Sidaros v The Queen (No 3)
[2021] ACTCA 31
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Sidaros v The Queen (No 3) |
Citation: | [2021] ACTCA 31 |
Hearing Dates: | 20 August 2021 |
DecisionDate: | 25 October 2021 |
Before: | Burns, Elkaim JJ and McWilliam AJ |
Decision: | See [185] |
Catchwords: | CRIMINAL LAW – APPEAL – Judge Alone Trial – offences by joint commission – dispute on use of expert evidence – interpretation of previous court of appeal decision – whether verdict unreasonable – application of definition of intention – difference of opinion in result – resolved by reference to highest common denominator |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12, 19, 27, 115, 117 Evidence Act 2011 (ACT) ss 79, 135, 192A |
Cases Cited: | Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Davie v Magistrates of Edinburgh [1953] SC 34 |
Parties: | Axel Sidaros (Appellant) The Queen (Respondent) |
Representation: | Counsel S Odgers SC, M Thangaraj SC and S Pararajasingham (Appellant) A Williamson (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT DPP (Respondent) | |
File Number: | AC 5 of 2021 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Mossop J Date of Decision: 23 December 2020 Case Title: R v Sidaros (No 5) Citation: [2020] ACTSC 354 |
BURNS J:
The appellant elected to be tried by a judge sitting without a jury on an indictment dated 7 August 2020, containing the following charges:
(a)Count 1: that on 28 June 2018 the appellant and unknown persons attempted to murder Peter Zdravkovic.
(b)Count 2: that on 28 June 2018 the appellant and unknown persons intentionally inflicted grievous bodily harm on Peter Zdravkovic.
(c)Count 3: that on 28 June 2018 the appellant and unknown persons attempted to destroy or damage by means of fire or explosive a property in Calwell in the ACT with intent to endanger the life of another person by that destruction or damage.
(d)Count 4: that on 28 June 2018 the appellant entered or remained in a building, namely the property in Calwell in the ACT, as a trespasser with intent to commit an offence in the building that involved causing harm or causing damage to property, and that was punishable by imprisonment for 5 years or longer, namely arson, and was in company of unknown persons and at the time had an offensive weapon with him.
(e)Count 5: that on 28 June 2018 the appellant and unknown persons caused damage by fire to three vehicles and intended to cause, or were reckless about causing, damage to those vehicles.
(f)Count 6: that on 28 June 2018 the appellant and unknown persons intentionally and unlawfully discharged loaded firearms so as to cause another person reasonable apprehension for their safety.
(g)Count 7: that on 28 June 2018 the appellant dishonestly rode in a motor vehicle belonging to someone else, namely LL, and the vehicle was dishonestly taken by someone without the consent of LL.
Each of the counts, except for Count 7, was pleaded as having been committed by virtue of s 45A of the Criminal Code 2002 (ACT) (Criminal Code). In other words, the Crown alleged that the appellant and at least one other person had entered into an agreement to commit an offence and either an offence was committed in accordance with the agreement or an offence was committed in carrying out the agreement: s 45A Criminal Code. After a trial occupying 9 days, the primary judge found the appellant not guilty of Count 1 and guilty of the remaining six counts. His Honour published comprehensive reasons for his Honour’s verdicts: R v Sidaros (No 5) [2020] ACTSC 354 (R v Sidaros (No 5)).
The appellant has appealed from the findings of guilty made by the primary judge. The grounds of appeal, as ultimately pleaded by the appellant are:
(a)the primary judge erred in finding that the evidence of Clive Roberts permitted a conclusion that the exhibit fired cartridge were fired by the appellant’s firearm;
(b)the verdicts in respect of Counts 2, 3, and 6 are unreasonable.
The facts
The facts of what occurred on 28 June 2018 were never in dispute. Those facts were summarised by the primary judge as follows:
4. On 28 June 2018 four people were captured on CCTV entering the residential property of Peter Zdravkovic. Three came in from the rear of the property. In accordance with the order in which they appeared they were identified as offender 1, offender 2, and offender 3. They came to the rear of the house. The carport of the house was opened and another offender driving a vehicle (offender 4) arrived with containers full of petrol. There was an exchange of fire at the rear of the house during which shots were fired by two of the intruders (offender 1 and offender 2) at Mr Zdravkovic, and Mr Zdravkovic fired at least two shots at the intruders. As a result of the shots fired by the intruders Mr Zdravkovic lost a finger. Having doused three cars on the property with petrol, the intruders set fire to them before escaping in the vehicle. Mr Zdravkovic fired shots at them from the front of his house as they escaped. The Crown case is that the accused was offender 2.
This incident followed an earlier incident on 17 March 2018 when intruders entered Mr Zdravkovic’s residence and a gun was fired in a way that led to a bullet grazing Mr Zdravkovic’s head.
History of the proceeding
After the appellant was committed to the Supreme Court for trial, he lodged an application under s 192A of the Evidence Act 2011 (ACT) (Evidence Act) seeking a pre-trial ruling that evidence which the Crown proposed leading at his trial was inadmissible. Of present relevance was an order sought by the appellant that “evidence of opinion expressed by Clive Roberts should be excluded”. Mr Roberts is a forensic firearms and tool mark examiner with the Australian Federal Police. The offender designated “offender 2”, alleged by the Crown to be the appellant, is seen in the CCTV footage of the offence carrying and discharging a shotgun. Police located four discharged shotgun shells at the scene of the offences. These were referred to as the “exhibit fired shotgun cartridge cases”. I will refer to these as the exhibit cartridge cases. After the offences, police located a shotgun at the appellant’s residence on 26 July 2018. It was not in dispute that the shotgun belonged to the appellant. Mr Roberts examined the exhibit cartridge cases, the appellant’s shotgun and some cartridge cases which had been test fired from the shotgun (the test fired cartridges). He observed tool markings left on the test fired cartridges that were made by the firing process, and similar tool markings on the exhibit cartridge cases. After comparing these tool markings Mr Roberts expressed the opinion in a report that “both the exhibit and test fired cartridge cases were fired in the same firearm”.
The process adopted by Mr Roberts was to test fire the shotgun and compare features of two cartridges from the test firing. This allowed him to identify tool marks left by the firing process that were repeated from one test to another and those left by the firing process that were not repeated. He was able to identify an impression caused by the edge of the ejector cut out on the face of the breach bolt of the exhibit shotgun. Mr Roberts then compared the same area on one of the exhibit cartridge cases and found a similar marking on that cartridge case. After making a careful comparison between the tool markings on the exhibit cartridge cases and the test fired cartridges, Mr Roberts expressed the opinion that:
The agreement observed in the toolmarks on the exhibit and test fired cartridge cases was significant and was consistent with the agreement observed by the author in the marks left between the test fired cartridge cases fired by the same one firearm being the exhibit shotgun.
Mr Roberts undertook the same exercise with each of the exhibit cartridge cases and concluded that all displayed significant and sufficient agreement to identify the shotgun (found at the appellant’s home) as being the firearm that fired them. The evidence that the Crown proposed leading at the appellant’s trial, therefore, was an opinion by Mr Roberts that the exhibit cartridge cases found at the scene of the offences had been fired from the appellant’s shotgun.
On 7 August 2019 the primary judge made an order permitting the Crown to lead in evidence at the appellant’s trial the opinion of Mr Roberts that the exhibit cartridge cases and the test fired cartridges were fired in the same gun: R v Sidaros [2019] ACTSC 177.
The appellant sought and was granted leave to appeal from the orders made by the primary judge. On 4 November 2019 the Court of Appeal in Sidaros v The Queen [2020] ACTCA 11 (the earlier decision), set aside the primary judge’s order and substituted the following order:
The opinion of Mr Clive Roberts that “both the exhibit and test fired cartridge cases were fired in the same firearm” is not to be admitted into evidence at the [appellant’s] trial.
The appellant was then tried before a jury. Before the trial commenced, the appellant made an application to the trial judge that certain statements said to have been made by the appellant to police and which the Crown relied upon as a lie evidencing a consciousness of guilty on the part of the appellant not be admitted into evidence at his trial. The trial judge refused the application: R v Sidaros (No 2) [2019] ACTSC 348. At that time the appellant was charged with eight offences, and the jury convicted him of seven and acquitted him of the remaining charge.
On appeal, the convictions were set aside and a new trial was ordered: Sidaros v The Queen (No 2) [2020] ACTCA 39. The appellant subsequently elected for trial by judge alone, and his trial on the remaining seven charges proceeded before the primary judge.
The primary judge’s decisions
In both its opening and closing addresses, the Crown stated that it relied on the evidence of Mr Roberts as establishing that the tool marks found on the exhibit cartridges and the test fired cartridges were similar. The Crown, consistent with the earlier ruling of the Court of Appeal in the earlier decision referred to at [10] above, did not lead the evidence of Mr Roberts’ opinion that the exhibit cartridges and the test fired cartridges were fired from the appellant’s shotgun. The Crown did, however, lead evidence from Mr Roberts about the manufacturing process of the bolt of the appellant’s shotgun which was relevant to the tribunal of fact assessing the significance of the similarity between the tool marks. Mr Roberts gave the following evidence:
[W]hen I examined the bolt face, your Honour, the face of the bolt in particular, I was able to identify what part of that bolt face was responsible for creating the marks in that location and that crescent shape mark on the cartridge case. The face of the bolt was finished with abrasive machining, so whether it be sandblasting or bead blasting or something similar. The whole process of finishing a metal surface by that abrasive machining is essentially a randomised way. It is blasting out millions of sand grains per second against a metal surface and there is no order to in which way they’re expelled out of a nozzle, they just get blasted onto it. So to be able to – even going down to the microscopic level on a piece of metal, to be able to get a sandblasting machine and remove metal to create that texture and then go to another surface and do it and have exactly the same pitch and the same orientation and the same depth of the metal occurring between sandblastings is, in my opinion, almost impossible.
The appellant objected to Mr Roberts giving the above evidence, but not on the basis that Mr Roberts lacked the expertise to give the evidence or that it was not a matter upon which an expert opinion was admissible. The appellant’s objection, which was disallowed by the primary judge, was based on s 135 of the Evidence Act and the proposition that the evidence was apt to mislead “because the effect of leading all that evidence is to potentially elevate the consistency opinion” to an opinion that the exhibit cartridges and the test fired cartridges were fired from the appellant’s shotgun. It is implicit in the terms of that objection that the appellant accepted that the proposed evidence of Mr Roberts did not contravene the Court of Appeal ruling in the earlier decision. The objection was based upon the proposition that the evidence may be misleading or confusing, or cause or result in undue waste of time: s 135 Evidence Act.
In his Honour’s written judgment, R v Sidaros (No 5), the primary judge said of the evidence of Mr Roberts, after referring to the evidence of that witness regarding the tool marks to which I have referred:
231.His ultimate conclusion was that the tool marks found on the test cartridge cases fired from the 12-guage shotgun found at the accused’s house and the exhibit cartridge cases from the crime scene were such that they were consistent with the cartridges being fired by the same weapon.
