Dastmozd v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0048

ALI DASTMOZD	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2025
DATE OF JUDGMENT:	23 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 138
JUDGMENT APPEALED FROM:	[2023] VSC 29 (Hollingworth J)

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CRIMINAL LAW – Conviction – Appeal – Substantial miscarriage of justice – Applicant made admission to police prior to being cautioned – Whether trial counsel should have objected to admission being used in evidence – Whether applicant bound by conduct of trial counsel –Whether Liberato direction should have been given to jury – Leave to appeal granted – Appeal dismissed.

Saricayir v The Queen [2018] VSCA 319; Frendo v The Queen [2024] VSCA 319; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 268 CLR 57, applied.

Jury Directions Act 2015, ss 15, 16.

EVIDENCE – Admissions – Appeal – Police told applicant to get on the ground and asked whether he stabbed the complainant before cautioning – Police formally arrested applicant after applicant made admission – Whether applicant in company of investigating official for purpose of being questioned under s 139(5) of the Evidence Act 2008 – Whether applicant in custody suspected of having committed an offence under s 464A of the Crimes Act 1958 – Leave to appeal granted – Appeal dismissed.

R v Naa (2009) 76 NSWLR 271; George v Rockett (1990) 170 CLR 104 applied; Severino v The King [2017] NSWCCA 80 distinguished.

Evidence Act 2008, ss 138(1)(a), 139(1), 139(5).
Crimes Act 1958, ss 458, 459, 464(1), 464A(2), (3).

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Counsel
Applicant:		Mr J Hannebery KC, with Ms J Poole
Respondent:		Ms J Wang
Solicitors
Applicant:	SLKQ Lawyers
Respondent/s:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
TAYLOR JA
OSBORN JA:

On 1 October 2020 Ms Sahar Seyedi was at home with her children and Mr Mohammad Vahid Nejad, a male friend who she had invited to dinner. Ms Seyedi had been separated from her husband, the applicant, since late 2018 or early 2019. At around 9:00 pm the applicant went to Ms Seyedi’s home. He knocked on the door, and Ms Seyedi opened the door. The applicant then entered the house. When he went inside he found that Mr Nejad was present. A violent incident involving a knife then occurred in the house. By the end of that incident, Mr Nejad had received at least five documented wounds or impacts. Most significantly, upon presentation at hospital, doctors observed a 20 cm incision in his neck that cut into a major muscle,[1] requiring repair. Mr Nejad’s jugular vein was also cut and required stitching to prevent bleeding. The applicant had a small cut on his finger but was otherwise not injured. None of these matters were in dispute. Rather, what was in dispute was who produced the knife, and how Mr Nejad’s injuries were caused.
[1]The sternocleidomastoid muscle, which is used to turn the head from side to side.
After receiving several 000 calls, police arrived on the scene. When they encountered the applicant, Senior Constable Kung directed the applicant to ‘get on the ground’. Around 20 seconds later, an exchange took place in which SC Kung asked the applicant ‘Did you stab the other guy?’ and the applicant replied ‘[indistinct sound] yeah’. This exchange occurred before the applicant was cautioned. Body-worn camera footage showing the exchange was admitted into evidence, without objection.
The applicant was charged with aggravated burglary in relation to his entry into the house[2] and with three alternative offences in relation to the injuries to Mr Nejad: attempted murder,[3] causing serious injury intentionally,[4] and causing serious injury recklessly.[5] He pleaded not guilty to these charges.[6] After a trial he was convicted of aggravated burglary and of causing serious injury intentionally.
[2]Contrary to s 77 of the Crimes Act 1958.
[3]Contrary to s 321M of the Crimes Act 1958 and the common law.
[4]Contrary to s 16 of the Crimes Act 1958.
[5]Contrary to s 17 of the Crimes Act 1958.
[6]In addition, the applicant pleaded guilty to a charge of damaging property, contrary to s 197(1) of the Crimes Act 1958, on the same indictment.
The applicant now seeks leave to appeal against his conviction on the following proposed grounds of appeal:[7]
(a)Ground 1: A substantial miscarriage of justice occurred because evidence of the applicant’s admission to stabbing the complainant, made to a police officer prior to being cautioned and in response to direct police questioning, should have been excluded but was placed before the jury.
(b)Ground 2: A substantial miscarriage of justice occurred because of the combined prejudicial effect of the jury hearing evidence which should have been excluded (specifically, evidence of the admission and of the applicant having ‘psychological problems’) and the risk of impermissible speculation, adverse to the applicant, regarding the knife sheath.
(c)Ground 3: A substantial miscarriage of justice occurred because the jury was not directed that, even if they did not accept the account given by the applicant in the field interview, they must not convict the applicant unless satisfied that the Crown had proved its case beyond reasonable doubt.
[7]For convenience, we will refer to the applicant’s proposed grounds of appeal as grounds of appeal.
Ground 1 turned on whether the applicant’s admission was obtained improperly or in contravention of an Australian law.[8] The applicant contended that the admission had been obtained improperly because it fell within the scope of s 139(1)(a) of the Evidence Act 2008, read with s 139(5). He also contended that the evidence had been obtained in contravention of s 464A of the Crimes Act 1958.[9]
[8]Evidence Act 2008, s 138(1)(a) (‘Evidence Act’).
[9](‘Crimes Act’).
The applicant accepted that ground 2 turned on the combination of all of the aspects of the evidence identified in the ground and that this ground fell away if the admission to SC Kung was properly admitted into evidence.
The applicant also seeks an extension of time to file his application for leave to appeal, which was filed approximately one year after the statutory deadline.
For the reasons that follow, we would grant the extension of time and grant leave to appeal, but dismiss the appeal. In summary:
(a)We do not consider that the admission to SC Kung was obtained improperly or in contravention of an Australian law. Ground 1 thus fails.
(b)Given our conclusion in relation to ground 1, ground 2 does not arise.
(c)The direction that the applicant contends should have been, but was not, given was not required in light of the directions given by the judge.

