Sidaros v The Queen (No 3)

Case [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
Criminal Code 2002
(ACT) ss 18, 44, 45A, 312, 318, 404,
Firearms Act 1996
(ACT)

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
Hawi v R [2014] NSWCCA 83; 244 A Crim R 169
HG v The Queen
[1999] HCA 2; 197 CLR 414
Honeysett v The Queen [2014] HCA 29; 253 CLR 122
Issa v R [2017] NSWCCA 188
Knight v The Queen (1980) 175 CLR 495
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Lazarus [2017] NSWCCA 279
R v Sidaros
[2019] ACTSC 177
R v Sidaros (No 2)
[2019] ACTSC 348
R v Sidaros (No 5) [2020] ACTSC 354
R v Sidaros (No 6) [2021] ACTSC 24
R v Tang [2006] NSWCCA 167; 65 NSWLR 681
Sidaros v The Queen [2020] ACTCA 11
Sidaros v The Queen (No 2) [2020] ACTCA 39
Simic v The Queen (1980) 144 CLR 319
Tuite v The Queen [2015] VSCA 148; 49 VR 196
Xie v The Queen [2021] NSWCCA 1; 386 ALR 371
Zaburoni v The Queen [2016] HCA 12; 256 CLR 482

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:

  1. 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:…

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Sidaros v The Queen (No 3) [2021] ACTCA 31
Case
[2021] ACTCA 31
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Burns, Elkaim JJ and McWilliam AJ, heard an appeal by Axel Sidaros against his convictions for six offences, including attempted murder, grievous bodily harm, arson, trespass with intent, damaging property by fire, and discharging a firearm. The charges arose from an incident on 28 June 2018 involving an exchange of gunfire and arson at a residential property. The primary judge, sitting without a jury, had found the appellant guilty of these six counts, having previously acquitted him of attempted murder. The Crown's case alleged that the appellant and others had committed these offences by joint commission under section 45A of the Criminal Code 2002 (ACT).

The appeal raised two grounds: first, whether the primary judge erred in admitting evidence from a forensic firearms examiner, Mr. Clive Roberts, concerning fired cartridge cases found at the scene and a shotgun belonging to the appellant; and second, whether the verdicts for grievous bodily harm, arson, and discharging a firearm were unreasonable. The central dispute regarding Mr. Roberts' evidence concerned the interpretation of a previous Court of Appeal decision which had excluded his opinion that the exhibit cartridge cases and test-fired cartridges were fired from the same firearm. Despite this exclusion, the Crown led evidence from Mr. Roberts detailing the manufacturing process of the shotgun's bolt and the nature of the tool marks left on the cartridge cases, arguing this evidence allowed for an inference that the appellant's firearm had discharged the exhibit cartridge cases.

The Court of Appeal considered the evidence of Mr. Roberts in light of the previous ruling. It noted that the Crown, consistent with the earlier decision, did not present Mr. Roberts' direct opinion that the exhibit cartridges were fired from the appellant's shotgun. Instead, the Crown relied on Mr. Roberts' detailed explanation of the tool marks, including the unique nature of the crescent-shaped mark on the bolt face and the absence of subclass characteristics, which he testified made it "almost impossible" for such identical marks to be created by different firearms. The primary judge had found this evidence provided a "solid foundation" for concluding the appellant's weapon fired the exhibit cartridges, despite acknowledging that the evidence, stripped of context, might only establish a lack of inconsistency. The Court of Appeal ultimately found that the verdicts were not unreasonable, and the primary judge had correctly applied the principles of joint commission and the admissibility of expert evidence.

The Court of Appeal dismissed the appeal. It held that the primary judge did not err in admitting Mr. Roberts' evidence, as it did not contravene the earlier Court of Appeal ruling and was relevant to the assessment of the significance of the tool marks. The Court found that the primary judge was entitled to infer from the detailed evidence about the tool marks and their unique characteristics that the exhibit cartridge cases were fired from the appellant's firearm. Furthermore, the Court concluded that the verdicts in respect of Counts 2, 3, and 6 were not unreasonable, given the totality of the evidence presented at trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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