Later, his Honour said:
233.There was no challenge to [Mr Roberts’] evidence about the existence of corresponding marks as between the exhibits and test fired cartridges. There was no challenge to his evidence that those marks were not subclass characteristics. In other words, the types of marks involved were not marks that might have been separately generated on different weapons as a result of some aspect of their manufacturing process. There was no alternative hypothesis elicited from him that might explain how such corresponding tool marks might exist in both the exhibit and the test fired cartridges.
Still later, the primary judge said:
579.The approach of the [appellant] to [the evidence of Mr Roberts] was to accept that Mr Roberts had established that “the tool markings on the exhibit fired cartridge cases from the crime scene were consistent with coming from the firearm… that [he] tested”. Stripped of all of its foundation and context, that would not be a particularly strong piece of evidence in support of the Crown case because it does not rule out consistency with any other firearm. It would simply establish a lack of inconsistency and hence negate a matter which would be fatal to the Crown case that the [appellant’s] firearm was used in the incident. However, it is not appropriate to strip the opinion of its foundations and context and thereby ignore all of the other evidence given by the witness and focus only on his ultimate conclusion. The evidence included a number of findings and intermediate conclusions which are of significance and may be relied upon by a finder of fact. When regard is had to the details of the evidence, it provides a solid foundation for a conclusion that the exhibit cartridges were fired by the [appellant’s] firearm.
580. So far as the crescent shaped area was concerned, having regard to:
(a)the repetition of microscopic features within the crescent shaped area;
(b)the explanation of the manner in which that crescent shaped area was created as a result of the plastic deformation of a part of the bolt face adjacent to the ejector cut‑out; and
(c)the evidence that the crescent shaped area did not arise from subclass characteristics ([227] above),
its existence and features are strong evidence that the accused’s weapon fired the exhibit cartridge.
581. So far as the impressions on the primer area of the cartridge were concerned:
(a)the multiple microscopic impressions on the primer which were repeated between test and exhibit cartridges;
(b)the fact that these arose as a result of the firing process; and
(c)were not the result of subclass characteristics ([230Error! Reference source not found.] above),
is also strong evidence that the accused’s weapon fired the exhibit cartridge.
582.Because of the forensic approach taken by counsel for the accused to this evidence, no challenge was made to the conclusions referred to above, no submission was made in relation to the detail of it and no alternative hypothesis was explored in evidence or put forward in submissions that could explain the features identified and explained by Mr Roberts. Considering the evidence independently of any submission made on behalf of the accused, it is difficult to conceive of any alternative hypothesis that could result in the degree of similarity between the exhibit and test fired cartridges. The evidence provides very strong support for the Crown contention that the weapon fired during the incident on 28 June 2018 was the weapon which belonged to the accused.
The significant issue which the primary judge had to decide, and to which the evidence of Mr Roberts was most relevant, was whether the Crown could prove that the appellant was the person described as “offender 2” and depicted carrying a shotgun in the CCTV footage of the offences. The primary judge correctly described the Crown’s identification case as circumstantial. In considering that case, the primary judge said that “the evidence that the weapon used in the incident was the weapon owned by [the appellant] was very strong”. Based upon that proposition, and by reference to the other circumstances proven by the evidence, the primary judge was satisfied beyond reasonable doubt that the appellant was offender 2.
Having achieved satisfaction that the appellant was offender 2, the primary judge then considered each of the seven counts separately. His Honour was not satisfied beyond reasonable doubt that there had been any agreement to murder Mr Zdravkovic and entered a verdict of not guilty on Count 1.
With regard to Count 2, the charge of intentionally inflicting grievous bodily harm, the primary judge was satisfied that an agreement existed between the appellant and the other three intruders that they would inflict really serious injury on Mr Zdravkovic. In reaching that conclusion, the primary judge relied upon the actions of the appellant (offender 2) and another person (offender 1) as depicted in the CCTV footage and on the history of conflict between the Comancheros Outlaw Motorcycle Gang (the Comancheros) and Mr Zdravkovic. This latter circumstance requires some explanation.
The Crown case was that these offences occurred as part of internal conflict within the Comancheros connected with the opening of a new chapter of that Outlaw Motor Cycle Gang (OMCG) in Sydney in 2017. There was evidence that Mr Zdravkovic was the commander of the Canberra chapter of the Comancheros and that he sided with the new Sydney chapter while the national hierarchy of the Comancheros supported the old chapter. Mr Zdravkovic was effectively kicked out of the Comancheros because of this conflict.
Mr Zdravkovic subsequently engaged in provocative conduct towards the Comancheros including posting images of himself burning club clothing with provocative captions. Evidence before the primary judge established that conduct of this nature would be a matter for violent retaliation if engaged in by a rival OMCG. There was evidence that there would be an expectation within the Comancheros that conduct of the type Mr Zdravkovic engaged in would be dealt with internally by the relevant chapter. If the chapter failed to deal with it then other members of the Comancheros may step in. There was evidence that Mr Zdravkovic had been the subject of threats by members of the Comancheros, and that he had refused a demand made by that group that he return his Comanchero regalia and forfeit his motorcycle.
There was also evidence that the appellant was a person associated with the Canberra chapter of the Comancheros. There was evidence that the appellant had been a lower level associate of the Comancheros (a nominee) but had been keen to achieve full membership. There was also evidence that the appellant had advanced to full membership with unusual rapidity in the period after the offences occurred. Membership of the Comancheros had to be “earned through acts or behaviours”.
The history of antipathy between the Comancheros and Mr Zdravkovic, and the appellant’s association with the OMCG and his desire to achieve full membership were all relevant as providing a motive for the appellant to have been involved in the present offences. They were pieces of circumstantial evidence capable of supporting an inference when taken together with other evidence that the appellant was one of the offenders.
The primary judge was satisfied that the actions of offender 1 and offender 2 (the appellant) as depicted in the CCTV footage were inconsistent with them being at the residence of Mr Zdravkovic “in a defensive role” or simply as part of an agreement to commit arson. His Honour also reasoned that the actions of offenders 1 and 2 in “enthusiastically and aggressively continuing to shoot into the premises when the opportunity to hit Mr Zdravkovic arose” supported the inference that an agreement existed between the offenders to inflict really serious injury on Mr Zdravkovic if the opportunity to do so presented itself.
Turning to Count 3, the primary judge was satisfied beyond reasonable doubt that the offenders were party to an agreement which went beyond burning the vehicles at Mr Zdravkovic’s residence. The primary judge was satisfied that offender 4 poured petrol into the premises through a broken sliding door and threw the fuel container into the premises. Offender 3 “acted consistently” with a plan to “link” the vehicle fire to a fire in the house by pouring a trail of petrol to the sliding door before he was interrupted by the outbreak of shooting. The primary judge said:
628.I do not accept the submission that if there was a plan to use arson to endanger life then petrol would have been poured at the front door of the premises. Having regard to the fact that there was undoubtedly a plan to burn vehicles which required access to the rear of the premises and a plan, if it was possible, to shoot Mr Zdravkovic, it would have been inefficient and risky to attempt also to burn the front of the house which was secured within a courtyard and by other measures.
629.I am satisfied beyond reasonable doubt that the agreement extended beyond burning the vehicles and extended to setting fire to the house with the intention to harm the lives of the occupants.
Count 6 was a charge of intentionally and unlawfully discharging a firearm so as to cause another person reasonable apprehension for their safety. The primary judge was satisfied that there was an agreement that one or more of offenders 1 and 2, who were both carrying firearms, would discharge their firearms into Mr Zdravkovic’s house in a manner that would cause persons to reasonably apprehend for their safety. The primary judge accepted that the offenders could not have been certain that the house would be occupied, but his Honour was satisfied that there was an agreement that firearms would be discharged and if persons were in the house the discharge would be done in a manner that caused them to fear for their safety.
His Honour rejected the possibilities that there was no agreement to discharge the weapons at the premises or that the firearms had only been taken to the premises by the offender for defensive purposes. The primary judge considered those possibilities to be inconsistent with the contents of the CCTV footage, particularly the offenders “hovering” at the back door waiting for the driver (offender 4) to arrive and “the enthusiastic and aggressive discharge of multiple shots” by offenders 1 and 2 into the residence when Mr Zdravkovic appeared.
I need not consider the primary judge’s approach to Counts 4, 5 and 7 because the appellant did not allege that the verdicts with regard to those counts were unreasonable. The verdicts on those counts depend upon the outcome of ground of appeal (a), which alleges the primary judge fell into error in identifying the appellant’s shotgun as having discharged the exhibit cartridges, and by doing so fell into error in identifying the appellant as offender 2.
Ground of appeal (a): error in finding that the evidence of Mr Roberts permitted a conclusion that the exhibit fired cartridges were fired by the appellant’s firearm
The simple answer to this ground of appeal is that the primary judge never made a finding based on the evidence of Mr Roberts that the exhibit cartridge cases were fired from the appellant’s firearm. The primary judge was careful to restrict his findings to a finding of similarity between the markings on the exhibit cartridge cases and those on the test fired cartridges and the bolt face on the appellant’s firearm. His Honour referred to the significance of the evidence of Mr Roberts in drawing an inference from all of the evidence that the appellant was the person described as offender 2. In deference to the submissions of the appellant I will say a little more about the evidence of Mr Roberts and how it was used by the primary judge.
The earlier decision of this Court was based upon the requirements of the law surrounding the reception of expert opinions. The decision did not preclude the tribunal of fact from drawing inferences from the evidence of Mr Roberts. The earlier decision of this Court was confined to a ruling that Mr Roberts could not give evidence of an opinion that both the exhibit cartridges and the test fired cartridges were fired by the same firearm, but this did not preclude the tribunal of fact drawing inferences in the ordinary way from his evidence. Nor did the prior decision of this Court preclude the Crown adducing evidence of the process by which the appellant’s firearm’s bolt was manufactured and the consequent unlikelihood of that manufacturing process leaving tool marks on another firearm capable of leaving tool marks on discharged cartridges exhibiting the level of similarity demonstrated between the exhibit cartridge cases and the test fired cartridge cases.
Those parts of his Honour’s judgment quoted above address the degree of similarity between the tool marks on the exhibit cartridge cases and the test fired cartridge cases and the likelihood, based on the evidence of Mr Roberts, that the observed similarity was a coincidence. They do not constitute a positive finding by the primary judge that the exhibit cartridges were fired by the same gun as the test fired cartridges, and that the gun was the appellant’s.
An (imperfect) analogy may well be drawn with DNA evidence. An appropriately qualified expert may compare DNA taken from an accused person with that found at a crime scene to identify similarities in the DNA samples and to assess the extent of those similarities. The expert cannot say that the DNA found at the crime scene is that of the accused; all the expert can do is to give a figure for the probability that the crime scene DNA came from the accused as opposed to some other person chosen at random from an identified population base. The evidence of the probability ratio is relevant to a determination by the tribunal of fact of the likelihood that the crime scene DNA belonged to someone other than the accused. This helps to inform the tribunal of fact as to the potential weight that they may give to the presence of the crime scene DNA.