The evidence at trial

The Crown alleged that on the evening of 1 October 2020 the applicant forced his way into his former wife’s home with the intention of assaulting Mr Nejad (charge 1 – aggravated burglary). The elements of aggravation were that the applicant attended the house with a knife and that he knew that Ms Seyedi was present.[10] The Crown case was that, after entering the house, the applicant intentionally stabbed the complainant multiple times (charge 2 – attempted murder; charge 3 – causing serious injury intentionally; charge 4 – causing serious injury recklessly) and then damaged the complainant’s vehicle as he left (charge 5 – criminal damage).
[10]Although the Crown relied upon both aggravating circumstances (person present and with an offensive weapon), knowledge of Ms Seyedi’s presence was not disputed. Accordingly, it was agreed that the jury would be directed only in relation to the aggravating circumstance of person present.
Mr Nejad gave evidence that on the evening of 1 October 2020, he had dinner with Ms Seyedi and her two children. At around 9 pm, someone knocked on the door. Ms Seyedi told Mr Nejad that it was the children’s father, and asked Mr Nejad to go to the bedroom. Mr Nejad went to the bedroom. He heard someone saying ‘Who is here? Where is he?’. The door of the bedroom then opened, and Mr Nejad saw the applicant standing in the doorway with a knife in his right hand, with Ms Seyedi standing behind him. The applicant said to Mr Nejad, ‘Who are you? What do you want here?’. Mr Nejad, seeking to escape, pushed past the applicant in the doorway and moved into the corridor. He then felt something hit his head. He was pushed onto a couch. The applicant then stabbed him with a knife to his head, neck and arm. The applicant said ‘I kill you’ many times as he stabbed Mr Nejad. At one point, the applicant held Mr Nejad’s face with his hand and Mr Nejad, afraid that he was going to be stabbed in the face, grabbed the knife by its blade, pushed the applicant away and then went out the front door of the house, which was open.
As Mr Nejad was fleeing, he saw the applicant chasing him. Mr Nejad threw the knife into a neighbour’s yard so that the applicant would not be able to get it. Mr Nejad then went to the house next door, where a female neighbour had emerged from her house. She asked him not to go inside as there was a child in the house. He ended up outside a house down the road and was sitting in the driveway of that house when police arrived.
Ms Seyedi gave evidence that the applicant knocked on her door about an hour after Mr Nejad (whom she called ‘Vahid’) arrived. She saw that it was the applicant through a window, and asked Mr Nejad to go to her bedroom. In the course of her evidence the following question and answer occurred:
Why was Vahid in your bedroom?---Because, um, as we were sitting on the couch, that is, next to the window, when he came to the door, I could see him through the window as we were sitting on the couch and since I knew of his psychological problems, um, therefore I asked Vahid to be in my bedroom so nothing happens.
Ms Seyedi then opened the door. The applicant wanted to come in. He said he was worried about Ms Seyedi. She told him she had a guest so he could not come in.[11] The applicant said ‘I know who he is’, pushed Ms Seyedi aside, and entered the house. He took a knife out of his back pocket while he was in the doorway. The applicant then started searching for someone. He found Mr Nejad in the bedroom and said to him, ‘What are you doing here? This is my house. This is my wife’. Ms Seyedi was standing behind the applicant, trying to calm him down.
[11]Ms Seyedi’s evidence about whether the applicant was permitted to enter was somewhat equivocal. When asked if the applicant was allowed to come inside she said ‘He was allowed to come because he was the children's father but not in this way’. When later asked whether she had said that the applicant could come inside her house, Ms Seyedi said she did not remember. When asked if she wanted the applicant in her house that night, she answered ‘No’.
Ms Seyedi said that she saw the applicant hit Mr Nejad on his head and face with the back of the knife while Mr Nejad was sitting on the bed in the bedroom. She said that she then escaped to get help, and while she was looking for her children, to take them out, she saw the applicant and Mr Nejad in the living area. She said that she saw Mr Nejad on the couch, covered in blood. She said that Mr Nejad was defending himself and the applicant was stabbing him with a knife. Under cross-examination, she said that while the men were on the couch, she did not see who had the knife. Ms Seyedi then fled the house with one of her children and sought help from her neighbours; at the time she left the house, the applicant and Mr Nejad were still in the living area.
Karen Mecca, one of Ms Seyedi’s neighbours, gave evidence that Ms Seyedi had come to the Mecca house with one of her children. Ms Seyedi was distraught that her daughter was not with her. Ms Mecca went out her front door to find Ms Seyedi’s daughter, and Mr Nejad appeared on her front doorstep with a big injury on his neck. He did not have anything in his hands. Ms Mecca saw the applicant coming towards them. As the applicant got closer, Mr Nejad ran off. Ms Mecca then spoke with the applicant, who was covered in blood. He said: ‘Where is he’, ‘Is he dead?’, ‘If he’s not dead, I’m going to kill him’, ‘I want to kill that motherfucker’ and ‘I told her, … my fucking wife, … I told her if I ever come here and she has the boyfriend in front of my kids I will kill the motherfucker’.
In the course of the above events, various people called 000 and a number of police officers attended. One of those officers was SC Kung. Given the significance of his evidence, and of the footage from his body-worn camera, it is appropriate to set out in some detail what occurred once SC Kung arrived.
In relation to how he came to be at the scene, and what occurred before he encountered the applicant, SC Kung’s evidence-in-chief was, relevantly, as follows:
Now, at 9.29 pm, did some Triple 0 calls come through?---That’s correct.
Where were you directed to go?---Ah, we initially headed straight to the scene. I believe we were behind the Glen Waverley unit who stopped ahead of us and approached the victim who - and they rendered first aid to the victim.
In terms of the scene, was that at Banff Close in Mulgrave?---That’s correct. Yeah, Banff Close in Mulgrave.
What information were you given about why you were going to that scene?---Um, the job came through that there was a stabbing involved - so the complainant stated it was the neighbour’s ex-partner, Ali and another male.
Did you first go to 5 Mansfield Avenue in Mulgrave?---Ah, when we arrived we were outside Mansfield Avenue, and then we were directed to head down Banff Close, Mulgrave, where the potential offender would be.
…
Now, did you observe the male at Mansfield Avenue?---I did, yes.
What did you notice in terms of him?---Um, he appeared to be bleeding from the neck. What appeared to be a heavy laceration. Quite amount - quite a lot of blood present.
Did you direct First Constable Abraham to commence first aid?---That’s correct.
All right. Now, at 9.37, did Sergeant Morel arrive?---Yes, that’s correct.
Did some further information come through as to where the offender might be?- --Yes, that’s correct.
Now, where were you told to go?---Ah, we were told to head up to Banff Close, Mulgrave, where the - the offender was present. We were unsure, um, as to exactly where he was. Just in that vicinity.
Now, were you in a marked police vehicle at that time?---Ah, we were in an unmarked car at the time, but we did have our red and blue lights flashing.
SC Kung then indicated various locations on a map that had been brought up on a screen in the courtroom. Then the following exchange occurred:
All right. From there, you’ve indicated you went to Banff Close. Is that where you went and can you explain to the jury where you went on that map?---Yep. So we turned down Banff Close and were slowly heading in, I guess, an easterly direction looking at that map, towards, I believe, it was No.5 or 6, where we - I activated my body-worn camera and that’s when I observed the male standing on the nature strip behind a vehicle.
SC Kung then explained what a body-worn camera is. The following exchange then occurred:
Why did you activate that body-worn camera?---So I activated the camera as I got out of the vehicle. As I was driving up Banff Close, I did observe a male standing on the nature strip outside No.6, I believe it was, and I believe the job did say - I think it might have been 6 Banff Close was where the stabbing occurred or in that vicinity.
All right. Now, I’m going to play your body-worn camera footage in a moment. But what did you observe in terms of that male?---Um, I could see what appeared to be a large amount of blood on his left sleeve.
Yes?---And he did have some, um, blood on, I believe - a small amount of blood on the front of his - his clothing.
The body-worn camera footage was then played to the jury. The transcript of the relevant part of the footage is as follows:[12]
[12]In the body-worn camera footage, SC Kung gets out of his car at the 30 second mark. SC Kung was Acting Sergeant at the time of the recording.
ACTING SERGEANT KUNG: Get on the ground, mate. Where’s the knife?
MR DASTMOZD: Knife, I don’t know.
ACTING SERGEANT KUNG: Just get on the ground.
MR DASTMOZD: O.K. ..........
ACTING SERGEANT KUNG: Put your hands - put - get - lay down on your stomach.
MR DASTMOZD: Huh?
ACTING SERGEANT KUNG: Lay down on - on your stomach.
MR DASTMOZD: Like that?
ACTING SERGEANT KUNG: Yep. Hands behind your back.
MR DASTMOZD: O.K., no worries, man.
ACTING SERGEANT KUNG: All right. Hands behind your back. Stay there.
MR DASTMOZD: Don’t worry, man. The fight is finished.
KUNG: Where – the fight’s finished?
MR DASTMOZD: Yes.
KUNG: Did you stab the other guy?
MR DASTMOZD: [indistinct sound] Yeah.
It is this final question and answer that constitute the admission that the applicant contends ought to have been excluded. This exchange occurred 20 seconds after SC Kung got out of his car and began interacting with the applicant. The exact terms of what the applicant said — in particular, the indistinct sound — and the meaning he intended were in issue at the trial.
Following the key exchange, the interaction between SC Kung and the applicant continued, as follows:
ACTING SERGEANT KUNG: What’s your name?
MR DASTMOZD: I’m Ali.
ACTING SERGEANT KUNG: O.K. 707.
RADIO OPERATOR: Go ahead.
ACTING SERGEANT KUNG: 707, it appears we have the other male involved in the incident .......... stabbed .......... male .......... is in custody at the moment. Ali, what’s your surname, mate?^[[13]]
[13]SC Kung’s radio communication with the radio operator occurred at the 1 minute mark in the body-worn camera footage, ie around 30 seconds after SC Kung got out of his car. It was at this point, following the admission, that SC Kung advised the radio operator the applicant is in custody.
MR DASTMOZD: Ali Dastmozd.
ACTING SERGEANT KUNG: Dastmo?
MR DASTMOZD: Dastmozd, yes.
ACTING SERGEANT KUNG: Is it just you and this other guy?
MR DASTMOZD: .......... yeah.
ACTING SERGEANT KUNG: Just you and this other guy?
MR DASTMOZD: Other guy is gone.
ACTING SERGEANT KUNG: Where’s - who stabbed who?
MR DASTMOZD: Huh?
ACTING SERGEANT KUNG: Is it just the two of you that - - -
MR DASTMOZD: Yes.
ACTING SERGEANT KUNG: O.K.
MR DASTMOZD: Me and another one. He’s - he’s - he’s - he’s ..........
ACTING SERGEANT KUNG: Yeah, 707. He is at this stage. If I can get another unit here too .......... just in case. All right.
MR DASTMOZD: Can I ..........
ACTING SERGEANT KUNG: Just stay - stay still, mate. Do you need - do you need ambulance?
MR DASTMOZD: Nuh, nuh.
ACTING SERGEANT KUNG: O.K.
MR DASTMOZD: I’m O.K. Can I - can I ..........
MS MECCA: .......... the other guy that he’s got, he’s – I don't know where he’s gone.
ACTING SERGEANT KUNG: There’s another male?
MS MECCA: Yeah, the other male ..........
ACTING SERGEANT KUNG: There’s another male.
MR DASTMOZD: Yeah, he’s gone. He’s gone.
MS MECCA: Yeah. So they live next door.
ACTING SERGEANT KUNG: O.K.
MS MECCA: He lives next door - - -
MR DASTMOZD: Can I ..........
CONSTABLE GITTUS: Just stay on the ground, mate.
MS MECCA: - - - that side with ..........
ACTING SERGEANT KUNG: Stay on - stay on the ground.
MS MECCA: ..........
ACTING SERGEANT KUNG: All right. So what’s your name?
MR DASTMOZD: Ali, Ali.
ACTING SERGEANT KUNG: Ali, what’s your surname?
MR DASTMOZD: D-A-S - - -
ACTING SERGEANT KUNG: Yep.
MR DASTMOZD: - - - T-M-O-Z-D.
ACTING SERGEANT KUNG: All right. Ali, do you understand right now you’re under arrest - - -^[[14]]
[14]SC Kung informed the applicant that he was under arrest for ‘stabbing the other male’ at the 1 minute 57 second mark of the body-worn camera footage, ie around 1 minute and 30 seconds after SC Kung got out of his car.
MR DASTMOZD: ..........
ACTING SERGEANT KUNG: - - - for - for stabbing the other [male]?
MR DASTMOZD: I don’t know.
ACTING SERGEANT KUNG: You understand you’re under arrest?
MR DASTMOZD: Under arrest?
ACTING SERGEANT KUNG: Yeah, you’re under arrest.
MR DASTMOZD: No.
ACTING SERGEANT KUNG: O.K. I’m gunna tell you your caution and rights. You got the - you’re not obliged to say or do anything but - - -
MR DASTMOZD: Huh?
ACTING SERGEANT KUNG: You’re not obliged to say or do anything but anything you say or do can be recorded and used as evidence. Do you understand that?
MR DASTMOZD: O.K.

