went on to say: 'I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing-up. It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds.' I would respectfully adopt those views. I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth. The failure of trial counsel to cross-examine the complainant as to how she suffered her facial injuries was plainly in contravention of the requirements of the rule of professional practice discussed above. If the complainant had been confronted with the suggestion that her injuries had been caused by a torch and given the opportunity to deal with it, she might have dealt with it very effectively. She might, for example, have given some details about the size or weight of the torch (which was apparently not available at the trial) which would have indicated that it was unlikely that such an object could have caused the particular injuries she suffered. If considerations of fairness had been all that was involved, and an appropriate application had been made, she might have been recalled for further cross-examination. That would have been a matter calling for an exercise of discretion by the trial judge. In the events that occurred, however, the issue was pursued by the Crown Prosecutor, and taken up by the learned judge, on the subject of the credibility of the appellant's evidence, in a manner which was consistent with the need for caution stressed by King CJ; a need which although neither the Crown Prosecutor nor the judge realised it at the time, was very much in point in the circumstances of the case. The combined effect of these various errors was that there was a miscarriage of justice. The appellant did not receive a fair trial." 1. 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]: "As Gleeson CJ observed in R v Birks, it is one thing for the cross-examiner to point to the unfairness to a witness who has not had the opportunity to comment, it is quite another to suggest that the result of a failure to observe the rule of practice is that a person should not be believed." 1. In R v Miletic [1997] 1 VR 593, Winneke P, Charles and Callaway JJA said this at 600: "This was not a case where the ineptitude of counsel led to the suppression of evidence of critical importance (e.g. Re Knowles and R v Perry and Harvey), or the unforeseen and wrongful admission of inadmissible evidence of a prejudicial kind (e.g. R v Sarek) or the drawing of unforeseen and prejudicial inferences from a failure to cross-examine according to clear instructions given (e.g. R v Birks). On the contrary, this was a calculated decision made by experienced counsel in the hope of gaining a forensic advantage. Notwithstanding that the decision was left to him, he sought, with the support of the applicant, to gain advantage by demonstrating to the jury that the applicant, from the earliest opportunity given to him, had denied, and consistently denied, the complainant's allegations, which were said to flow from the bitterness attending the breakup of a long standing, close relationship. It was a decision based upon the hope and expectation that such advantage would outweigh the anticipated risk that attended the applicant's inability to adequately explain the untruths contained in the record of interview. As we have already said, decisions of that kind are constantly made by counsel as part and parcel of the adversarial system. There can be no suggestion that there was a departure from the rules of proper practice and procedure, in the sense that the applicant did not have a fair trial according to law. On the contrary the decision made by counsel took advantage of the rules of procedure available to him. The fact that, in hindsight, the decision did not work the advantage for which counsel and the applicant hoped is not to the point. Decisions made during the course of a trial as to the best tactics to follow are decisions which 'depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions': Re Knowles at 769 . As the court in that case went on to say: 'Decisions such as those, even if an appeal court thought that counsel had made an unwise or imprudent decision, would almost never found a successful appeal based on miscarriage of justice'." 1. 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: "[54] The appellant submits that the trial judge erred in referring to the failure of the appellant's counsel at trial to put to Ms S the proposition that the appellant had not inserted his fingers in her vagina because that reference may have been taken by the jury as an invitation to conclude that the appellant was not challenging the allegation of digital penetration. The appellant has formulated his contention in relation to this ground of appeal on the basis that the trial judge misapplied the rule in Browne v Dunn. [55] While this formulation of the argument may not be entirely appropriate, the comment made by the trial judge is troubling. The High Court has recently emphasised the need for care on the part of a trial judge in directing a jury to attribute significance to the failure of counsel to put an aspect of his or her client's case to a witness on the other side, especially where it is otherwise apparent that the proposition which was not put is in issue. In MWJ v The Queen, Gummow, Kirby and Callinan JJ said:[12] 'We should next say something about the rule in Browne v Dunn, which, in substance, both the trial judge and the Chief Justice thought should be applied here against the appellant, its application in criminal cases generally, and his Honour, the Chief Justice's reference to the appellant's counsel's failure to seek to have the complainant recalled for further cross-examination. The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit. One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination. In this case, the appellant was confronted with a forensic dilemma: whether to seek to have the mother's evidence of her daughter's assertions of repeated misconduct at Sutcliffe Street excluded by reason of its prejudicial effect, or deliberately to leave it untouched to provide a basis for a submission that a fundamental inconsistency tainted the whole case. In the event the appellant chose the former. In that endeavour he failed, but was still able, albeit unsuccessfully, to rely on it as setting up a significant inconsistency. On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution. Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice. The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant's account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel ((1959) 101 CLR 298 … See the discussion of this case in RPS v The Queen (2000) 199 CLR 620 at [27]-[29]; 74 ALJR 449 and Dyers v The Queen (2002) 210 CLR 285 at [120]-[123]; 76 ALJR 1552). In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.' [56] In the present case, his Honour's comment could have been understood as an invitation to the jury to draw an inference adverse to the appellant on a crucial issue, namely, the fact of digital penetration of Ms S. The judge's comment could well have led the jury to conclude that the appellant, in his instructions to his counsel, had accepted the proposition crucial to the complainant by Ms S, and that he had instructed his counsel to contest that proposition in the case by Ms W. It may well be that it was this direction which explains the different verdicts. It is clear from the passage which I have set out from MWJ v The Queen that the rule in Browne v Dunn afforded no basis for the judge's comment. The issue is whether there was some other basis for the trial judge's comment. … [58] … care needs to be taken to ensure that this approach is not applied mechanically, especially where the circumstances suggest that one cannot safely and fairly infer that the cross-examination is an accurate reflection of the party's instructions. In the present case, the appellant's plea of not guilty put the elements of the charge in issue, and the Crown itself tendered a record of interview containing an express denial of the act of digital penetration of Ms S. The trial judge, during the course of the trial, frequently voiced criticisms of the conduct of the trial by counsel for the defence - who was not, I hasten to mention, the counsel who represented the appellant on the appeal in this Court. At one point, his Honour admonished defence counsel that if she did not have the competence to deal with serious trials, she "shouldn't be doing them". At another point, his Honour's exasperation with what he perceived to be the incompetence of the appellant's counsel moved him to say that he "felt sorry" for her client. It was readily apparent that the proposition that there had been no digital penetration of Ms W by the appellant was only put to her by the appellant's then counsel in her pre-recorded evidence after the appellant's counsel had been prompted to do so. None of the lawyers involved in the trial can have been in any real doubt that the appellant's case was that he denied the digital penetration of Ms S. The jury, however, were not warned that a reason (and indeed a likely reason in the circumstances) which might explain why this aspect of the appellant's case was not put to Ms S was that counsel for the appellant had simply overlooked the point. [59] There were, therefore, strong considerations of fairness which militated against an invitation to the jury to infer a tacit acceptance by the appellant that he had digitally penetrated the complainant, Ms S, from the manner in which his counsel had conducted the cross-examination of Ms S." 1. Observations by Nettle JA in R v Coswello [2009] VSCA 300 should also be noted: "[6] It follows, in my view, that it was improper for the prosecutor to suggest to the jury that defence counsel had not done what was needed in order to put the defence case to the complainant, and that the judge erred by directing the jury that it was open to draw an adverse inference from the way in which the complainant's cross-examination had been conducted. [7] Even if defence counsel had not done enough to put the defence case to the complainant, it is plain that the rule in Browne v Dunn does not apply to criminal proceedings in the same way or with the same consequences as it does in civil proceedings. It requires considerable care and circumspection. Hence, as the Queensland Court of Appeal observed in R v Foley [2000] 1 Qd R 290, 291: 'While variations in circumstances of particular cases may call for different responses, it is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross- examiner has deliberately preserved a case from damage by preventing it from being tested, and that this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is, however, fraught with difficulty. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence … of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel.' [8] It follows, I think, that if it were in order to give any sort of direction on the point in this case, the judge would not have been warranted in going any further than to outline the rule in Browne v Dunn and its purpose, and tell the jury that, under the rule, the complainant should have been challenged as to whether offences occurred so that he had an opportunity to deal with the challenge; that he had not been so challenged and thus had been denied the opportunity to respond to the challenge; and therefore that the court had been deprived of the opportunity of hearing his evidence in response." 1. I remain concerned with so much of her Honour's direction, quoted earlier, that said: "The complainant was not asked any question about experiencing regret or shame, and that being the explanation for why she complained. As a matter of fairness, if a submission is to be made about what a witness said or did then a question or questions should be posed to them so they are provided with an opportunity to respond or explain. In making the submission it is without an evidentiary basis, and it impermissibly invites speculation." 1. 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. 2. 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. 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. This ground of appeal has no merit. Ground 18: Verdict is unsafe and unsatisfactory. Verdict cannot (be) supported by evidence. 1. 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]: "[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact."[38] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect[39], the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial[40]. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." 1. See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 621‑622 [49]‑[51], 623 [56]. 2. 