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Sakar v R

Sakar v R

Case [2024] NSWCCA 40 15 March 2024

Appeal

Breach of Trust

Aggravated & Exemplary Damages

Criminal Law

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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

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”.

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 Sakar v R

Details

AGLC: Sakar v R [2024] NSWCCA 40
Case: [2024] NSWCCA 40
Decision Date: 15 March 2024

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