Following the caution, the applicant then answered further questions from SC Kung.[15] In those answers he claimed that someone had come into his home, that he had a wife and two kids, and that he had a fight with the other man. He said that they had engaged in ‘boxing’, that during the fight the other man had pushed him, then the applicant hit his head on the door and was ‘asleep’ for two or three minutes. He said that there was no weapon involved, he had only used his hands. He did not know where all the blood on the other man had come from.
[15]The applicant’s conversations with SC Kung outside the house are referred to as ‘the field interview’.
The body-worn camera footage of the period before SC Kung cautioned the applicant was admitted into evidence at trial without objection from the defence. The question ‘Did you stab the other guy?’ and the answer ‘yeah’ was relied upon by the prosecution as an admission by the applicant that he had stabbed Mr Nejad. At trial, the defence argued that, properly understood, this statement was not an admission. On the appeal, the applicant accepted that it was an admission.
A police officer located the knife in the front garden of a neighbouring property. A forensic expert gave evidence that, in broad terms, DNA analysis was strongly supportive of:
(a)the blood on the applicant being from Mr Nejad;
(b)DNA on the knife handle being from contributors including Mr Nejad and the applicant; and
(c)blood on the knife blade being from Mr Nejad.
In addition to the knife, a cardboard knife sheath was found in Banff Close. It had some Asian characters on it and was said to be apparently related to the knife. The knife sheath was not tested for DNA or fingerprint evidence.
In cross-examination, Ms Seyedi was shown a picture of the knife and asked if she had ever seen it before. She said ‘I think it’s my kitchen knife’. Ms Seyedi was also shown a picture of the sheath and asked if she had ever seen it before; she said that she did not remember.
A forensic physician gave evidence that there were at least five documented wounds or impacts with a sharp force observed on Mr Nejad, including an incision to the neck that transected the sternocleidomastoid muscle and the external jugular vein. In addition, a wound to his arm had half transected his triceps muscle and severed his ulnar nerve. He had a wound on the base of his thumb. Mr Nejad required surgery in relation to these and other wounds. There were no features of the injuries that suggested they were self-inflicted.
The applicant had a cut finger, and no other injuries.