In the present case, the evidence of Mr Roberts was particularly important evidence for the Crown. Without it, it is unlikely that the primary judge could have concluded to the standard of beyond reasonable doubt that the appellant was offender 2. However, the evidence of Mr Roberts was not the only evidence that the primary judge took into account in reaching that conclusion. The primary judge also took into account the following:
(a)Evidence of the internal conflict within the Comancheros and the hostility between the Canberra chapter of that gang and Peter Zdravkovic;
(b)Evidence of the appellant’s enthusiasm to be a member of the Comancheros;
(c)Physical similarities between the appellant and offender 2 as depicted in the CCTV footage;
(d)Similarities between the appearance of the shotgun used by offender 2 and that owned by the appellant;
(e)Similarities between the clothing worn by offender 2 and that worn by the appellant the day before the offences when shooting at a rifle range; and
(f)Conduct which the appellant engaged in after the offences had been committed.
Having considered all of the circumstantial evidence, and noting the particular strength of the evidence of Mr Roberts, the primary judge was satisfied beyond reasonable doubt that it was the appellant who was offender 2. The primary judge had earlier given himself directions regarding the proper approach to be taken to determining whether the appellant was offender 2 based on circumstantial evidence, and in the present appeal, the appellant makes no complaint regarding that direction. The primary judge’s conclusion that the appellant was offender 2 was a straightforward exercise in determining the relevant circumstances and assessing those circumstances as a whole.
The appellant has failed to establish that the primary judge fell into error in assessing the evidence of Mr Roberts. This ground of appeal fails.
Ground of appeal (b): the verdicts in respect of Counts 2, 3, and 6 are unreasonable
It was an element of the offence pleaded in Count 2 that there was an agreement between the intruders that really serious harm would be inflicted on Mr Zdravkovic. The appellant submitted that the primary judge erred in being satisfied beyond reasonable doubt that there was such an agreement. The appellant accepted that while the evidence established an agreement to commit arson, there was a reasonable possibility that the agreement did not extend to the infliction of grievous bodily harm on Mr Zdravkovic. In support of that proposition the appellant observed that the primary judge had accepted that there was a reasonable doubt as to the existence of an agreement to kill Mr Zdravkovic, that when they entered the premises the intruders did not know whether they were occupied, that there was a reasonable possibility that Mr Zdravkovic had fired first and that Mr Zdravkovic “was of a state of mind that he would shoot to kill intruders”.
The primary judge was satisfied that there was an agreement to inflict grievous bodily harm on Mr Zdravkovic based on the following:
(a)The background of conflict between the Comancheros and Mr Zdravkovic and the escalation of that conflict following the 17 March 2018 incident; and
(b)The actions of offender 1 and offender 2 as shown in the CCTV footage in “enthusiastically and aggressively continuing to shoot into the premises when the opportunity to hit Mr Zdravkovic arose”.
The agreement found by the primary judge was an agreement to inflict grievous bodily harm on Mr Zdravkovic if the opportunity arose during the intrusion onto his premises. The appellant submitted that “a more plausible hypothesis was that there was an agreement to commit arson and that loaded weapons were taken with the intention that they might be used in self-defence if the intruders came under attack from Mr Zdravkovic” (the alternative hypothesis). The appellant submitted:
(a)That the background of conflict between the Comancheros and Mr Zdravkovic was consistent with an agreement to inflict really serious injury on Mr Zdravkovic if the opportunity arose but it was also consistent with the alternative hypothesis;
(b)The conduct of offender 1 and offender 2 as seen on the CCTV footage is consistent with the agreement as found by the primary judge but it is also consistent with the alternative hypothesis; and
(c)The conduct of the intruders as shown on the CCTV footage is more consistent with the alternative hypothesis than with an agreement as found by the primary judge. The appellant submitted that if there had been an intention to cause really serious injury to Mr Zdravkovic it might be expected that any approach to him would have been made surreptitiously. What occurred, however, is that a glass door was broken to allow petrol to be poured into the residence. The act of breaking the glass would have been likely to draw the attention of Mr Zdravkovic with the accompanying risk that he would respond with lethal violence.
The appellant submitted that it followed from the above that the verdict on Count 2 was unreasonable because there was available a reasonable hypothesis consistent with the appellant’s innocence on that charge.
In addressing this submission, it should be remembered that the intruders may have gone to the residence of Mr Zdravkovic with more than one intention. It is undoubted that they went there to commit arson. The appellant’s alternative hypothesis accepts that the intruders went to the residence with loaded firearms because they anticipated the possibility that Mr Zdravkovic may respond to their presence and activities with lethal violence. It may be accepted that the intruders did not attempt to enter the residence surreptitiously to inflict injuries on Mr Zdravkovic, but this is not inconsistent with the agreement found by the primary judge. It may well be that the intruders took loaded firearms with them because they anticipated the possibility of lethal violence by Mr Zdravkovic, but this state of mind is also not inconsistent with the agreement found by the primary judge. The hypothesis raised by the appellant is not inconsistent with an agreement as found by the primary judge.
As is often the case, the Crown could not adduce evidence of admissions by the appellant as to the formation of any agreement with his co-offenders to inflict grievous bodily harm on Mr Zdravkovic. The Crown case was that this agreement could be inferred from the conduct of the intruders, especially offender 1 and offender 2. The best evidence available on this issue is the CCTV footage. That footage amply supports the description by the primary judge of offender 1 and offender 2 “enthusiastically and aggressively continuing to shoot into the premises when the opportunity to hit Mr Zdravkovic arose”. The conspicuous failure of both offender 1 and offender 2 to retreat when the shooting commenced and their actions in remaining at the rear door firing multiple shots at Mr Zdravkovic speaks of an aggressive intention rather than a purely defensive one.
The primary judge was entitled to find as he did and his verdict on Count 2 is not unreasonable. It is a finding with which I fully concur.
With regard to Count 3, the primary judge found that “there was a plan to use arson to endanger life”. Later in his judgment, the primary judge went on to say that he was satisfied beyond reasonable doubt that the intruders’ agreement “extended to setting fire to the house with the intention to harm the lives of the occupants”. This second finding by his Honour is not in accordance with the terms of s 117(1) of the Crimes Act 1900 (ACT) (Crimes Act) which creates the offence, but it is clear from consideration of the judgment as a whole that his Honour was aware of and applied the correct elements of the offence.
Section 115(6) of the Crimes Act provides that for the purposes of s 117 a person shall be taken to have intended to endanger the life of another person if they acted with intent to endanger the life of another person or if they acted in the knowledge or belief that their actions were likely to endanger the life of another person. Somewhat surprisingly, the latter part of this formulation does not appear to have been relied upon by the Crown at the appellant’s trial. The Crown made no reference to s 115(6) in its opening or closing addresses and the primary judge makes no reference to it in his reasons. The Crown also made no reference to that provision in its written submissions to this Court. The appellant’s trial was conducted on the basis that the Crown needed to prove an actual intent to endanger life and not based on the extended definition in s 115(6). As no argument was directed either before the primary judge or in this Court to the question of the appellant’s guilt on Count 3 based on the extended definition and no reasons were directed to this issue by the primary judge it is inappropriate to now consider the appellant’s guilt based on the extended definition found in s 115(6).
It is therefore an element of the offence as prosecuted by the Crown that the intruders attempted to destroy or damage the property of Mr Zdravkovic with the specific intention by so doing of endangering the life of another person. Recklessness of the possibility that the life of another person may be endangered is not sufficient; the Crown must prove that the intruders had the specific intention required by the provision creating the offence.
The reasons given by the primary judge for finding this offence proved are that he was satisfied that offender 4 proceeded to the backdoor with a petrol container and offender 3 acted consistently with a plan to link the vehicle fire with a fire in the house. This, of course, only establishes an intention to damage or destroy the residence by fire. The primary judge rejected the proposition that if an intention to endanger human life had been present an attempt would have been made to block any exit by the occupants via the front door: see [26] above.
The respondent submitted that the following circumstances are relevant to determining that the intruders had the intention required for the offence:
(a)The intruders deliberately set fire to each of the vehicles at the residence and attempted to create a fire trail from the vehicles to the rear sliding door. This fire trail, if ignited, would have increased the “danger of harm” to the occupants of the house;
(b)The intruders deliberately poured petrol into the house before attempting to ignite the fire;
(c)The intruders attempted to ignite the fire at an entry/exit point to the house; and
(d)The incident occurred late at night, a time when occupants are likely to be slower to respond to the emerging danger.
In addition, the respondent submitted that an intent to endanger life can be inferred from the conduct of the intruders in firing eight shots in the direction of Mr Zdravkovic during this incident.
The submissions made by the respondent have weight, but I am ultimately unpersuaded that the evidence was capable of satisfying the requirement that the attempt by the intruders to damage the house was made with the specific intent of endangering human life. The primary judge was not satisfied that there was an agreement to murder Mr Zdravkovic, and his Honour was also not satisfied that either shooter (offender 1 and offender 2) had an intention to shoot to kill. It is a reasonable hypothesis available on the evidence that the intention of the intruders was to damage or destroy the property by fire and in doing so were reckless as to the possibility of any fire endangering the lives of any occupants of the house. In this context, recklessness would include an attitude of simply not caring whether the lives of any occupants were endangered.
There is no statutory alternative charge under s 117 of the Crimes Act. The Crown could have included on the indictment an alternative charge of attempted arson contrary to s 404 by virtue of s 44 and 45A of the Criminal Code but it did not do so.
The appeal should be upheld with regard to Count 3, the conviction and sentence imposed by the primary judge should be set aside, and a verdict of not guilty should be entered.
The final count subject to challenge is Count 6, a charge of intentionally and unlawfully discharging loaded firearms so as to cause another person reasonable apprehension for their safety. The submissions made by the appellant regarding this count is that it was not possible to reject beyond reasonable doubt the possibility that there was no agreement to discharge at the house the weapons brought to the scene by the intruders, or the possibility that the weapons were only brought to the scene for defensive purposes. These submissions mirror those advanced by the appellant regarding Count 2, and should be rejected for the same reasons. The actions of offender 1 and offender 2 as depicted in the CCTV footage are inconsistent with the alternative hypotheses advanced by the appellant.
Conclusion
The appeal should be allowed in respect of Count 3 but should otherwise be dismissed. It will be necessary to restructure the sentences imposed by the primary judge in the light of the appellant’s success on Count 3.
The primary judge imposed the following sentences, including a sentence for a charge of failing to properly store ammunition transferred from the Magistrates Court, see R v Sidaros (No 6) [2021] ACTSC 24:
Count 3:imprisonment for six years commencing 30 August 2018 and expiring 29 August 2024;
Count 4:imprisonment for three years commencing 30 August 2018 and expiring 29 August 2021;
Count 2:imprisonment for four years commencing 1 March 2022 and ending on 28 February 2026;
Count 5:imprisonment for four years commencing 1 March 2023 and expiring 28 February 2027. In addition, a reparation order was made in favour of Mr Zdravkovic;
Count 6:imprisonment for four years commencing 1 March 2024 and expiring 29 February 2028;
Count 7:imprisonment for 18 months commencing 30 November 2026 and expiring 29 May 2028.
