SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Sidaros v The Queen
Citation:
[2020] ACTCA 11
Hearing Date:
4 November 2019
DecisionDate:
4 November 2019
ReasonsDate:
28 February 2020
Before:
Burns, Elkaim and Loukas-Karlsson JJ
Decision:
See [84]
Catchwords:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Application for leave to appeal from interlocutory judgment – whether Court of Appeal is competent to hear appeal on the ruling on the admissibility of evidence – whether principles relating to s 5F of Criminal Appeal Act 1912 (NSW) are applicable
CRIMINAL LAW – EVIDENCE – Admissibility – evidence obtained by undercover police operation – where appellant had declined to participate in a police interview – whether the use of the evidence obtained was at a price which is unacceptable having regard to prevailing community standards
CRIMINAL LAW – EVIDENCE – Admissibility – expert evidence of a firearms and tool mark examiner – opinion given that cartridges were discharged from a weapon located at the residence of the appellant – whether opinion was admissible under s 79 of the Evidence Act 2011 (ACT)
[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.
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Sidaros v The Queen [2020] ACTCA 11
Case
[2020] ACTCA 11
Decision Date
CaseChat Overview and Summary
The Supreme Court of the Australian Capital Territory, constituted by Burns, Elkaim and Loukas-Karlsson JJ, heard an application for leave to appeal from an interlocutory judgment of Mossop J. The applicant, Axel Sidaros, faced charges including attempted murder arising from an incident involving arson and firearms discharge. The primary judge had ruled admissible both evidence obtained through an undercover police operation and the opinion of a firearms and tool mark examiner that cartridges found at the scene were fired from a weapon located at the applicant's residence. The applicant sought to exclude this evidence.
The legal issues before the Court of Appeal concerned the admissibility of the evidence obtained via the undercover operation and the expert opinion. Specifically, the court considered whether the use of evidence obtained after the applicant declined to participate in a police interview was at an unacceptable price according to prevailing community standards. It also examined whether the firearms examiner's opinion, stating the cartridges were discharged from a specific firearm, was admissible under section 79 of the Evidence Act 2011 (ACT), and whether the basis for this opinion was sufficiently established as being derived from specialised knowledge.
The Court of Appeal determined that it was competent to hear the appeal. It reasoned that the evidence obtained from the undercover operation was procured in circumstances that breached the applicant's right to choose whether or not to speak, and that admitting this evidence would be at a price unacceptable by community standards, particularly given the applicant's refusal to be interviewed. Furthermore, the court found that the firearms examiner's opinion lacked the necessary objective criteria to establish it was wholly or substantially based on specialised knowledge, rendering it inadmissible.
Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the primary judge. The court ordered that the evidence obtained from the undercover operations and the opinion of the firearms examiner were not to be admitted at the applicant's trial.