Relevant statutory provisions

Section 138(1)(a) of the Evidence Act provides that evidence that was obtained improperly or in contravention of an Australian law ‘is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’.
Section 139 relevantly provides as follows:
(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—
(a) the person was under arrest for an offence at the time; and
(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
…
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—
(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
(b) the official would not allow the person to leave if the person wished to do so; or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
Section 464A of the Crimes Act relevantly provides as follows:
(2)If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a) inform the person of the circumstances of that offence; and
(b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.
(3)Before any questioning (other than a request for the person’s name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
Section 464(1) provides that, for the purposes of sub-div 30A, a person is ‘in custody’ if he or she is:
(a)under lawful arrest by warrant; or
(b)under lawful arrest under section 458 or 459 or a provision of any other Act; or
(c)in the company of an investigating official and is—
(i)    being questioned; or
(ii)     to be questioned; or
(iii)    otherwise being investigated—
to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

Ground 1: admissibility of the admission

Ground 1 concerned whether the applicant’s admission that he stabbed Mr Nejad ought to have been excluded. This argument turned on whether the evidence had been obtained improperly or in contravention of an Australian law, contrary to section 138(1)(a) of the Evidence Act.[16]

The significance of the fact no objection was taken below

[16]In his written case, the applicant contended in the alternative that his admission ought to have been excluded pursuant to s 90 and/or s 137 of the Evidence Act. The applicant did not address these sections at the hearing of the appeal. In our opinion, these sections could only provide a pathway to exclusion if the admission had been improperly obtained. That is because, in the absence of any impropriety, there would be no ‘unfair prejudice’ to the applicant. Rather, the prejudice would simply be that there was evidence that was adverse to him, which had been properly obtained. Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted: see, eg, Papakosmas v The Queen (1999) 196 CLR 297, 325 [91] (McHugh J); [1999] HCA 37; Thomas (a pseudonym) v DPP [2021] VSCA 269, [62] (Beach, Niall and Walker JJA). It is thus unnecessary to deal further with s 90 and s 137.

The applicant conceded that no objection to the admissibility of the admission had been taken below, but contended that the general rule that an accused person is bound by the way the trial is conducted by counsel ought not apply in this case for two reasons:
(a)First, on an objective evaluation, the failure to object to the admission could not have been the result of a decision made in anticipation of a forensic advantage. The admission was entirely adverse to the applicant’s interests and there was nothing about it that was capable of assisting the applicant. Indeed, defence counsel had to attempt to disavow that it was an admission.
(b)Secondly, even if the failure to object was a forensic choice, that choice was plainly wrong and, in such a case ‘a court on appeal may be satisfied that a substantial miscarriage of justice was occasioned’.[17]
[17]The applicant cited Saricayir v The Queen [2018] VSCA 319, [87] (Kaye, T Forrest and Ashley JJA) (‘Saricayir’).
The respondent did not seek to advance a case that there was any forensic advantage to the applicant in having the admission admitted into evidence. Counsel quite properly conceded that, although some aspects of the pre-caution body-worn camera footage could have been used to the applicant’s advantage, those aspects could have been used had the admission itself been edited out. Rather, the respondent contended that the forensic basis for the applicant’s counsel not objecting to the admission of the impugned evidence was that there was no proper basis for such objection. That is because the evidence was not obtained improperly or in contravention of an Australian law. Experienced counsel, evaluating the evidence correctly, would thus not make an application to exclude it.
We accept that, if the impugned evidence was obtained improperly or in contravention of an Australian law, there was no rational forensic reason not to object to its admission, relying upon s 138 of the Evidence Act. It was entirely against the applicant’s interests for his admission to SC Kung to be admitted in evidence. The admission was inconsistent with the account he later gave to police after had had been cautioned. It was also contrary to the manner in which his case was run at trial. Indeed, it required counsel to seek to persuade the jury that the statement was not an admission to stabbing the applicant.
Thus the key question on the appeal is whether the impugned evidence, properly assessed, was obtained improperly or in contravention of an Australian law.