Transfer charge: imprisonment for 21 days commencing 9 May 2028 and expiring 29 May 2028.
The aggregate sentence imposed by the primary judge was therefore one of nine years and nine months’ imprisonment commencing 30 August 2018 and expiring on 29 May 2028. His Honour set a non-parole period of five years and six months which is approximately 59 per cent of the head sentence.
Just as it would be inappropriate to arrive at a head sentence when sentencing for multiple offences to simply aggregate the sentence imposed for each separate offence, it is inappropriate to restructure the sentences imposed by the primary judge by simply deducting the sentence imposed for Count 3, being six years imprisonment. This would leave a sentence of three years nine months’ imprisonment which would be inadequate to reflect the appellant’s overall criminality.
The sentences imposed by the primary judge should be restructured as follows:
Count 2:4 years imprisonment commencing 30 August 2018 and expiring 29 August 2022;
Count 5:4 years imprisonment commencing 30 August 2019 and expiring 29 August 2023;
Count 6:4 years imprisonment commencing 30 August 2020 and expiring 29 August 2024;
Count 4:3 years imprisonment commencing 1 March 2022 and expiring 28 February 2025;
Count 7:18 months imprisonment commencing 28 February 2024 and expiring 27 August 2025;
Transfer charge: 21 days imprisonment commencing 30 August 2018 and expiring 19 September 2018.
This amounts to an aggregate sentence of seven years imprisonment commencing 30 August 2018 and expiring 29 August 2025. Maintaining the parole to non-parole ratio set by the primary judge the non-parole period should be 3 years 11 months commencing 30 August 2018 and expiring 29 July 2022.
Orders
The following orders should be made:
(i)the appeal is upheld to the extent that the conviction and sentence imposed by the primary judge on Count 3 are set aside and a verdict of not guilty is entered;
(ii)the appeal is otherwise dismissed;
(iii)the remaining sentences imposed by the primary judge are to be served as set out in [58] above; and
(iv)the non-parole period is as set out in [59] above.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 25 October 2021 |
ELKAIM J:
The appellant was tried before Mossop J, sitting alone, from 30 November to 10 December 2020. His Honour delivered his decision on 23 December 2020 (R v Sidaros (No 5) [2020] ACTSC 354).
His Honour found the appellant guilty on six of the seven counts in an indictment dated 7 August 2020. The seven counts were:
Count 1: attempted murder of Peter Zdravkovic contrary to s 12 of the Crimes Act 1900 (ACT) and s 44 of the Criminal Code 2002 (ACT);
Count 2: intentionally inflicting grievous bodily harm on Peter Zdravkovic contrary to s 19 of the Crimes Act;
Count 3: attempted arson with intent to endanger life contrary to s 117 of the Crimes Act and s 44 of the Criminal Code;
Count 4: aggravated burglary contrary to s 312 of the Criminal Code;
Count 5: arson contrary to s 404 of the Criminal Code;
Count 6: act endangering life contrary to s 27(3)(d) of the Crimes Act; and
Count 7: dishonestly riding in a motor vehicle without consent contrary to s 318(2) of the Criminal Code.
Count 1 was the only charge which resulted in a finding of ‘not guilty’. The appellant says this result should have been reached in all of the counts.
The first six counts had been charged as offences of joint commission under s 45A of the Criminal Code 2002 (ACT). His Honour also had before him a transfer charge from the Magistrates Court of failing to properly store ammunition contrary to the Firearms Act 1996 (ACT). The appellant pleaded guilty to this offence.
His Honour, at [4], summarised the Crown’s allegations in this way:
4.On 28 June 2018 four people were captured on CCTV entering the residential property of Peter Zdravkovic. Three came in from the rear of the property. In accordance with the order in which they appeared they were identified as offender 1, offender 2, and offender 3. They came to the rear of the house. The carport of the house was opened and another offender driving a vehicle (offender 4) arrived with containers full of petrol. There was an exchange of fire at the rear of the house during which shots were fired by two of the intruders (offender 1 and offender 2) at Mr Zdravkovic, and Mr Zdravkovic fired at least two shots at the intruders. As a result of the shots fired by the intruders Mr Zdravkovic lost a finger. Having doused three cars on the property with petrol, the intruders set fire to them before escaping in the vehicle. Mr Zdravkovic fired shots at them from the front of his house as they escaped. The Crown case is that the accused was offender 2.
The primary case run by the appellant at trial was that the Crown had not proved beyond reasonable doubt that the appellant was “offender 2”.
There were originally eight grounds of appeal but these were refined to two grounds through a Further Amended Notice of Appeal dated 22 July 2021.
The two grounds are:
(a)His Honour erred in finding that the evidence of Clive Roberts permitted a conclusion that the exhibit fired cartridges were fired by the appellant’s firearm.
(b)The verdicts in respect of counts 2, 3 and 6 are unreasonable.
The first ground: the evidence of Clive Roberts
I have had the advantage of reading, in draft, the judgments of Burns J and McWilliam AJ. Their Honours are of the view that this ground should fail. I think it should succeed. There are two fundamental points of difference between our respective opinions which dictate the divergence of the final result. These two differences, in summary form, are as follows:
(a)Burns J and McWilliam AJ are of the opinion that the appellant’s objection to evidence given by Mr Roberts was based on s 135 of the Evidence Act and, therefore and by omission, not an objection based on the earlier Court of Appeal ruling in Sidaros v The Queen [2020] ACTCA 11. Their Honours think that there was an implicit acceptance by the accused that the earlier ruling had not been contravened, but that the objection had, as stated above, its source in s 135. I respectfully disagree. In my view, notwithstanding the invocation of s 135 for the particular objection, the appellant at all times maintained the stance that the evidence of Mr Roberts was limited by the earlier ruling. As will be seen below, this limitation was recognised by the Crown in the running of the case before the primary judge and remained a constant factor throughout the trial.
(b)Burns J and McWilliam AJ are of the view that the evidence of Mr Roberts did not amount to a “positive finding by the primary judge that the exhibit cartridges were fired by the same gun as the test fired cartridges, and that the gun was the appellant’s”. Again, I respectfully disagree with their Honours. I refer to [579] to [582] inclusive of the primary judge’s decision where Mossop J stated in clear terms that Mr Roberts’ findings were, for example, a “solid foundation” or “strong evidence” that it was the appellant’s gun that had been used during the offences.
Mr Roberts is a firearms expert. His expertise was not challenged. He came to the scene of the relevant events in the early hours of the following day and remained there through most of the day. He conducted a search of the premises. He located three different types of ammunition. There were four .45 calibre cartridges located on the rear patio. There were four 12-gauge shot gun cartridges on the same patio. A .270 calibre bullet was found in a neighbour’s property. Another bullet of this description was found near a utility parked in the neighbour’s driveway.
The above ammunition indicated the use of three different types of weapon: a shot gun, a .270 Winchester rifle and a .45 revolver.
The ammunition used by a shot gun is relevant to this ground of appeal. This is because a shot gun was located at the accused’s residence on 26 July 2018 and subjected to forensic examination by Mr Roberts. The Crown case was that the appellant used this gun in the commission of the offences.
The findings made by Mossop J which are said to give rise to this ground of appeal are contained in [579] and [582]:
579.The approach of the accused to this evidence was to accept that Mr Roberts had established that “the tool markings on the exhibit fired cartridge cases from the crime scene were consistent with coming from the firearm… that [he] tested”. It would simply establish a lack of inconsistency and hence negate a matter which would be fatal to the Crown case that the accused’s firearm was used in the incident. However, it is not appropriate to strip the opinion of its foundations and context and thereby ignore all of the other evidence given by the witness and focus only on his ultimate conclusion. The evidence included a number of findings and intermediate conclusions which are of significance and may be relied upon by a finder of fact. When regard is had to the details of the evidence, it provides a solid foundation for a conclusion that the exhibit cartridges were fired by the accused’s firearm.
…
582.Because of the forensic approach taken by counsel for the accused to this evidence, no challenge was made to the conclusions referred to above, no submission was made in relation to the detail of it and no alternative hypothesis was explored in evidence or put forward in submissions that could explain the features identified and explained by Mr Roberts. Considering the evidence independently of any submission made on behalf of the accused, it is difficult to conceive of any alternative hypothesis that could result in the degree of similarity between the exhibit and test fired cartridges. The evidence provides very strong support for the Crown contention that the weapon fired during the incident on 28 June 2018 was the weapon which belonged to the accused.
In short, the conclusion complained of by the appellant is that the shot gun cartridges were fired by the shot gun taken from the home of the accused.
At this stage it is necessary to go back to the earlier decision of this Court in relation to the opinion formed by Mr Roberts as to the likelihood that the shot gun ammunition had been fired by the shot gun taken from the accused’s house (Sidaros v The Queen [2020] ACTCA 11).
This appeal arose from a decision of Mossop J (R v Sidaros [2019] ACTSC 177) concerning the admissibility of an opinion given by Mr Roberts that “cartridges found at the scene of the incident on 28 June 2018 were fired from the weapon seized by the police on 26 July 2018” (at [5] of the appeal decision). Mossop J thought the evidence was admissible. The Court of Appeal disagreed, and stated at [83]:
83.It is not enough to assert that an opinion is based on specialised knowledge. The opinion of “sufficient agreement” is not susceptible to objective measurement in this case. While in Dasreef it was stated that where “a specialist medical practitioner [is] expressing a diagnostic opinion in his or her relevant field of specialisation” satisfying the requirements of s 79 “will require little explicit articulation or amplification”, this evidence is not analogous to such specialist medical evidence. Nor is the judicial notice of fingerprint evidence apposite in this context. The visual comparison by Mr Roberts was subjective in nature and not conducted by reference to accepted objective criteria. Evidence of similarity based on objective criteria is one thing, evidence purporting to establish that it is from the same firearm is quite another. It does not on the facts of this case go above a bare ipse dixit - I say it is: see Dasreef at [93]. There has been a failure to demonstrate that the opinion is based on the witness’ specialised knowledge. In this context assertion cannot constitute expert evidence.
The result was that the Crown was entitled to lead evidence that it was consistent with Dr Roberts’ testing, that the cartridges had been fired by the subject shot gun but not that they had been fired by this weapon. Mossop J observed, within [579]:
… Stripped of all of its foundation and context, that would not be a particularly strong piece of evidence in support of the Crown case because it does not rule out consistency with any other firearm. …
The Crown led the evidence of Mr Roberts, as permitted by the decision of the Court of Appeal. The ground of appeal says that his Honour, having recognised that consistency alone was not of much weight, should not have then built upon this ‘weak’ piece of evidence to find a conclusion that the cartridges were in fact fired by the accused’s shot gun. It is important to note that this ground of appeal is not limited to the s 135 objection taken in the course of the hearing. The ground has a much wider application, namely, as it states, the trial judge erred in reaching “a conclusion that the exhibit fired cartridges were fired by the appellant’s firearm”.
