Legal Research
Cases
Sidaros v The Queen (No 3)

Sidaros v The Queen (No 3)

Case [2021] ACTCA 31 25 October 2021

Statutory Construction

Criminal Law

Evidence

Type to search within this case.

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:

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:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sidaros v The Queen (No 3)

Details

AGLC: 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