The parties’ submissions on the impugned evidence

The applicant submitted that the impugned evidence — namely, his admission to police — was made when the applicant was under arrest, in response to direct questioning by the arresting police officer (SC Kung), and prior to being cautioned as to his right to silence. He submitted that the impugned evidence was therefore taken to have been obtained improperly pursuant to s 139(1)(a) of the Evidence Act, read with s 139(5). He further submitted that the evidence was obtained in contravention of s 464A(3) of Crimes Act.
In relation to s 139, the applicant submitted that SC Kung suspected the applicant to be the offender and had, in fact, arrested him:
(a)SC Kung had information that there had been a stabbing and that it involved a neighbour’s ex partner, ‘Ali’, and another male;
(b)SC Kung had seen Mr Nejad, who he described as ‘the victim’, and had seen that he had been stabbed in the neck and was bleeding extensively;
(c)SC Kung had been directed to go to Banff Close where the ‘potential offender’ was thought to be;
(d)when SC Kung first saw the applicant, the applicant had blood on his sleeve;
(e)SC Kung had chosen to put on his body-worn camera, suggesting that he suspected the applicant to be the offender; and
(f)as soon as he got out of the car, SC Kung immediately instructed the applicant to ‘Get on the ground’, indicating that he suspected the applicant of being the offender at that time.
In these circumstances, the applicant contended that, at the time he made the admission, he was under arrest. Thus, because the admission was made prior to a caution being administered, it was obtained improperly, as set out in s 139 of the Evidence Act, or in contravention of s 464A of the Crimes Act.
The applicant contended that, in the absence of such a caution, the impugned evidence ought to have been excluded under s 138 of the Evidence Act. However, because no application for exclusion was made, and because s 138 confers a discretion on a court, he contended that this Court ought not engage with the question whether the evidence ought to have been excluded under that section — rather, the convictions ought to be set aside and a retrial ordered, at which time a trial judge could determine any application that might be made under s 138.
He also contended that, had the impugned evidence been excluded, his conviction was not inevitable, in light of various deficiencies and inconsistencies in the evidence given at the trial by Mr Nejad and Ms Seyedi. Allowing the evidence to be admitted deprived the accused of a realistic chance of acquittal, resulting in a substantial miscarriage of justice.
In contrast, the respondent contended that the impugned evidence had not been obtained in a manner that rendered it improper for the purposes of s 139 of the Evidence Act, nor had it been obtained in contravention of s 464A(3) of the Crimes Act. The respondent contended that the applicant was not under arrest at the time he made the admission to SC Kung, nor was there sufficient information in SC Kung’s possession at that time to justify the arrest the applicant’s arrest in respect of an offence:
On the evidence, SC Kung had arrived at the scene with limited information. His questions to the applicant indicate that he was seeking to ascertain how many people were involved, where the knife was, and who had stabbed who. He did not arrest the applicant until after the impugned part of the conversation: … In those circumstances, the requirement in s 139(1) that the applicant be under arrest for an offence at the time was not satisfied. In relation to the ‘twin premises’ of s 464A(3), it is difficult to see how SC Kung could have had a suspicion that the applicant had committed an offence at the outset of their conversation: a suspicion requires more than speculation and must be ‘built upon some factual foundation’. Consequently, it is also difficult to see how the applicant could be said to have been in custody at the relevant time. The Court of Appeal has previously found in similar factual situations that s 464A(3) was not enlivened.
The respondent accepted that, if this Court were to conclude that there was an impropriety that engaged s 138, then we ought not embark upon the exercise applying that section, because it involved a discretion. Rather, the respondent submitted, even if the admission ought to have been excluded, there was no substantial miscarriage of justice because the convictions were inevitable.

Was s 139 engaged?

It is convenient to begin with an analysis of the operation of s 139 of the Evidence Act, which has been set out above. Bearing in mind that the applicant’s admission to SC Kung was made before the applicant was cautioned (thus s 139(1)(c) is satisfied), s 139(1) will have the effect that the admission is taken to have been obtained improperly if:
(a)the admission was made by the applicant ‘during questioning’; and
(b)the applicant was ‘under arrest for an offence’ at the time; and
(c)SC Kung was, by reason of his office, empowered to arrest the applicant.
The key issue between the parties was whether the applicant was ‘under arrest for an offence’ at the time he made the admission.
The applicant had not been formally arrested at the time he made the admission. Importantly, no force was used by SC Kung or his colleague at the scene before the applicant made his admission. Rather, SC Kung issued a series of directions to the applicant to ‘Get on the ground’ and ‘Stay there’, with which the applicant voluntarily complied. At the time he gave those directions, he was some distance from the applicant and primarily concerned to ascertain the whereabouts of the knife. It was only after the applicant’s admission that SC Kung’s colleague placed handcuffs on the applicant. SC Kung told the applicant that he was under arrest approximately 1 minute and 10 seconds after the admission.
However, s 139(5) of the Evidence Act provides that a reference to a person being under arrest includes three sets of circumstances in which a person is interacting with an investigating official (which is defined to include a police officer[18]).
(a)The first of these is where the official believes there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning (s 139(5)(a)).
(b)The second is where the official would not allow the person to leave if the person wished to do so (s 139(5)(b)).
(c)The third is where the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so (s 139(5)(c)).
[18]See the Dictionary to the Evidence Act 2008.
In oral argument, the respondent quite properly accepted that the third of these requirements was satisfied — that is, SC Kung had given the applicant reasonable grounds to believe that the applicant would not be allowed to leave if he wished to do so. In light of SC Kung’s commands to the applicant to get on the ground, put his hands behind his back, and stay there, it is plain that paragraph (c) of s 139(5) was satisfied. We pause to observe that s 139(5)(c) involves an objective assessment of what SC Kung did. It is thus of no moment that no evidence was adduced from SC Kung about his subjective state of mind.
In light of that concession, it is unnecessary to consider whether s 139(5)(a) or s 139(5)(b) might also have been satisfied.
Rather, the key question in the present case is whether the chapeau to s 139 was satisfied — that is, whether applicant was ‘in the company of SC Kung for the purpose of being questioned’. In our opinion he was not. That is so even though in the course of the relevant 20 to 30 seconds, SC Kung in fact asked the applicant several questions (including the question leading to the admission).
In order to explain our conclusion on this question, it is necessary to consider various authorities concerning s 139(5) of the Evidence Act. The first of these authorities is R v Naa.[19]
[19](2009) 76 NSWLR 271; [2009] NSWSC 851 (‘Naa’).
In Naa the accused was charged with the murder of his former partner. There was no dispute that he had stabbed her, thereby causing her death. Rather, the issues to be determined by the jury were whether, at the time of the stabbing, he had the intent necessary for murder and, if he had, whether a defence of substantial impairment was available. The prosecution sought to rely on certain admissions allegedly made by him during a ‘standoff’ between him and the police that occurred shortly after the stabbing the deceased. He submitted that those admissions were inadmissible because they were obtained in breach of an Australian law because he was not cautioned before the admissions were made.
The ‘standoff’ involved the accused man walking up and down in front of a house, holding two knives, one in each hand. Police arrived, and called to him to drop the knives. He refused and said ‘I’ve already stabbed her’. Similar exchanges occurred over the next 15 minutes or so. Eventually a conversation occurred between Officer McCarthy and the accused during which Officer McCarthy said that she wanted to talk with the accused ‘and find out what is happening with you’. She asked him ‘Who did you stab?’ The accused said, ‘Kara, she’s over there.’ He then pointed across the road and said, ‘And if she is not dead then I will go over there and kill her. And if you help her then I will do this again.’ Over a period of almost two hours Officer McCarthy and the accused talked extensively. Some parts of the conversation were recorded, but not all. At various times the accused talked of being killed by police but the conversation covered various areas including injuries suffered by the accused at work and the welfare of the children. Throughout this period the accused was armed with the two knives and officers had weapons trained upon him.[20]
[20]Naa (2009) 76 NSWLR 271, 275–6 [12]–[26] (Howie J); [2009] NSWSC 851.
Justice Howie held that the conversation between Officer McCarthy and the accused was not inadmissible by reason of the failure of police to caution the accused. Howie J said as follows:
The first question is whether the section applies to the situation in which the police were involved. It depends upon whether the police were engaged in ‘questioning’ the accused. The word is not defined in the Act. In general parlance it means ‘asking questions of someone’ or ‘interrogating’. I do not believe that the word means ‘a conversation during which questions are asked’. Clearly to my mind the section was aimed at formal or informal interrogation of a suspect by a police officer for the purpose of the officer obtaining information, whether or not at the time of the interrogation the suspect was formally under arrest.
Of course the section is aimed at the protection of a suspect and should not be unduly confined by technicalities or restricted so that it does not achieve the purpose for which it was enacted. But neither should it be construed to apply to a situation to which the words used in the section are not appropriate. The section could easily have defined the word ‘questioning’ to give it a meaning that it does not naturally convey. The section broadens the concept of ‘arrest’ to cover situations not normally falling within that term.
One of the difficulties with code-type provisions is that they do not allow for flexibility to meet the circumstances of a particular case. Here, although the accused was not under arrest and was committing an offence at the time of the conversations between the officers and him, the section operates as if he were under arrest. This is notwithstanding that the section could never have been intended to apply to such a factual situation as confronted the police here.
I do not believe that the conversation between officer McCarthy and the accused amounted to ‘questioning’ for the purpose of s 139. The questions asked by McCarthy were completely incidental to what she was trying to achieve: to convince the accused to put down the weapons for the safety of himself and others. She was not seeking information from him. She was seeking to distract him, to mollify him and ultimately to persuade him to disarm. No bystander watching the incident would have considered that the officer was questioning the accused. The section was never intended to apply to a siege situation where the police were involved in negotiation rather than investigation.[21]
[21]Naa (2009) 76 NSWLR 271, 295–296 [98]–[101] (Howie J); [2009] NSWSC 851 (emphasis added).