The real issue in the first appeal ground is whether his Honour’s supplementing of Mr Roberts’ opinion was permissible against the background of the earlier decision of the Court of Appeal. As pointed out by the respondent in its written submissions, learned Senior Counsel for the appellant had conceded that a jury was able to reach a conclusion going beyond the view of Mr Roberts. The respondent quoted this exchange from the hearing:
Before his Honour, the appellant argued that Mr Roberts’ opinion in the present matter was directly analogous to that of Professor Henneberg’s in Honeysett, and for the same reason did not meet the requirements of section 79 of the Evidence Act. As part of this argument, the appellant advocated for the precise position it now asserts is erroneous:
MR ODGERS: As to the basis for that, I mean, there’s no evidence that there are specific criteria that one has regard to. It really does seem a matter of, look at this photo, look at this photo, make some observations of this one. Can you make them on this one as well? On the face of the report, without denigrating anyone, that seems to be the exercise that is being undertaken and, as I said earlier, it might be the case that Mr Roberts can give certain opinions perhaps even as to well, in my opinion, there’s some similarity in the marks on the exhibit cartridge and the marks on the test cartridges but it is the next step, the final conclusion which really the jury can do and the Crown on the trial can hold up the blown up photos and invite the jury to make that conclusion. It’s not---
HIS HONOUR: Your point has got to be not only can the jury do it but he can’t do it?
MR ODGERS: Well, that’s right and my point is because the jury can do it, that would suggest it’s an opinion that is not wholly or substantially based on the expertise. It is based on a visual comparison and a subjective interpretation which Mr Roberts himself concedes.
His Honour made the following observations:
(a)The accused’s shot gun looked the same as the gun in the CCTV footage of the incident (at [575]).
(b)The accused had purchased the shot gun from the Shooters Wholesale Warehouse from which, during the relevant period, only three other identical weapons had been purchased (at [576]).
(c)There was an equivocal exchange between the accused and police when police searched his house on 26 July 2018 (at [577]).
His Honour appropriately gave little weight to the above three observations. He then moved on, at [578], to what he considered to be “the most significant evidence on this aspect”:
578. The most significant evidence on this aspect of the Crown case was that of Mr Roberts:
(a)Following his test firing of the accused’s weapon he identified a crescent shape just below the ejector cut-out mark that he would not normally see, and identified within each crescent shape similar marking in the same relative location. He also identified the same crescent shape and interior markings on the test fired cartridge cases and the cartridge cases from the crime scene in the same relative location, the same relative orientation, depth, shadow creation, shape and size. He was able to identify the part of the bolt face on the shotgun that was responsible for creating that crescent shape on the cartridge case, and could conclude that it was not the product of a subclass characteristic.
(b)He also identified other similarities or impressions in the same relative location on the test fired and exhibit cartridge cases on the primer that were not the result of subclass characteristics.
(c)His ultimate conclusion was that the markings on the exhibit cartridge cases from the crime scene were consistent with coming from the accused's shotgun.
As observed by his Honour the result of Mr Roberts’ opinion was that “the markings on the exhibit cartridge cases from the crime scene were consistent with coming from the accused’s shotgun”. The appellant has submitted that this should have been the limit of any conclusion that was open to his Honour. He should not have moved on to the findings he made at [580] and [581]:
580. So far as the crescent shaped area was concerned, having regard to:
(a)the repetition of microscopic features within the crescent shaped area;
(b)the explanation of the manner in which that crescent shaped area was created as a result of the plastic deformation of a part of the bolt face adjacent to the ejector cut‑out; and
(c)the evidence that the crescent shaped area did not arise from subclass characteristics ([227] above),
its existence and features are strong evidence that the accused’s weapon fired the exhibit cartridge.
581. So far as the impressions on the primer area of the cartridge were concerned:
(a)the multiple microscopic impressions on the primer which were repeated between test and exhibit cartridges;
(b)the fact that these arose as a result of the firing process; and
(c)were not the result of subclass characteristics ([230] above),
is also strong evidence that the accused’s weapon fired the exhibit cartridge.
At [583] and [584] his Honour pointed out some matters in support of the accused which tended to suggest that the accused’s shot gun was not the weapon used in the incident. In general terms his Honour gave little weight to these factors.
Ultimately his Honour effectively concluded that the ‘non-Roberts’ factors, respectively favouring each party, cancelled each other out leaving only the expert’s opinion as the defining factor of whether or not the cartridges found at the scene had been fired by the accused’s gun. He did so, as already seen and quoted, for the reasons he sets out in [579] and [582]. Simply put, says the appellant, he went beyond the bounds set for this evidence, namely that it could not establish any more than a consistency between the ammunition and the gun. It could not lead to conclusion that ‘this gun fired that ammunition’.
It is noteworthy that the Crown, in his closing address, after summarising the evidence of Mr Rogers ended with this statement:
There is the fact that he identified other similarities or impressions in the same relative location on the test fired and exhibit cartridge cases on the primer that were not the result of subclass characteristics.
The fact that Clive Roberts’ opinion - that, in his opinion, the markings on the exhibit fired cartridge cases from the crime scene were consistent with coming from the accused’s shot gun (Transcript pages 650 and 651).
Besides being noteworthy, the above extract from the Crown’s closing address, is entirely in line with the Crown’s opening, where it was said, at transcript page 25:
[Mr Roberts] will be able to describe to you the process of how tool marks left on firearms, how the metal impacts and leaves dints – for want of a better word - and I expect that he will tell you that in his opinion, there were similarities between the tool markings left on the shotgun cartridge shall which were retrieved from the crime scene, and the ones that he had testified from the accused’s shot gun.
The remarks by the Crown speak of a consistency. They do not, no doubt because of careful preparation, suggest the original opinion of Mr Roberts that the cartridges were shot by the appellant’s gun.
Thus clearly the Crown did not seek to go beyond a finding of consistency, yet his Honour did feel it permissible to go further. To return to [579], his Honour discussing the opinion of Mr Roberts, specifically stated:
… However, it is not appropriate to strip the opinion of its foundations and context and thereby ignore all of the other evidence given by the witness and focus only on his ultimate conclusion. …
The Crown, at the hearing, clearly understood the limits of the Court of Appeal’s interlocutory ruling. This reinforces the conclusion that his Honour intended to, and in fact did, go beyond the limits imposed on the use of Mr Roberts’ opinion.
The Crown, in response to the appellant’s submissions, sought to distinguish the ruling of the Court of Appeal from that asserted by the appellant. The Crown said that the appellant had “drastically overstated the extent to which this Court’s earlier decision has constrained the scope of the evidence that Mr Roberts could give”.
The Crown submitted that there had not been a definitive decision that Mr Roberts’ opinion was limited to a finding of consistency. It is correct that the final orders made by the Court of Appeal do not specifically use the word “consistency”. The order was:
The opinion of Mr Clive Roberts that “both the exhibit and test fired cartridge cases were fired in the same firearm” is not to be admitted into evidence in the applicant’s trial.
The Court of Appeal, at [83], stated that its decision was derived from an interpretation of the limits of an expert’s specialised knowledge.
What else but a limit of consistency can be derived from these words at [83] of the Court of Appeal’s judgment:
Evidence of similarity based on objective criteria is one thing, evidence purporting to establish that it is from the same firearm is quite another.
It is abundantly clear from the judgment, and from the transcript of the hearing, that the intent of the Court was to limit Mr Roberts’ opinion to a finding of consistency only. As noted above, this was clearly recognised by the Crown in the running of the case.
The result is that this ground of appeal must succeed. As stated by the High Court in Simic v The Queen (1980) 144 CLR 319, at 332:
Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.
Appropriately, the respondent conceded that if Mossop J had gone beyond the constraints imposed by the Court of Appeal, then a successful appeal was inevitable.
The next question is, what is the result of this success?
It is evident from his Honour’s judgment that the appellant’s use of his shot gun was an integral, and determinative, element in his conclusion that the appellant was a participant in the offending. At [610] he said:
610.As pointed out above, the evidence that the weapon used in the incident was the weapon owned by the accused was very strong.
Then at [615], after considering some alternative possibilities, his Honour said:
615. That leaves the possibility that some unidentified person associated with the Comancheros using the accused’s shotgun, or another 12‑gauge shotgun with similarities to that of the accused, was offender 2. In my view the circumstances established by the Crown case, when considered together, exclude that possibility beyond a reasonable doubt. I am satisfied beyond a reasonable doubt that offender 2 is the accused and that he was using his own shotgun.
Because the conclusion about the gun was such a vital constituent in his Honour’s identification of the appellant as a person participating in the criminal conduct, it must follow that success on this appeal ground infects every count relying on the identification; namely every count on which a verdict of guilty was entered.
Re-trial or acquittal?
The appellant submitted that while success of this nature would normally result in a re-trial, in the particular circumstances of this case, there should be an acquittal on each count in which there had been a guilty verdict. The respondent accepted that the result would extend to each verdict but, having regard to the gravity of the offences and the existence of other evidence against the accused, submitted there should be an order for a re-trial.
The respondent conceded that the gun evidence was an important part of his Honour’s conclusion but said there was nevertheless a good deal of other evidence, including Mr Roberts’ opinion to the extent permitted, which taken together still left a strong circumstantial case. These other matters were listed by his Honour at [552]:
552.The fundamental threshold issue is whether the Crown has established that offender 2 shown in the CCTV is the accused. The Crown case on that is a circumstantial one which the Crown seeks to bolster with the admissions of which AB gave evidence. The Crown put forward a large aggregation of facts in six different categories which it said established the identity of offender 2 beyond reasonable doubt. The six categories were:
(a)the Comanchero split and hostility towards Peter Zdravkovic;
(b)the accused’s enthusiasm to be a Comanchero;
(c)similarities between the accused’s shotgun and the shotgun used during the shooting;
(d)similarities between the accused and “offender 2”;
(e)the accused’s post-offence conduct; and
(f)the accused’s admissions to AB.
His Honour went on to deal with each of the categories and while it may be said he found substance, and a degree of assistance in the identification question, in some of the categories, none of them, other than in relation to the gun, assumed a significantly persuasive status. Tellingly, when his Honour came to his “Conclusion as to identity of the offender”, from [609], he says very little about the categories other than at [610]:
610.As pointed out above, the evidence that the weapon used in the incident was the weapon owned by the accused was very strong.
If the “very strong” evidence is removed, and noting his Honour completely rejected the evidence of AB, the cellmate informer, it must be concluded that, at a re-trial, the Crown would be left with a substantially weaker case.
The appellant has now been in custody for almost three years. There have been two trials and three appeals. If there is a re-trial it will be the third trial faced by the appellant. He is the only one of the four persons alleged to have committed the offences who has been apprehended, let alone come to trial.
The reasoning of Bellew J in the New South Wales Court of Criminal Appeal in R v Lazarus [2017] NSWCCA 279, from [160], is applicable here:
160.There is an obvious public interest in the prosecution and conviction of offenders charged with serious criminal conduct. It is also desirable that the guilt or otherwise of any offender be determined by the appropriate tribunal of fact. Those factors weigh in favour of an order being made for the respondent to be re-tried.