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]. 3. 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. 4. 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. 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. 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. 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. 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. 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. Her Honour's directions have not given rise to any miscarriage of justice. The proviso 1. 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. Mr Dedeoglu referred the Court to its decision in Rees v R [2010] NSWCCA 66, in which the following appears: "14 Prima facie, an error of this nature in a case of this nature requires the Court to quash the conviction and order a new trial. The Crown has invited the Court to apply the proviso to s 6 of the Criminal Appeal Act and dismiss the appeal because there was no substantial miscarriage of justice. In order to convict the appellant on the second count, the jury had to accept the complainant's evidence about the events on the morning of 30 September and in all probability, they also accepted her relationship or context evidence. The acquittal on the first charge was justified by the complainant's confusion or mistake about when the relevant events had occurred. The jury were entitled to reject that part of her evidence without forming an unfavourable view about her overall reliability as a witness. 15 The complainant's evidence on the second charge was uncorroborated, but her prompt complaints to her partner and others, and her conduct at that time, was consistent with her evidence. On the other hand, there was also a strong defence case, at least on the face of the record, in relation to the lack of any opportunity for the appellant to make inappropriate sexual advances and have inappropriate sexual contact with the complainant on many occasions during the lengthy period between the events charged in the first count and the events charged in the second. 16 The appellant completely denied the evidence given by the complainant about the offences and his intervening conduct, and in particular he denied that sexual intercourse took place on the morning of 30 September 2006. There is no direct corroboration of the complainant's evidence about the second offence. 17 The case is essentially one of oath against oath, although as I have previously said, there was corroborated evidence of prompt and consistent complaints on and after 30 September. 18 Nevertheless, one way or another, all the subsequent complaints and conduct come back to the complainant herself. There is no independent corroboration of her primary evidence about the offence. 19 Crown counsel was asked by the Court whether she was aware of any case where this or a similar Court has applied the proviso where there has been a serious misdirection and the case is essentially one of oath against oath: 20 Crown counsel was not able to refer the Court to such a case and the Court is not aware of any. The evidence was highly prejudicial though admissible for a limited purpose. It was essential that the jury be given a clear instruction as to the limited use they could properly make of that evidence. In particular they had to be instructed that they could not use it to demonstrate the propensity of the accused to offend in a sexual manner against the complainant. This is a difficult guideline for any jury or indeed any judge to follow in assessing such evidence. In view of its prejudicial nature, I cannot be judicially satisfied that a jury properly instructed about the use they could make of this evidence would inevitably have convicted the appellant." 1. 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. 2. 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. 3. 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. APPEAL AGAINST SENTENCE 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. I consider that there should be a finding of special circumstances for the reasons identified by her Honour. 7. 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. Allow Mr Dedeoglu's appeal against sentence. 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. Nominate the following indicative sentences: 1. Count 3, 6 months imprisonment. 2. Count 1, 12 months imprisonment. 3. Count 2, 6 years imprisonment. 1. 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. 2. 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. 3. 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. 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. 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. 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. 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. 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. 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. 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. 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): A. INTERPRETER: I repeated again, "We arrived. You can go home." But at the time she had crossed her legs and she was leaning to the window of the rear passenger door. The tip of her right foot, because she had crossed her legs, nearly touched under my armrest of the position where I was sitting. And then just jokingly, in joking manner, I just shook her boot and I told her she can go. Q. What happened then, sir? A. INTERPRETER: When as I said I was doing, shaking her boot as if I was joking, after that I noticed she was smiling. I said, "Tilda [scil Tina, the name in which the booking was made, which the applicant believed was the complainant's name] are you really asleep?" She smiled again. I said again, "We came to your home. You can leave, you can go." As if she was half joking, she said, "I don't want to go home." Q. Did you say anything in reply to that comment? A. INTERPRETER: I found it was funny when she said she doesn't want to go home. We first stopped in front of her house, and then I asked these questions of whether she was thinking of changing the destination. When I asked her which destination she wanted to go, she answered to me, "Your house." Q. Now, after she told you that she wanted to go to your home, did you say anything in response to that? A. INTERPRETER: I didn't think it was something serious she was mentioning, and I have smiling said to