Naa was distinguished by the NSW Court of Criminal Appeal in Severino v The King.[22] In that case, the accused was alleged to have been driving a car involved in an accident, in which his passenger had died. Both he and the passenger were intoxicated at the time of the accident. The issue at trial was whether he was the driver. There were no eyewitnesses to the crash, but the accused made an admission to a civilian who arrived at the scene.[23] When police arrived, they asked the accused his name, and he said ‘I’m not telling you anything’. More police arrived, including Constable Curle. The second admission on which the prosecution relied was made in a conversation between Constable Curle and the accused. Constable Curle asked the accused a series of questions, including whether he had been driving, to which he answered ‘no’; then ‘I don’t know’; then ‘yes’. He also admitted to having been drinking. The accused was formally arrested at the conclusion of his conversation with Constable Curle. He was not cautioned before that conversation.[24]
[22][2017] NSWCCA 80 (‘Severino’).
[23]Severino [2017] NSWCCA 80, [4]–[8] (Payne JA, Campbel and Wilson JJ). This witness gave evidence that ‘all he [the applicant] said to me was his mates told him he was right to drive’.
[24]Severino [2017] NSWCCA 80, [15]–[16], [39] (Payne JA, Campbel and Wilson JJ).
The Court of Criminal Appeal said that it would infer that the police would not have let the accused leave and he was thus deemed to be under arrest under s 139(5)(b). The court then said that did not accept that the accused was not subject to ‘questioning’ for the purposes of s 139. The court distinguished Naa, and held that the questions asked by the police met the description of ‘questioning’ within the meaning of s 139.[25] Thus s 139(5)(b) of the Evidence Act was satisfied.[26]
[25]Severino [2017] NSWCCA 80, [80] (Payne JA, Campbell and Wilson JJ).
[26]The court went on to conclude that, notwithstanding the failure to caution, the desirability of admitting the evidence outweighed the undesirability of admitting it.
As Hulme J observed in DPP (NSW) v Owen, in Severino the Court of Criminal Appeal did not express disapproval of Naa.[27] Naa was also referred to with approval in Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW), albeit in very different circumstances.[28]
[27][2017] NSWSC 1550, [80] (Hulme J).
[28][2017] NSWSC 462, [69] (Fagan J). The case concerned a ‘pretext call’ in which a complainant asked questions of an accused during a recorded telephone call.
It is necessary, as Howie J observed in Naa, to bear in mind that s 139 has a protective purpose.[29] It is designed to ensure that an individual’s right to silence is protected. Furthermore, as the applicant contended, s 139 of the Evidence Act does not impose a duty on an investigating officer to give a caution before questioning a suspect; rather, the consequence of a failure to do so may result in the exclusion of evidence, after a balancing of public interests pursuant to s 138. Nonetheless, it is also appropriate to bear in mind that the requirement for a caution in order for evidence to be admissible is significant in the performance of police duties. Officers will be required to form a view about whether to administer a caution in a variety of circumstances, some of which will be more straightforward than others.
[29](2009) 76 NSWLR 271, 295 [98]–[99] (Howie J); [2009] NSWSC 851.
Turning to the present case, SC Kung was not cross-examined at trial and thus there is no direct evidence of his subjective state of mind at the time he encountered the applicant or at the time he asked the question ‘Did you stab the other guy?’. In the absence of direct evidence as to SC Kung’s state of mind, the applicant must establish the purpose for which the applicant was in SC Kung’s company from the circumstantial evidence as a whole.
It is clear that, within seconds after he left his vehicle, SC Kung asked the applicant a question — namely ‘Where’s the knife?’. He later asked the applicant the question ‘Did you stab the other guy?’. However, it does not follow from the fact that questions were asked that the applicant was ‘in the company of SC Kung for the purpose of questioning’. To the contrary, in our view the applicant was in the company of SC Kung in the relevant 20 second period for the purpose of SC Kung ensuring the safety of the public, including by recovering the weapon and by seeking to identify how many offenders there were and their identity.
The first thing SC Kung said to the applicant was ‘Get on the ground’. The applicant voluntarily complied with this direction. SC Kung then asked: ‘Where’s the knife?’ He then issued a series of instructions to the applicant about his position on the ground, which were clearly designed to prevent the applicant wielding a knife if he was (still) in possession of one. Again the applicant voluntarily complied. After telling the applicant to put his hands behind his back and ‘Stay there’, the applicant volunteered ‘Don’t worry, man. The fight is finished’. SC Kung then reiterated ‘the fight’s finished?’ The applicant said yes, then SC Kung asked ‘Did you stab the other guy?’, to which the applicant answered ‘[indistinct sound] yeah’. It was after this statement that SC Kung’s colleague placed handcuffs on the applicant and SC Kung advised the radio operator that the applicant was in custody.
This all occurred in 20 seconds, in circumstances where:
(a)SC Kung was aware that there had been a stabbing.
(b)SC Kung knew of one man who had been stabbed.
(c)SC Kung knew that police had not, at that stage, recovered the knife used in the stabbing.
(d)SC Kung knew that there was a ‘potential offender’ in an area to which he was directed to go.
(e)When SC Kung saw the applicant he saw blood on the applicant’s sleeve, but he did not know if this was the applicant’s blood or not.
(f)It can be inferred from his question ‘Where’s the knife?’ that that SC Kung did not know if the applicant had the knife in his possession.
(g)There was a woman in a dressing gown in the vicinity of the applicant, who can be seen on the body-worn camera footage.
(h)SC Kung did not know if there was anyone else involved in the incident, as revealed by a later question about whether it was ‘just the two of you’ involved.
We do not consider that it is plausible to characterise what occurred in this 20 second period as the applicant being ‘in the company of SC Kung for the purposes of questioning’. This was a volatile situation, where a stabbing had occurred, the weapon had not been recovered, members of the public could be at risk and the precise number of offenders was unknown. We infer from the evidence that SC Kung was seeking to locate the weapon and ensure the safety of members of the public, including by directing the applicant to get on the ground. His purpose at the relevant time was not directed at questioning the applicant, in the sense of interrogating him.
Thus we consider that s 139(5) was not engaged at the time SC Kung asked the critical question, so as to bring into play any enlarged meaning of when a person is ‘under arrest’.