161.Equally however, there are other factors which point in the opposite direction. I have already noted the fact that any re-trial would take place more than five years after the event. Further, whilst I recognise that any criminal trial is an ordeal for a complainant, it is also an ordeal for an accused. Moreover, the circumstances which bring about the possibility of a re-trial are not the fault of the respondent, or those acting for him. That is a relevant consideration: Reid v R (1980) AC 343 at 350 per Lord Diplock.
162.It is also significant that the respondent finds himself in this position for a second occasion, such that an order for a re-trial would see him being tried for a third time. As is the case in the present instance, the circumstances which resulted in the previous order for a re-trial were not the fault of the respondent.
163.Having regard to all of these circumstances it would, in my view, be oppressive to put the respondent to the expense and worry of a third trial in those circumstances: Spies v R (2000) 201 CLR 603; [2000] HCA 43 at [103]. This is particularly so given the fact that he was sentenced to a term of imprisonment of which he served 10 months before being released following the previous judgment of this Court.
164.The Crown emphasised the necessity for this Court ensuring that it did not usurp the functions of those authorities entrusted with the responsibility of initiating and conducting criminal prosecutions. That is clearly a relevant consideration. However, like any other individual consideration is it not, of itself, determinative. Intervention by an appellate Court to exercise its discretion not to order a re-trial may nevertheless be justified to ensure that subjecting an individual to the continued operation of the criminal justice system does not, of itself, operate as a source of oppression or unfairness: R v Thomas (No.3) (2006) 14 VR 512; [2006] VSCA 300 at [27] per the Court (Maxwell P, Buchanan and Vincent JJA).
165.The Crown also pointed to the fact that in R v PL (2009) 261 ALR 365;[2009] NSWCCA this Court ordered that the accused be tried a third time. However, for the reasons I have already expressed, the relevant facts and circumstances must be considered on a case by case basis. The mere fact that an order was made in one case that an accused be tried for a third time obviously does not mean that such a course must be followed in the present case.
166.In R v PL [2010] NSWCCA 256 Spigelman CJ, when considering the manner in which the discretion should be exercised by this Court, said (at [88]):
In a passage frequently cited by Australian Courts, Black J said in Green v United States 355 US 184 at 187-188 (1957):
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
167.His Honour went on to observe (at [91]) that notwithstanding its partial abrogation, the principle of double jeopardy remains a fundamental one which is obviously relevant to the exercise of the Court’s discretion.
168.In my view, in the circumstances of the present case, an order for a re-trial would bring about a conclusion of the kind referred to by the Court in Thomas (No. 3), namely that it would give rise to oppression and unfairness. It follows that a consideration of all the relevant factors weighs in favour of this Court exercising its discretion not to order that the respondent be tried for a third time.
Recognising the severity of the charges, but taking into account the above observations, it is my opinion of that there should not be a re-trial and that verdicts of acquittal should be entered on each count. I would then suggest the following orders:
(i)The appeal is allowed.
(ii)The verdicts of guilty on counts 2 to 7 inclusive, returned by Mossop J on 23 December 2020, are set aside.
(iii)In lieu of the verdicts of guilty, verdicts of not guilty are entered in respect of counts 2 to 7 inclusive.
The consequence of my conclusion about the first ground is that it is not necessary to consider the second ground of appeal. However, Burns J and McWilliam AJ do not agree on the disposition of the second ground. They both think that the appeal should be dismissed in respect of Counts 2 and 6. They differ on Count 3. Burns J thinks the appeal in respect of this count should be allowed and has proposed consequential orders amending the sentences imposed on the appellant. McWilliam AJ would dismiss the appeal in respect of Count 3 and therefore, having regard to her views on the balance of the appeal, would dismiss the whole of the appeal.
Because of the difference of opinion it is necessary for me to consider ground two. I do so notwithstanding that my views on the first ground effectively negate the Crown case on identity. Suffice to say that I agree with Burns J on Count two. This achieves a final result designed to reach the “highest common denominator” in the sense described by Bathurst CJ in Hawi v R [2014] NSWCCA 83; 244 A Crim R 169 at [375].
Accordingly, the orders proposed by Burns J should be made.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 25 October 2021 |
McWILLIAM AJ:
I have had the benefit of reading, in draft, the separate judgments of Burns J and Elkaim J respectively on this appeal of the verdicts in the court below. In summary, I generally agree with the conclusion of Burns J in respect of the first ground, or appeal ground (a), for the reasons given by his Honour. I will add some brief further reasons below.
In respect of the second ground of the appeal, or appeal ground (b), I also agree with the conclusion of Burns J and his Honour’s reasoning for concluding that there was no error in the primary judge’s findings concerning Counts 2 and 6.
However, in respect of Count 3, being the agreement to commit arson with intent to endanger life, I do not consider there was any error in the reasoning of the primary judge. For reasons set out below, I consider it was open to the primary judge to find beyond reasonable doubt that the agreement included an intention to endanger life, or to put it another way, that the verdict on Count 3 was reasonable.
The first ground (a): whether the primary judge erred in concluding that the evidence of Mr Roberts permitted a conclusion that the exhibit fired cartridges were fired by the appellant’s firearm
It is unnecessary to traverse the factual detail already set out in each of the separate judgments of Burns J and Elkaim J. There are three aspects to the reasoning process that has led me to agree with Burns J in respect of this ground.
First is the essential purpose of expert evidence and the principles applying to its admissibility. As explained below, the purpose of expert opinion evidence is to assist the fact finder; it does not confine or bind the fact finder, who is to form an independent view about the evidence. As a matter of principle, the interlocutory ruling of the earlier decision in this Court, namely Sidaros v The Queen [2020] ACTCA 11 (earlier Court of Appeal ruling) at [83], did not limit the inferences the primary judge could draw from the expert evidence of Mr Roberts. In that regard, I specifically concur with the reasons of Burns J at [31] above.
Second, and perhaps overtaking the first question of principle, the opinion was presented before the primary judge in a manner that was different from the two written expert reports that were the subject of consideration in the earlier Court of Appeal ruling, so that it is doubtful whether the earlier ruling has the limiting effect for which the appellant contends in any event. That is a separate and additional reason for why the appellant’s complaint does not succeed.
Third, and independently from how the earlier Court of Appeal ruling is interpreted or applied, on a fair reading of the reasons of the primary judge, his Honour did not make the error asserted by the appellant with regard to the opinion evidence of Mr Roberts. As Burns J has stated above at [30], the primary judge did not find, based on the evidence of Mr Roberts, that the exhibit cartridge cases were the same as those fired from the firearm owned by the appellant. Mossop J found that they were consistent, and that the reasoning of the expert underlying that opinion was “strong” (adopting the words at [580] of the primary judge’s reasons) and indeed highly persuasive. His Honour relied upon a number of “strands in a cable” (as described by the primary judge at [553]) to ultimately find that the accused was the offender identified as offender 2 in the CCTV footage that captured the offence.
These three aspects will be considered in turn.
The earlier Court of Appeal ruling
In the earlier ruling of this Court (differently constituted), the issue relevant to this appeal concerned s 79(1) of the Evidence Act 2011 (ACT) (Evidence Act), which contains two requirements for an expert opinion to be admissible. First, the section requires that the person proffering the opinion has specialised knowledge, based on the person’s training, study or experience. Second, the opinion must be wholly or substantially based on that specialised knowledge: Honeysett v The Queen [2014] HCA 29; 253 CLR 122 (Honeysett) at [23]-[24].
In relation to the first limb, it was stated in Honeysett at [23] that “specialised knowledge” is knowledge which:
… is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific of technical kind and a person without any formal qualifications may acquire specialised knowledge by experience …
In relation to the second limb, the reasoning process of the expert must be exposed or be made sufficiently transparent, so as to demonstrate that the expert’s opinion is based upon particular specialised knowledge: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 (Dasreef) at [35]-[37]; HG v The Queen [1999] HCA 2; 197 CLR 414 (HG v The Queen) at [39]; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) at [85].
It was the second limb that was the subject of consideration in the earlier Court of Appeal ruling, where it was stated at [80]:
80.The three grounds … are interrelated. It is therefore appropriate to deal with this ground on the basis that the asserted error is, at its core, that the opinion of identification was not wholly or substantially based on specialised knowledge.
The appellant’s argument heavily relied upon the earlier Court of Appeal ruling, and in particular, the conclusion at [83]. The full context of the relevant passage at [83] has already been set out by Elkaim J at [76] of his Honour’s reasons above. It includes the following (emphasis added):
83.It is not enough to assert that an opinion is based on specialised knowledge. The opinion of “sufficient agreement” is not susceptible to objective measurement in this case …
The Court of Appeal went on to state in the same paragraph (emphasis added):
… The visual comparison by Mr Roberts was subjective in nature and not conducted by reference to accepted objective criteria. … It does not on the facts of this case go above a bare ipse dixit - I say it is: see Dasreef at [93] …
It is important to understand what the Court of Appeal meant in [83] in determining the permissible use of Mr Robert’s evidence by the primary judge. The words emphasised in the above two extracts highlight that the Court of Appeal’s concern with regard to the second limb of s 79(1) was the fact that the opinion of the expert was not sufficiently linked to his specialised knowledge in a way that explained “the scientific or other intellectual basis” of the conclusion reached (being the language used by Heydon J in Makita at [85]).
Importantly though, s 79(1) does not require that the opinion itself be “susceptible to objective measurement” or that a subjective expert opinion “be conducted by reference to accepted objective criteria,” being the language used in the earlier Court of Appeal ruling. Those words appear to have been a product of incorporating the applicant’s submissions during argument on appeal (who is the appellant here), which the Court of Appeal had earlier set out in its decision at [73] (emphasis added):
… Accordingly, it was submitted the opinion of “sufficient agreement” is merely a subjective exercise and the knowledge of Mr Roberts is not capable of objective measurement. It was not sufficient to simply assert that the opinion was based on specialised knowledge. Where it was accepted there was some element of subjectivity in the opinion, there is no explanation in the Interlocutory Judgment as to how the opinion was nevertheless based on specialised knowledge …
What I consider the Court of Appeal meant at [83] by the words “objective measurement” and that the opinion should be “conducted by reference to accepted objective criteria” was that the opinion should be sufficiently transparent to be capable of independent evaluation by the trier of fact. Further (from the words I have emphasised in the above extract), the visual comparison of tool marks by Mr Roberts did not sufficiently link his conclusion of identity to the specialised knowledge that he undoubtedly had.
This interpretation is confirmed by the Court of Appeal’s reference in [83] to Dasreef at [93]. This reference is to the judgment of Heydon J, who delivered separate reasons to the plurality. In that paragraph, Heydon J quoted with approval the following observation of Anderson J in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 390 (emphasis added):
The process of inference that leads to the [expert’s] conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them.
