Sidaros v The Queen

Case [2020] ACTCA 11


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)

Legislation Cited:

Court Procedures Act 2004 (ACT) s 76

Crimes Act 1914 (Cth) ss 23A, 23B, 23F
Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) s 103A
Evidence Act 2011 (ACT) ss 79, 90, 138, 139, 192A
Supreme Court Act 1933 (ACT) s 37E

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2010] ACTCA 28; 244 FLR 440

BC v R [2019] NSWCCA 111
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
Em v R [2006] NSWCCA 336
Hart v Federal Commissioner for Taxation (No 2) [2016] FCA 897
Honeysett v The Queen [2014] HCA 29; 253 CLR 122
House v The King (1936) 55 CLR 499
Kadir v The Queen; Grech v The Queen [2020] HCA 1
Lawrance v The Commonwealth [2007] FCA 1524
Lee v The Queen [2014] HCA 20; 253 CLR 455
Miles v The Queen [2013] ACTCA 52
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713
Pavitt v The Queen [2007] NSWCCA 88; 169 A Crim R 452
R v Bauer [2018] HCA 40; 92 ALJR 846
R v Cornell [2015] NSWCCA 258
R v Eastman (No 23) [2017] ACTSC 281
R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90
R v Sidaros [2019] ACTSC 177
R v Suckling [1999] NSWCCA 36
R v Swaffield [1998] HCA 1; 192 CLR 159
The Queen v King [2013] ACTCA 23
Tofilau v The Queen [2007] HCA 39; 231 CLR 396
Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92

Texts Cited:

Andrew Palmer, ‘Applying Swaffield: covertly…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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