Was s 464A(3) of the Crimes Act engaged?

It is necessary now to deal with s 464A of the Crimes Act. Section 464A(2) of that Act provides that ‘if a person suspected of having committed an offence is in custody for that offence’, an investigating official (relevantly include a police officer) may inform the person of the circumstances of that offence and question the person in order to determine the involvement (if any) of the person in that offence.
Section 464A(3) places a limit on s 464A(2), as follows:
Before any questioning (other than a request for the person’s name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
The phrase ‘in custody’ is defined in s 464(1) as follows:
For the purposes of this Subdivision a person is in custody if he or she is—
(a) under lawful arrest by warrant; or
(b) under lawful arrest under section 458 or 459 or a provision of any other Act; or
(c) in the company of an investigating official and is—
(i) being questioned; or
(ii) to be questioned; or
(iii) otherwise being investigated—
to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.
In the present case, the key question is whether the applicant was ‘in custody’ within the terms of s 464(1).
The applicant was not under lawful arrest by warrant. Nor, in our view, was he under lawful arrest under s 458 or 459 or a provision of any other Act, because he had not been formally arrested by SC Kung and because, as explained earlier, no force had been used to detain him: rather, police had directed him to get on the ground, and he had voluntarily complied with that direction.
The question, then, is whether the applicant was ‘in the company of’ SC Kung and was ‘being questioned, or to be questioned’ to determine his involvement in the commission of an offence, if there was sufficient information in SC Kung’s possession to justify the applicant’s arrest in respect of the offence.
This question requires attention to the power SC Kung had to effect an arrest. There was no suggestion that s 458 of the Crimes Act provided such a power. Rather, such a power, if it existed, was to be found in s 459 of the Crimes Act. That section authorises a police office to apprehend a person if they believe on reasonable grounds that the person has committed an indictable offence.
We do not consider that, either at the time that SC Kung left his vehicle, or at the time he asked the applicant ‘Did you stab the other guy?’, he had reasonable grounds to believe that the applicant had committed an offence.[30] We accept that there were reasonable grounds to believe that an offence had been committed, given that SC Kung had seen that Mr Nejad had been stabbed. But, in the first 20 seconds after getting out of the car, we do not consider that there were reasonable grounds for SC Kung to believe that the applicant was the person who had committed the offence. He might have suspected that the applicant was the offender, but as the High Court explained in George v Rocket, suspicion and belief are different states of mind.[31] Suspicion is a state of conjecture or surmise where proof is lacking; whereas the objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief.[32] The objective circumstances were not of that kind within the first 20 seconds of SC Kung getting out of his car. Rather, the objective circumstances reached that level after the applicant said ‘yeah’ in response to SC Kung’s question ‘Did you stab the other guy?’ — after which he was handcuffed.
[30]As required for the exercise of the arrest power found in s 459 of the Crimes Act.
[31](1990) 170 CLR 104; [1990] HCA 26.
[32]George v Rocket (1990) 170 CLR 104, 115–6 (The Court); [1990] HCA 26.
Given that conclusion, we do not consider that the applicant was ‘in custody’ within the meaning of s 464 of the Crimes Act at the time SC Kung asked him ‘did you stab the other guy’.

Conclusion on ground 1

As this Court observed in Frendo v The Queen,[33] it is a cardinal principle of our criminal justice system that, ‘as a general rule, and subject to certain carefully controlled qualifications’, parties are bound by the manner in which they conduct proceedings. That includes the manner in which the proceedings were conducted by their legal representative.[34]
[33][2024] VSCA 319, [112] (Priest, Taylor and Boyce JJA).
[34]Frendo v The Queen [2024] VSCA 319, [112] (Priest, Taylor and Boyce JJA), citing R v Birks (1990) 19 NSWLR 677, 683–5 (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124, 134 [31] (Gaudron J), 147–8 [74], 148 [76]–[77], 149–50 [79]–[81] (McHugh J); [2002] HCA 46; Ali v The Queen (2005) 79 ALJR 662, 677 [99]–[100] (Callinan and Heydon JJ), 666 [23], 666–7 [25]–[26] (Hayne J); [2005] HCA 8; Nudd v The Queen (2006) 80 ALJR 614, 618–9 [7]–[9], 622 [20] (Gleeson CJ), 622 [24] (Gummow and Hayne JJ), 635 [100] (Kirby J), 645 [162] (Callinan and Heydon JJ); [2006] HCA 9; Seymour v The Queen (2006) 162 A Crim R 576, 581–2 [20]–[21] (Hunt JA); [2006] NSWCCA 206.
In the present case, there was a rational basis for defence counsel’s decision not to seek to exclude the applicant’s admission, namely that no caution was required prior to the admission being made. Any application thus had no prospects of success. Thus the applicant’s convictions cannot successfully be impugned on the basis that counsel ought to have sought to exclude the admission. It follows that there was no miscarriage of justice in the admission being adduced in evidence.
In light of this conclusion, it is unnecessary to consider whether, had the admission been excluded, the applicant’s conviction was inevitable.
As noted above, the applicant accepted that if the admission was properly admitted into evidence, then ground 2 fell away. Thus it is not necessary to consider ground 2.

