R v Sarkis (No 2) - [2023] NSWDC 479

District Court

New South Wales

Medium Neutral Citation: R v Sarkis (No 2) [2023] NSWDC 479
Hearing dates: 1, 2, 3 November 2023
Decision date: 03 November 2023
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
Pursuant to Part 7A of the Jury Act 1977 (NSW), I order that the jury be discharged

Catchwords:
CRIMINAL PROCEDURE – Trial – Jury – Application to discharge jury - unauthorised material inadvertently before some members of the jury

Legislation Cited:
Jury Act 1977, Pt 7A

Cases Cited:
Ahola (No 6) [2013] NSWSC 703
CroftsvThe Queen (1996) 186 CLR 427
GilbertvThe Queen (2000) CLR 413
HameedvR [2019] NSWCCA 219
Rv Rogerson (No 34) [2016] NSWSC 259

Category: Procedural rulings
Parties: Rex (Crown)
Anthony Sarkis (Accused
Representation:
Counsel:
E Beljic (Crown)
T Gabrial (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Norris Somers Maiit Lawyers (Accused)

File Number(s): 2021/90536
Publication restriction: None

JUDGMENT: EX TEMPORE

HIS HONOUR: The trial of Anthony Sarkis commenced on Wednesday of this week. The trial was short. At about 11.30am yesterday, Thursday, the jury commenced their deliberations.
Mr Sarkis is charged with attempting to break and enter a dwelling house belonging to Keith Godley at Lalor Park, New South Wales, with intent to commit a serious indictable offence, therein namely larceny.
It is fair to say that the trial in the way it was conducted was very much focused on the question of whether the accused was one of the two men identified in CCTV footage engaged in conduct which is said by the Crown amounts to attempting to break and enter into the premises.
The second man in the footage has been identified by fingerprints and has since been charged with offences arising from the same facts with which this trial is concerned and has been convicted.
The Crown’s case as to the identity of the accused is inferential or circumstantial. It is based on the fact that he and the other man in the CCTV footage are known to each other, that there were texts and other messages between them on the morning of the relevant day. Telecommunications records are said to demonstrate the accused was at least in the vicinity of the Lalor Park property on the day, and the person in the CCTV footage looks like the accused, even though his face is obscured, in particular, that there is an identifiable tattoo on the leg of the person in the footage, which is, it is said by the Crown, consistent with a tattoo on the same part of the accused's body.
The jury in this matter has been attentive and diligent. From almost the moment they commenced their deliberations, they have asked a series of thoughtful, sensible, and insightful questions. Relevant to this application is a question they asked, which became MFI 6, which I will quote:

"If we can't agree on the purpose for 'break and enter' as larceny, should we acquit? Or should we focus on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sarkis (No 2)

Details

AGLC: R v Sarkis (No 2) [2023] NSWDC 479
Case: [2023] NSWDC 479
Decision Date: 03 November 2023

CaseChat Overview and Summary

In the case of R v Sarkis (No 2), the respondent, Sarkis, faced criminal proceedings in the Supreme Court of New South Wales. The matter involved allegations of serious criminal offences, and Sarkis was on trial before a jury. The issue that arose during the trial was whether the jury could continue to deliberate after it came to light that some members of the jury had inadvertently been exposed to unauthorised material. The respondent applied to discharge the jury on the basis that the potential exposure to unauthorised material might prejudice the fairness of the trial.

The court had to decide whether the trial could continue with the current jury, or whether the jury needed to be discharged and a new jury empanelled. The court considered the principles of fairness and the potential impact of the unauthorised material on the jury's decision-making process. Given that the unauthorised material was not deliberately viewed by the jurors and there was no evidence that it influenced their deliberations, the court found that discharging the jury was not necessary. However, the court determined that the fairness of the trial could not be assured and ordered the jury to be discharged to protect the integrity of the trial process.

The court's decision was influenced by the need to uphold the principles of justice and ensure that the trial was conducted in a fair and impartial manner. The court recognised the potential for prejudice, even if the jurors had not intentionally viewed the material or if there was no evidence of its influence on their deliberations. In light of this, the court ordered the jury to be discharged and for a new jury to be empanelled to ensure the trial's fairness. The court also noted that the discharge of the jury was a significant step and should be done with caution to avoid unnecessary disruption to the trial process.

Orders

Orders of the court

Pursuant to Part 7A of the Jury Act 1977 (NSW), I order that the jury be discharged

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Sarkis (No 2) [2023] NSWDC 479
Hearing dates:	1, 2, 3 November 2023
Decision date:	03 November 2023
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	Pursuant to Part 7A of the Jury Act 1977 (NSW), I order that the jury be discharged
Catchwords:	CRIMINAL PROCEDURE – Trial – Jury – Application to discharge jury - unauthorised material inadvertently before some members of the jury
Legislation Cited:	Jury Act 1977, Pt 7A
Cases Cited:	Ahola (No 6) [2013] NSWSC 703 CroftsvThe Queen (1996) 186 CLR 427 GilbertvThe Queen (2000) CLR 413 HameedvR [2019] NSWCCA 219 Rv Rogerson (No 34) [2016] NSWSC 259
Category:	Procedural rulings
Parties:	Rex (Crown) Anthony Sarkis (Accused
Representation:	Counsel: E Beljic (Crown) T Gabrial (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Norris Somers Maiit Lawyers (Accused)
File Number(s):	2021/90536
Publication restriction:	None