Heydon J went on in the same paragraph to incorporate a reference to a “bare ipse dixit” (being the words that were quoted in the earlier Court of Appeal ruling at [83]), through a passage of Lord Cooper, the Lord President in Davie v Magistrates of Edinburgh [1953] SC 34 (Davie) at 39-40 (emphasis added):
The value of [expert opinion] evidence depends … above all upon the extent to which [the expert’s] evidence carries conviction…
[T]he defenders went so far as to maintain that we were bound to accept the conclusions of [an expert witness]. This view I must firmly reject as contrary to the principles in accordance with which expert opinion evidence is admitted…[The] duty [of expert witnesses] is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence…[T]he bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.
In my view, the emphasised words from the extract in Davie are the true import of the reasoning of the earlier Court of Appeal ruling at [83]. It is worth noting the context to the Lord President’s statement.
The circumstances in Davie were that expert evidence had been given on the science of explosives, and it was uncontradicted. The submission made was that the judge was bound to accept the conclusions of the expert (Davie at 40). The oft-cited reasons of the Lord President were made in the course of rejecting that argument. The reason the context is worth recalling here is because the argument that was rejected in Davie bears some resemblance to the appellant’s argument on appeal – that the primary judge as trier of fact was effectively bound to go no further than Mr Roberts’ opinion that the test cartridges shot from the accused’s firearm were consistent with those of the exhibit cartridges found at the crime scene.
My concern about the language used in the earlier Court of Appeal ruling at [83] arises because of the detailed judicial consideration that has been given to the requirements of s 79 of the Evidence Act, in particular that an assessment of the reliability of scientific evidence, including by way of validation, does not arise under s 79: see R v Tang [2006] NSWCCA 167; 65 NSWLR 681 (Tang) at [137], Tuite v The Queen [2015] VSCA 148; 49 VR 196 (Tuite) at [70]-[77], and more recently Xie v The Queen [2021] NSWCCA 1; 386 ALR 371 (Xie) at [295]-[301].
In Tang, the NSW Court of Criminal Appeal dealt with a similar issue in a different field of expertise. The field in question was anatomy and “facial mapping”. The issue was whether the expert could express an opinion regarding “similarity” versus “identity”. Spigelman CJ (with whom Simpson J and Adams J agreed) stated the following at [147]-[148] (emphasis added):
147.As Gleeson CJ said in HG v The Queen (at 427 [39]):
“[39] … [T]he provisions of s79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.”
148.His Honour also said (at 427 [40]): “... the witness had to identify the expertise he could bring to bear and ... his opinions had to be related to his expertise”.
Spigelman CJ then went on to find at [154]:
154.The three opinions of [the expert] in the present case do not, in my view, go beyond a “bare ipse dixit”. [The expert] did not identify the terms of the “strict protocol” that she purported to have applied, nor did she set out the basis on which the “protocol” was developed. Indeed, she said that this information was confidential, because of what she described as a “process of patenting my innovations”. Accordingly, she had not published any of these “innovations”. The critical matter is that she did not identify her “protocol” or explain its basis.
The emphasised words in the above two paragraphs are to highlight that the problem was one of presentation and explanation, which deprived the fact finder of the ability to truly evaluate the cogency of the opinion.
Earlier in Tang, Spigelman CJ had stated at [137]:
137.The focus of attention must be on the words “specialised knowledge”, not on the introduction of an extraneous idea such as “reliability”. (Cf Velevski v The Queen (2002) 76 ALJR 402 at 417 [82], 426 [154]-[160]; 187 ALR 233 at 253 [82], 267 [154]–[160]; Perpetual Trustee Co Ltd v George (Einstein J, 1 December 1997, unreported); Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828 at [242]; S Odgers, Uniform Evidence Law, 6th ed (2002) Sydney, Law Book Co at 260 [1.3.4260]; I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, 3rd ed (2005) Sydney, Law Book Co at 97–98; J Anderson, J Hunter and N Williams, The New Evidence Law (2002) Australia, LexisNexis Butterworths at 246).
In Tuite, the Victorian Court of Appeal, accepting that reliability was not a proper consideration under s 79, relevantly stated at [77] (emphasis added):
77.It follows, in our view, that a person’s knowledge may qualify as ‘specialised knowledge’ for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others …
Taking [83] of the earlier Court of Appeal ruling out of its context, phrases such as an opinion requires “objective measurement” and “accepted objective criteria” might be construed as the Court of Appeal importing considerations of validation and reliability into s 79(1), when that was clearly not the intention of the Court.
That is not to say that an assessment of the reliability of expert evidence, or matters such as whether there is an underlying scientific validation to an expert opinion, are entirely irrelevant. It may be that those types of considerations still form part of an assessment of whether there is a danger of unfair prejudice that would arise under s 137 of the Evidence Act: see IMM v The Queen [2016] HCA 14; 257 CLR 300 at [57]; referred to in Xie at [301]. It is unnecessary to delve further into the issue here, as that was not the issue before the Court of Appeal in its earlier ruling, which limited its consideration to the requirements of s 79(1).
The evidence before the primary judge
The reason I have endeavoured to provide a detailed consideration of the effect of the earlier Court of Appeal ruling is because of what then happened in the judge alone trial before Mossop J.
The evidence led from Mr Roberts was by reference to the reports that he had previously prepared in the matter (which were the same reports the subject of the earlier Court of Appeal ruling), but Mr Roberts also gave extensive oral evidence and detailed explanations during the trial before Mossop J. This included evidence given about his own analytic experience and the forensic discipline of tool mark identification. Mr Roberts explained what he described as marks on a tool that were unique, and how to distinguish such marks from marks that were incidental to the manufacturing process, being described as “subclass characteristics” (see [221] of the primary judge’s reasons).
Mr Roberts then went on to explain the particular processes that had been used in relation to the firearm that had been seized at the residence of the accused, being the Adler 12-gauge firearm, including how he was able to identify what manufacturing processes had been used.
Next, Mr Roberts explained the tool marks he observed on the test fired cartridges (under microscope). This included explaining how he was able to identify that particular marks found on those test cartridges fired, which matched those on the exhibit cartridges found at the crime scene, were unique, and were not the product of subclass characteristics (explained by the primary judge at [221] as artefacts of manufacturing, which might have been created on a number of items manufactured using the same equipment). He focused on the “features” and each aspect that his expert analysis covered: the size, the same relative location on the cartridge case, the same orientation and the shadows that are cast because of the same depth of the marks. As part of that evidence, additional questions were asked by both the prosecution and the primary judge.
The substance of the evidence may have been consistent with the expert reports considered in the earlier Court of Appeal ruling, but the presentation of the evidence and the additional explanations by Mr Roberts in the witness box were plainly in a form that better enabled the primary judge to understand and assess both the specialised knowledge and how it was used by Mr Roberts to arrive at the opinion of similarity and consistency he did. Critically, it allowed the primary judge to bring an independent judgment to that opinion evidence, and to form a view that the evidence carried conviction.
The following passages from the transcript are examples of where Mr Roberts had such an exchange with the primary judge (emphasis added):
His Honour: Can I just ask you one question about these two crescents that you are comparing. How do you know that they are not products of a subclass characteristic?
[Roberts]--- It’s because when I examined the bolt face, your Honour, the face of the bolt in particular, I was able to identify what part of that bolt face was responsible for creating the marks in that location and that crescent shape mark on the cartridge case. The face of the bolt was finished by abrasive machining, so whether it be sandblasting or bead blasting or something similar. The whole process of finishing a metal surface by that abrasive machining is essentially a randomised way. It is blasting out millions of sand grains per second against a metal surface and there is no order to in which way they’re expelled out of a nozzle, they just get blasted onto it. So to be able to – even going down to the microscopic level on a piece of metal, to be able to get a sandblasting machine and move metal to create that texture and then go to another surface and do it and have exactly the same pitch and the same orientation and the same depth of the metal occurring between sandblastings is, in my opinion, almost impossible.
…
His Honour: …How can you say that they are not sub-class characteristics of the cartridges?
[Roberts]---Because you don’t have this dappled appearance on the cartridges before they’re fired. There’ll be some – that’s another thing, your Honour, it’s a good question. We – when we’re examining ammunition as well you’ve got to understand that there may be some sub-class marks in the process of manufacturing of ammunition but they’re quite gross and easy to find.
These examples serve to demonstrate that Mr Roberts and the primary judge engaged in a detailed consideration of the tool marks or features. Through that process, the opinion of Mr Roberts was presented in a “form” (to adopt the words of Gleeson CJ in HG v The Queen at [39]) that enabled it to be better unpacked and critically examined by the fact finder. In particular, the underlying reasoning for similarity between tool marks went further than what was contained in the written reports considered by the Court of Appeal in its earlier ruling.
That is a further reason why I do not consider that the earlier Court of Appeal ruling bound the primary judge as to what inferences could permissibly be drawn.
For the same reasons, even if the Crown conducted the case before the primary judge on the basis that the limit of the expert opinion of Mr Roberts was consistency (as discussed in the reasons of Elkaim J at [85]-[94] above), the primary judge was not bound to limit his independent valuation of the evidence in the same manner. If the specialised knowledge, as explained and applied to the circumstances of this case, supported further inferences to be drawn, then the primary judge was lawfully able to make such a finding. His Honour expressly raised that possibility with counsel for the defence during closing submissions, so there is no question of denial of procedural fairness, and in any event, that was not the subject of complaint by the appellant.
The reasons of the primary judge
The primary judge set out the evidence of Mr Roberts in particular detail. The critical parts of the primary judge’s recording of the evidence and his Honour’s findings are set out in the judgment of Burns J above at paragraphs [16]-[18].
I respectfully agree with his Honour’s explanation above at [31]-[32], that the primary judge was not prevented from forming his own view about the strength of the expert evidence that had been led before his Honour. Nor was his Honour prevented from drawing inferences or conclusions about that evidence, whether those conclusions were solely based on Mr Roberts’ evidence or made in combination with other items of evidence.
I would only add that that is especially the case where the expert evidence before the primary judge was presented in the form here. It included oral evidence given by the expert actively explaining how the specialised knowledge he had about the manufacturing process for the particular firearm tool was used to reach a view about which of the tool marks analysed under a microscope were attributable to unique identifying tool marks. It also included oral evidence explaining how Mr Roberts eliminated the possibility that particular tool markings on the cartridges were a product of subclass characteristics.
However, again, as Burns J states above at [31]-[32], while it was open to the primary judge to find that the evidence of Mr Roberts permitted a conclusion that the exhibit fired cartridges were fired by the appellant’s firearm, the primary judge did not draw that conclusion; nor was the evidence of Mr Roberts solely relied upon by the primary judge to reach the conclusion about the identity of offender 2 (see the other circumstantial evidence supporting identity outlined at [34] of Burns J’s reasons).
It is true that other matters relevant to the similarities between the accused’s shotgun and the shotgun used during the shooting were not found to be individually persuasive by the primary judge ([575]-[577] of the primary judge’s reasons). These included the CCTV footage which depicted a shotgun that looked the same as the appellant’s shotgun, the fact that the accused purchased an Adler A110 shotgun, the evidence of the gun salesman that he would have only sold three of the particular type used in the shooting in the ACT, and the appellant telling the police that no one else used his firearms. However, the discounting of other matters relevant to similarity does not elevate the primary judge’s discussion of Mr Robert’s evidence on similarity to one of identity.