her, "We can't go to my home. We can't go to my house." At that instant, I had a question mark in my mind, what she was really meaning. Q. What happened then, sir? A. INTERPRETER: Then she replied saying that, "We can go elsewhere." At the time I was trying to fully understand what she was trying to tell me. Because my English wasn't very good at the time […]. […] A. INTERPRETER: I said to her, "At this time of the day, just about everywhere is closed." She responded to me saying that, "We can find some place," or places. Q. What happened then? A. INTERPRETER: I understood she didn't want to finish the night. Then we start talking normally. I ask her question, "How was your night?" She said, "I had a very good night but I had small problems with the girls." We stayed in that position approximately for ten minutes. Apart from what I just said in regards to what we were talking about, I don't recall anything more than that. I mean, I don't recall the all details of what we said to one another. When she said, "We can find places," then my response was, "If you want, we can go to the beach." Q. What happened then? A. INTERPRETER: She was using the word "crazy". She responded saying that, "It's going to be crazy." She was trying to motivate me, saying those things, "It's going to be a crazy thing." At the time, I thought she wanted to have something like that. When she said it was going to be a crazy thing when we go to the beach, I just want to make sure that it was going to be something all right, and then I said to her, "Can we do something in the car?" Q. Did the complainant respond to your question, "Can we do something in the car?"? A. INTERPRETER: She said the same thing, "It's going to be a crazy thing." Q. Was anything else said about doing something in the car? A. INTERPRETER: I continuously ask her, "In reality, do you really want to do this thing?" She was responding, saying, "Sure." Then I said to her, "We're going to beach." She said, "All right." She said, "Let's go." As I said before, what we had spent time in that position was about ten minutes, and after that we move away from there, because the beach is very near to that position, about 250 metres away. Q. Was anything else said while inside the car? A. INTERPRETER: As I said, we talked about eight or ten minutes in that position. But at this moment, I can't really understand in full what was said at the time. Q. Now, while you were inside the car with the complainant at this location - that is outside the grey building as we see in photograph 4 of exhibit 1 - what observations did you make of her? A. INTERPRETER: When we first parked in front her house, I had noticed then she was asleep and she was looking tired. But when we parked at the second position, after I shook her boot and she woke up, she was fully aware of herself. We were sort of joking to one another and we were speaking to one another. This is after the first or two minutes. She was fully awake and conscious. She was talking, very aware of things what she was saying. She was responding very clearly. 1. 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: A. INTERPRETER: When we arrived there I turned back and looked. She was in a sort of leaning back position. At this time I get confused. A while ago she was motivating me to do this. When I see her in that position at that point I thought to myself this is something not right. Because of that reason my intention to have that something happening like that has reduced. The only thing I did I just called her. Then I called her and she immediately responded. I ask her whether she is well. She said, "Yes. I am well". After that she invited me to the back seat. After exchanging a few words between ourselves and then I went to the back seat. 1. 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. 2. 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. 3. 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. 4. 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. 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. 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. The complainant gave this evidence about her arrival home, which was not challenged in cross-examination: [I sent SO] a Snapchat saying something to the likes of "I've been taken advantage of." And just a photo and - of some text to her. And then I kind of - I guess - walked as quickly as I could home. I was crying at this point and then […] maybe a minute later, [SO] had seen the Snapchat and she called me straight away. And she was on the phone to me, kind of just […] comforting me and asking me what happened and I said to her - I honestly don't know exactly what happened in that phone call because that was - it was all quite a distressing time. I was crying and – […] she's telling me to go home and tell my mum because she was waiting up for me. Q. What happened after that phone call with [SO]? A. So I got home to my - kind of - driveway and I was still on the phone to her, so I was finishing up the phone call and I was very upset and I was standing in the driveway, just crying - kind of pulling myself back together because I was very scared to tell my mum because I wasn't really ready to. I didn't - I was just scared to. So I - I was just in the driveway ..(not transcribable)..to home. And make myself - I - wipe my tears away and then I finally just walked inside and my mum had opened the door and she kind of noticed that I - my face was red from crying. And so she said "What's wrong?" And I kind of just brushed it off and I wasn't - didn't have the courage to tell her what had just happened. So I just said something like: "Oh, it's boy issues. Don't worry about it, mum." [She kind of just brushed it off and we - I went off to bed and I went to sleep. 