Sidaros v The Queen (No 3)

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.