As I read the reasons of the primary judge at [552]-[600] of the reasons, save as to the evidence of AB, other matters that were separately relevant to establishing identity were each given weight or significance. This is made plain in the primary judge’s conclusion on identity at [615]:
615.That leaves the possibility that some unidentified person associated with the Comancheros using the accused’s shotgun, or another 12 gauge shotgun with similarities to that of the accused, was offender 2. In my view the circumstances established by the Crown case, when considered together, exclude that possibility beyond a reasonable doubt. I am satisfied beyond a reasonable doubt that offender 2 is the accused and that he was using his own shotgun.
The remainder of the circumstantial evidence relevant to identity, discussed in detail by the primary judge in the said paragraphs of the reasons, plainly entitled the primary judge to form a satisfaction that the only rational inference was that the appellant was offender 2.
The second ground: whether the verdicts in respect of Counts 2, 3, and 6 are unreasonable
In respects of Counts 2 and 6, I agree entirely with the reasoning and conclusion of Burns J as set out above and have nothing further to add.
However, in respect of Count 3 I have reached a different conclusion. In my view, no error has been established with regard to the verdict of guilty on that count.
In the reasons given by the court below, the primary judge set out the elements of Count 3 for the offence of attempted arson with intent to endanger life by joint commission at [542]:
542.The elements for the offence of attempted arson with intent to endanger life by joint commission are:
(a)There was an agreement between two or more people (one of whom was the accused) that one or more of them would, with the intention of endangering the lives of those present at 20 Carter Crescent, destroy or damage the house by fire.
(b)The agreed offence was attempted: the accused or another person who was party to the agreement deliberately did acts that were immediately connected with endangering the lives of those present at 20 Carter Crescent by destroying or damaging the house by fire (embarked upon the offence by engaging in conduct that was more than merely preparatory to the offence).
(c)At the time of that conduct, the accused and at least one other party to the agreement with the intention of endangering the lives of those present at 20 Carter Crescent, intended to destroy or damage the house by fire.
It is necessary to elaborate a little further on the requisite intention. Section 115(6) of the Crimes Act 1900 (ACT) (Crimes Act) sets out when a person will be taken to have the specific intention as it relates to the offence of arson, as follows (emphasis added):
(6) For section 116 (Destroying or damaging property) and section 117 (Arson), a person who destroys or damages property shall be taken to have intended to endanger the life of another person by that destruction or damage if he or she acted—
(a) with intent to endanger the life of any other person; or
(b) in the knowledge or belief that his or her actions were likely to endanger the life of another person.
As the offence was alleged to have been committed by joint commission, a further element of intention is incorporated through s 45A(4) of the Criminal Code 2002 (ACT) (Criminal Code) (emphasis added):
(4)A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement.
The word “intend” directs attention to s 18 of the Criminal Code, which defines “intention” as follows:
18Intention
(1)A person has intention in relation to conduct if the person means to engage in the conduct.
(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3) A person has intentionin relation to a circumstance if the person believes that it exists or will exist.
The appellant referred to Issa v R [2017] NSWCCA 188 and Zaburoni v The Queen [2016] HCA 12; 256 CLR 482 at [14] as having some application in terms of what is meant by intention. However, such authorities do not directly correlate to the particular statutory definitions applying in the Territory, and it is preferable to focus on what is required by reference to the provisions set out above.
It does not appear there was any specific debate or even any discussion between the parties as to the statutory definition of intention before the primary judge. However, that does not mean that s 115(6) was not applied in substance in the court below. In my view, it was covered by the elements of the offence that were formulated by the Crown and adopted by the primary judge (at [542] of the reasons below, extracted at [158] above).
The first element is that there was an agreement, with the “intention of endangering the lives…”. Those words reflect s 117 of the Crimes Act. The second element is that the “agreed offence” was attempted. The words used in that element were “deliberately did acts that were immediately connected with endangering the lives of those present”. Such language is consistent with the words of s 115(6), being acts known or believed to be likely to endanger the life of another person.
In any event, the argument by the appellant as to why the verdict was unreasonable does not depend on any nuances between the wording of the statutory definition and the elements of the offence for Count 3 as applied by the primary judge. The alternative hypothesis the appellant argues was reasonably available was an awareness of a risk of physical danger to the occupants, but falling short of an intention to endanger life. Whether one adopts the words in the statutory definition or that of the elements as formulated, the critical point remains that being reckless of the possibility that the life of another person may be endangered is not sufficient (as Burns J sets out at [46] of his Honour’s reasons).
If I may respectfully take that proposition and unpack it further by reference to the statutory provisions set out above and in the context of the facts under consideration here:
(a)Section 45A of the Criminal Code required an agreement between the appellant and at least one other person specifically to engage in the conduct that constituted an offence under s 117 of the Crimes Act.
(b)The conduct itself had two parts to it: the first being the physical act of destroying or damaging the house by fire, and the second being the intention to endanger life.
(c)In respect of the second part, one way that such an intention was satisfied was if the Crown proved to the criminal standard of proof that the agreement (the joint commission) included damaging the house by fire with a “belief” that the life of another person was “likely” to be endangered (being the words in s 115(6) of the Crimes Act).
The appellant’s argument on appeal relied on Knight v The Queen (1980) 175 CLR 495 (Knight) at 503 to the effect that, if there was “an inference or hypothesis consistent with innocence was open on the evidence” then the primary judge ought to have “given the appellant the benefit of the doubt necessarily created by that circumstance” (being the language used by the majority in Knight).
The issue with regard to the mental element required was not directed to the state of mind with regard to the act of arson; it concerned whether there was an intent to endanger life. That is, whether the Crown proved beyond reasonable doubt that there was an agreement to set fire to the house with at least the knowledge or belief that such conduct was likely to endanger the life of another person (as opposed to physical danger).
It is in that respect that I differ from the conclusion of Burns J at [50] as to what is proven on the evidence before the Court.
In my view, the scale of the conduct and the actions of the intruders when they were at the premises exclude a hypothesis being reasonably available that the intruders were reckless as to the possibility of any fire endangering the lives of any occupants of the house.
The time of night the offenders chose to attend the premises was a time when it was likely the occupants of the house would be home.
The intruders carried weapons. Even on the appellant’s alternative hypothesis (that has been rejected for reasons given by Burns J above in respect of Counts 2 and 6), those weapons were carried for the purpose of anticipating coming under attack from Mr Zdravkovic. It is inherent in that hypothesis that the intruders believed Mr Zdravkovic was likely to be home.
The cars of the occupants were in the garage and the back light was on, making it likely that someone was home.
Lest there be any doubt about it, the CCTV footage shows the intruders peering through the back door of the premises twice before any petrol was poured. Allied to this is the stealthy manner in which the intruders moved about the courtyard in the premises, signalling to each other, crouching down, and going back to check what was going on inside the house through looking in the back door as petrol was being poured on the cars. That behaviour is consistent with, at the very least, a consciousness that people are likely to be inside the premises.
In those circumstances, it cannot be said that the intruders were reckless as to whether anyone was home. On the contrary, every aspect of their conduct was consistent with a belief that there was likely to be someone in the premises at the time.
Finally on this point, before the intruders took the step of pouring petrol inside the house itself (a matter addressed separately below), there was an exchange of gunfire. To my mind, the return of gunfire from inside the house puts it beyond doubt that the intruders agreed to damage the property by fire in the belief that it was likely people would be inside the house at the time, and further that they were in fact aware or believed that there was someone in the house when the offence of arson was committed.
The next step is to consider the conduct that occurred, as part of the circumstances relevant to any belief in the likelihood of harm and the extent of the danger (given that what is required is endangerment of life). Burns J has set out what the respondent submitted as the relevant circumstances at [48] above, and they are included as part of those I consider to be relevant to the collective state of mind.
Again, the incident occurred late at night, being a time when occupants are likely to be slower to be alerted to and to respond to an emerging danger.
The intruders set fire to each of the vehicles at the residence and created a petrol trail from the vehicles to the rear sliding door. The petrol trail, once ignited, would have increased the danger of very significant harm to the occupants of the house – harm sufficient to endanger their lives.
The location chosen by the intruders to ignite the fire was at an entry/exit point to the house.
Significantly, the conduct itself was of a kind that was inconsistent with the proposition that the agreement of the intruders lacked the specific intent as defined by statute. The intruders broke open the back door, and having done so, used an accelerant there. Further, the person holding the petrol can did not just pour the fuel at the door; he threw the fuel container into the premises. This evinces an intention not solely to damage the property, but to ensure that once ignited, the fire would travel into the house and be significant, thus increasing the likelihood of danger to the lives of any occupant inside. In my view, such conduct is simply not consistent with a careless or reckless attitude towards endangering life. That is especially the case when that part of the conduct occurred after someone was known to be in the house, by virtue of the fact that such person (Mr Zdravkovic) discharged a firearm in the direction of the intruders.
Taking the circumstances as a whole, I am unable to accept as a reasonably available alternative hypothesis that the intention of the intruders was to damage or destroy the property by fire but without the “knowledge or belief” that such conduct was “likely to endanger the life” of the occupants. The circumstances proven by the Crown exclude the possibility that the intruders were only aware of the likelihood of some physical harm to the occupants of the house.
Contrary to the appellant’s submissions, I consider the requisite intention element was satisfied and concur with the primary judge’s findings at [627]-[632] of the reasons in the court below that each of the elements of Count 3 was satisfied beyond reasonable doubt. Accordingly, the verdict that the appellant was guilty of the charge was not unreasonable.
Conclusion
For the above reasons, I would dismiss the appeal.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Date: 25 October 2021 |
Final orders of the Court
The Court orders:
1.The appeal is upheld to the extent that the conviction and sentence imposed by the primary judge on Count 3 are set aside and a verdict of not guilty is entered;
2.The appeal is otherwise dismissed;
3.The remaining sentences imposed by the primary judge on 16 February 2021 (R v Sidaros (No 6) ACTSC 24) are to be served as follows:
i.Count 2: 4 years imprisonment commencing 30 August 2018 and expiring 29 August 2022;
ii.Count 5: 4 years imprisonment commencing 30 August 2019 and expiring 29 August 2023;
iii.Count 6: 4 years imprisonment commencing 30 August 2020 and expiring 29 August 2024;
iv.Count 4: 3 years imprisonment commencing 1 March 2022 and expiring 28 February 2025.
v.Count 7: 18 months imprisonment commencing 28 February 2024 and expiring 27 August 2025;
vi.Transfer charge: 21 days imprisonment commencing 30 August 2018 and expiring 19 September 2018.
4.The total period of imprisonment is seven years commencing on 30 August 2018 and expiring on 29 August 2025. A non-parole period of 3 years and 11 months is set to commence on 30 August 2018 and expire on 29 July 2022.
| I certify that the preceding one [1] paragraph is a true copy of the final orders of the Court. Associate: Date: 25 October 2021 |
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