1. The complainant's mother gave the following account of the complainant's arrival home: Q. Between sending those texts at 1.12, 1.18 and the phone call at 1.49, have you been awake? A. A hundred per cent awake. […] I was so awake. I tried to take my mind off it […] And our bedroom is right at the front of the house, and it's very quiet and I was listening out for her to come home. Q. At around 1.30 am, you remember hearing a car pull up outside. A. I do. I also remember seeing the lights reflected on the ceiling of our bedroom through the venetians, and I waited for the sound of the door to close or the gate to open. We've got a very squeaky gate, and it didn't, so I thought, "It's not her." Q. At about 1.50 am, did you hear [J]'s voice? A. I heard [complainant's] voice. I got out of bed. I walked over to the blinds. I peaked through the blinds. I could see her walking towards the gate and she was crying. She was very distressed. I remember it as clear as day. I will never forget it till the day I die. She's got glasses. She was rubbing her left eye, and she was crying. She was very distressed, so, of course, my heart sank. I immediately went to the front door. […] […] A. […] The front gate is about ten metres from the front door. By the time I got to the gate, [J] had collected herself and I said, "[J], [J], where have you been?" […] I said, "Why didn't you answer my text?" She said, "I was on the phone to [SO]." I said, "What is it? Why are you crying? Why - why are you upset? I saw you at the gate." She said, "It's nothing. It's nothing." I said, "Why were you - upset?" She said, "It's nothing, it's a boy." And my emotions went from compassion and concern to anger because I could smell alcohol on her and I told her so. And so I said, "That's it" for 2am curfews. And then I remember very clearly, she wasn't defensive, she just walked upstairs. […] 1. The complainant slept the night but woke early and sent text messages to SO at about 7:00 am, including the following: Omg [Oh my God] i just looked, the Uber ride stopped at 1:31 but i got home at 1:55 that means I was in the car with him for like 15-20 mins holy fuck I want to cry It was open to the jury to rely upon this as a complaint, very close in time to relevant events, specifically recording that the complainant had not been awake and was not conscious of what had taken place during the 15-20 minutes after 1:31 am. 1. Other text messages to SO at around the same time were as follows: I am never getting in an uber alone that drunk again this is not okay like he fully took advantage of me it's so hard though bc [because] i feel like it was my fault bc i was drunk and shouldn't have been so sleepy but i couldn't help myself like i woke up and it was happening The jury could rely upon these messages as not only proximate complaint of having been asleep, rather than awake and consenting, but also as explaining why the complainant did not tell her mother what had occurred immediately on her arrival home. Attributing her sleepiness to alcohol, she felt that she had failed to protect herself by allowing herself to become affected to an extent that her mother would disapprove. 1. 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. 2. The complainant eventually related the events to her mother at about 4:00 pm. The mother said this: She told me that she woke up in the Uber and the Uber driver was kissing her and had his hands down her pants. The mother said that this account emerged in broken fashion from the complainant, through tears and distress. Her answers included the following: A. I said, "[J], it's okay. Whatever you need to tell me, it's okay." And eventually, she spat out the words, "Uber driver". A. I was calm. I just said, "Oh, [J]". She's crying, she's distressed, she's - how do you tell your mother that? […] A. Yeah. She said - she - she said, "I can't believe this has happened to me. I don't want this to be a reality. Why me? I just want this to go away." Q. All right. When you were having this conversation with [the complainant] in your bedroom, what was her demeanour like? […] A. She was in tears. Very upset, couldn't spit it out - she couldn't spit it out. She didn't know how to say it. […] 1. 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. 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. 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. 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. 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. 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. 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. 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: [An appellate court exercising jurisdiction under the common form criminal appeal provision] will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. 1. 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 That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused. 1. In Nudd v The Queen Gleeson CJ then said this at [8]-[9]: [8] Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Cody and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred. [9] […] It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct. 1. In the same case and to similar effect, Gummow and Hayne JJ made these observations at [24] (citations omitted): [24] […] "Miscarriage of justice", as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial. 1. 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. 2. 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: whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial. At [118] his Honour applied to the appeal that was then before the High Court a formulation of the test in these terms: What is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial. 1. 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: [120] Terms like "real chance" have been used in the context of explaining a finding of a miscarriage of justice interchangeably with terms like "significant possibility", "perceptible risk" and "substantial risk". Often it has been thought enough to refer to the error or irregularity that has given rise to a miscarriage of justice as "prejudicial" in contradistinction to "innocuous" or occasioning "no real forensic disadvantage". All are different ways of expressing a realistic possibility of a causal connection between one or more identified legal errors or procedural irregularities and the verdict returned by the trial jury. [121] The terminology is unimportant provided it is understood that the requisite analysis in the context of finding a miscarriage of justice is factual. The inquiry is into the tendency or propensity of an error or irregularity to have affected the basis on which the trial jury actually reached its verdict in the totality of the events that occurred in the trial that was had. The inquiry is not into the outcome of a hypothetical trial before a hypothetical jury in which the error or irregularity is assumed not to have occurred. [123] Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" [Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221 at 234, quoted and applied in Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40 at 60 [35] and in Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at 472 [48]], an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. […] 1. 