Sakar v R

Case [2024] NSWCCA 40


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Sakar v R [2024] NSWCCA 40
Hearing dates: 1 December 2023
Date of orders: 15 March 2024
Decision date: 15 March 2024
Before: Simpson AJA at [1]
Button J at [130]
Weinstein J at [131]
Decision:

(1)   Leave granted to appeal.

(2)   Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against conviction –

Where applicant found guilty by jury of common assault and one count of sexual intercourse without consent – Where applicant not found guilty of related offences – Whether guilty verdicts unreasonable with regard to available evidence and related not guilty verdicts – Guilty verdicts reasonable – Leave granted, but appeal dismissed

CRIME – Appeals – Appeal against direction given to jury by trial judge - Whether trial judge misdirected jury – Where no objection made to direction during trial – Where appeal against direction is strictly protective where identical argument rejected in

earlier decision of this Court

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)

Cases Cited:

Cullen v R [2022] NSWCCA 63

Fleming v The Queen (1998) 197 CLR 250; [1998]

HCA 68

Gipp v The Queen (1998) 194 CLR 106; [1998] HCA

21

Lee v R [2023] NSWCA 203

Longman v The Queen (1989) 168 CLR 79; [1989]

HCA 60

M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA

53

Pell v The Queen (2020) 268 CLR 123; [2020] HCA

12

R v Knight (1988) 35 A Crim R 314

R v Markuleski (2001) 52 NSWLR 82; [2001]

NSWCCA 290

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151

SKA v The Queen (2011) 243 CLR 400; [2011] HCA

13

The Queen v Baden-Clay (2016) 258 CLR 308;

[2016] HCA 35

Category:Principal judgment
Parties: Simon Sadi Sakar (Applicant)
The Crown
Representation:

Counsel:
T Game SC/D Barrow (Applicant) G Newton SC (Crown)

Solicitors:
CFS Legal (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2021/176642
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
10 March 2023
Before:
Townsden DCJ
File Number(s):
2021/176642

JUDGMENT

  1. SIMPSON AJA: On 9 November 2022 the applicant was arraigned in the District Court on an indictment that contained four counts of offences against provisions of the Crimes Act 1900 (NSW). Count 1 was of an offence against s 61, common assault; counts 3 and 4 were of offences against s 61I, of sexual intercourse without consent. Count 2 was of an offence against s 37(1) which relevantly provides:

“A person is guilty of an offence if the person

(a)   intentionally chokes … another person so as to render the other person … incapable of resistance and

(b)   is reckless as to rendering the other person… incapable of resistance.”

This count has been referred to as “the choking charge”.

Continue reading Sakar v R

Sign in free to access the full text

Details
AGLC
Sakar v R [2024] NSWCCA 40
Case
[2024] NSWCCA 40
Decision Date

CaseChat Overview and Summary

In the case of Sakar v R, the applicant appealed against his conviction and sentence for common assault and one count of sexual intercourse without consent. The applicant was acquitted of other related charges. The appeal primarily focused on the jury's verdicts, questioning whether they were unreasonable in light of the available evidence and the acquittal on related charges. Additionally, the applicant challenged a direction given to the jury by the trial judge, arguing that it misdirected them, although no objection was made during the trial.

The court examined whether the guilty verdicts were unreasonable, considering the evidence presented and the acquittal on related charges. The court concluded that the jury's verdicts were reasonable and based on the evidence. Regarding the direction to the jury, the court held that the appeal against the direction was strictly protective, given that an identical argument was rejected in an earlier decision of the court.

The appeal was allowed in the sense that leave was granted, but the appeal was ultimately dismissed. The court found that the trial judge's direction to the jury did not misdirect them, and the verdicts were supported by the evidence. Consequently, the conviction and sentence of the applicant stood affirmed.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.