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. 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): Clearly, ladies and gentlemen, a point in time was reached where the complainant was unwilling to continue with what was going on sexual wise in the Uber. Even the accused says that point in time was reached at which point, no further sexual activity occurred. Although she denied it, ladies and gentlemen, I suggest to you that she changed her mind at that point in time. She even spoke about the forceful penetrations being uncomfortable. She changed her mind. I suggest to you, ladies and gentlemen, that consistent with the complainant changing her mind at that point, consistent with that, I suggest that what you have seen in the form of what the Crown has referred to as complaint evidence starting with the Snapchat and call to [SO], what we see there, I suggest, is evidence of her regret at that point in time. Regret for what she did. Now, the fact that a complaint has been repeated, I suggest it's simply a repetition of her regret, her shame of what occurred, consistent I suggest with her having changed her mind. Keep this in mind, ladies and gentlemen, the fact that the complainant has repeated this complaint doesn't make it any more true. 1. 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. 2. 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. 3. 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): [Defence counsel] also suggested that the complainant made complaint to [SO] and to others because she regretted her conduct and felt shame. I remind you that the evidence is that prior to making complaint only the accused and the complainant were aware of what occurred in the car. The complainant was not asked any questions about experiencing regret or shame, and that being the explanation for why she complained. As a matter of fairness, if a submission is to be made about what a witness said or did then a question or questions should be posed to them so they are provided with an opportunity to respond or explain. In making this submission it is without an evidentiary basis, and it impermissibly invites speculation. There is no evidence in this trial that the complainant felt shame or regret. Although the accused said the acts were consensual, she denied consenting to any act. She said she complained about what happened. 1. 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. 2. 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. 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): [123] Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect" [Maher v The Queen [1987] HCA 31; (1987) 163 CLR 221 at 234, quoted and applied in Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40 at 60 [35] and in Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at 472 [48]], an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred. 1. 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): [41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. […] […] [43] […The] appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not "to speculate upon probable reconviction and decide according to how the speculation comes out". But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. […] [44] […] It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty. [45] Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal [that is, to decline to apply the proviso], even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind. [46] It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso. [...] 1. 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. The only ground for which leave is sought to appeal against sentence is as follows: Sentence is extremely lengthy for verdict. This is a ground that the sentence is manifestly excessive. The indicative sentences nominated by her Honour and the aggregate sentence she imposed are set out in Harrison J's judgment at [3]. The applicant seeks leave to appeal against the aggregate of 8 years and 6 months with a non-parole period of 6 years. 1. 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: Albeit approaching adulthood, the victim was still a child who is entitled to safety and protection from predatory sexual conduct. The offender did not respect this entitlement and took advantage of her vulnerability. She was asleep and unable to protect itself. I do not determine that the victim's intoxication contributed to her vulnerability other than rendering her more tired. I determined that the offender knew the victim did not consent. She was asleep and he would have appreciated that she did not and could not consent. She was utilising commercial transport. In so doing she placed herself in a position of trust to the driver that he would transport her safely. The offender took advantage of the situation and breached the trust placed in him to convey the victim safely to her destination. It is a reality of contemporary life that taxis and Ubers are utilised, in the understanding that the user enters a stranger's car with the expectation that they will be taken to their destination without being violated. 1. 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: The nature of the offences is such that there is a strong element of general deterrence and denunciation. There is a legitimate expectation in the community that persons travelling in commercial passenger vehicles should travel without sexual molestation. It is not uncommon that passengers are intoxicated or tired. The predicament is often the motivator for utilising the mode of transport. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. I propose the following orders: 1. Grant leave so far as necessary to appeal against both conviction and sentence. 2. Dismiss the appeal against both conviction and sentence. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. With respect to the appeal against sentence, I agree with the orders proposed by Harrison J at [205]. ********** 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: 09 June 2023