Ground 3: Failure to give the Liberato direction

By ground 3 the applicant contended that the jury should have been, but were not, directed that, even if they did not accept the account given by the applicant to SC Kung after the caution had been administered, they must not convict the applicant unless satisfied that the Crown had proved its case beyond reasonable doubt (the Liberato direction).[35] He contended that the direction should have been given ‘because the case turned on a conflict of evidence between the key prosecution witnesses and the applicant’s account’ to SC Kung. He submitted that there was ‘a real risk that the jury had the impression that a reasonable doubt as to the applicant’s guilt would only arise if they accepted that part of the applicant’s account upon which he relied as truthful’.
[35]See Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 (‘Liberato’).
The applicant relied, in particular, on the fact that the jury asked a question that suggested that they considered their task was to choose between narratives. That question was as follows:
Based on the evidence given during the trial, are we allowed to infer a separate narrative to help draw a baseline conclusion?
After hearing from counsel, the judge responded to that question with an anti-speculation direction. Her Honour went on to explain to the jury, again, the difference between drawing an inference and speculation, giving some examples. In addition to hypothetical examples of the kind usually given in criminal trials, her Honour also gave an example from this matter, namely the presence of the knife sheath found near the scene.
The applicant contended in this Court that the anti-speculation direction given was insufficient to dispel the jury’s misconception about their task. He submitted that the failure of counsel to seek the Liberato direction does not preclude this Court intervening in circumstances where the direction was required to avoid a perceptible risk of the miscarriage of justice — and that this is such a case.[36] Ultimately, he contended the failure to give the Liberato direction resulted in a miscarriage of justice.
[36]In support of this proposition, the applicant cited De Silva v The Queen (2019) 268 CLR 57, 70 [35] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48 (‘De Silva’).
The respondent submitted that, given that the defence had not sought the Liberato direction, the trial judge could not give the direction unless there were substantial and compelling reasons for doing so — and there were no such reasons in the present case.[37] The respondent further submitted that there was no risk that the jury would reason, improperly, that an accused’s account can only give rise to a reasonable doubt if the jury believes that account, or that a preference for the evidence of a complainant over the accused’s account suffices to establish guilt. That was because that was not the way that the case was put in closing or in the judge’s charge.
(a)The prosecutor in closing emphasised that the prosecution bore the onus of proof. The prosecutor’s closing focused upon proof of the elements of the offence by reference to all of the evidence in the case.
(b)The trial judge’s charge to the jury also emphasised the prosecution’s burden of proof. In response to the jury question, her Honour said that the jury’s task was ‘to consider all the evidence that is before you to come to your factual conclusions as to what happened’ so that they could ‘decide whether the prosecution have established the elements of the offences’. The trial judge also dealt with the prosecution’s submissions on the applicant’s exculpatory account in terms of the prosecution’s onus: ‘The prosecution say you should be satisfied beyond reasonable doubt that [the applicant] used the knife to stab Mr Nejad’.

Consideration of ground 3

[37]Jury Directions Act 2015, ss 15–16 (‘Jury Directions Act’).

In our view there was no requirement for the judge to have given the Liberato direction in this case.
As Kiefel CJ, Bell, Gageler and Gordon JJ explained in De Silva v The Queen, the Liberato direction ‘serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt’.[38] Their Honours said that, subject to statute (such as the Jury Directions Act 2015), the Liberato direction ‘should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way’.[39]
[38](2019) 268 CLR 57, 63 [10] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[39]De Silva (2019) 268 CLR 57, 63 [10] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
The majority in De Silva also observed that the Liberato direction, as initially explained in the judgment of Brennan J in Liberato, ‘is addressed, in terms, to a trial at which there is conflicting sworn evidence’.[40] However, their Honours held that ‘it may, in some cases, be appropriate to give the Liberato direction notwithstanding that the accused’s conflicting version of events is not before the jury on oath’.[41] But their Honours made clear that such a direction is not always required.[42] In part that is because the risk that the jury will reason improperly ‘is more likely to arise in a trial in which the conflicting defence account is on oath’.[43] Whether the Liberato direction is required ‘will depend upon the issues and the conduct of the trial’.[44] If there has been no suggestion, either express or implied, that the jury’s determination turns on which of the conflicting prosecution and defence versions is to be believed, ‘there may be no need to expand on conventional directions as to the onus and standard of proof’.[45] In particular, if the judge’s directions ‘as a whole conveyed that the jury could not convict if the appellant’s exculpatory answers … left them with a reasonable doubt as to his guilt’, then there will be no substantial miscarriage of justice by reason of a failure to give the Liberato direction.[46]
[40](2019) 268 CLR 57, 63 [11] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[41]De Silva (2019) 268 CLR 57, 61 [4] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[42]De Silva (2019) 268 CLR 57, 64 [13] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[43]De Silva (2019) 268 CLR 57, 63 [11] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[44]De Silva (2019) 268 CLR 57, 64 [13] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[45]De Silva (2019) 268 CLR 57, 64 [13] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[46]De Silva (2019) 268 CLR 57, 61 [4], 68 [28] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.

Under s 15 of the Jury Directions Act, a judge ‘must not’ give the jury a direction that has not been required by counsel under s 12. However, under s 16 the trial judge must give a direction that has not been requested by counsel if the judge considers there are substantial and compelling reasons for doing so.[47] As already observed, no request was made for the Liberato direction. In this regard, the applicant contended in oral argument that the Liberato direction is a general direction, to which s 15 and 16 do not apply. The applicant submitted as follows:
The Liberato direction is in fact a general direction within the meaning of s 3 of the Jury Directions Act, because it is a matter that relates to the conduct of the trial and, particularly, when one turns to the definition of general directions in the Jury DirectionsAct sub-s(g). It refers to — so general directions means directions concerning matters relating to the conduct of trials generally, including — and then a series of examples are given. Sub-section (g) is the presumption of innocence and the burden and standard of proof, including what must be proved beyond reasonable doubt.
[47]Section 12 of the Jury Directions Act provides that, after matters in issue in a trial have been identified, the prosecution and defence counsel must each request the judge give, or not give, jury directions.
The applicant contended that the High Court’s decision in De Silva did not exclude such an understanding of the Liberato direction. He contended that the Liberato direction ‘fits much more comfortably within the meaning or the scope of general directions, being a matter relating to the conduct of the trial, than it does actually within matters about which counsel should request directions’.
We consider that the better view is that the Liberato direction is a particular direction, to which ss 15 and 16 of the Jury Directions Act apply, rather than a general direction within the meaning of s 3 of the Jury Directions Act.[48] However, it is not necessary for us to form a concluded view on this question. That is because, even if the direction is regarded as general in nature, we do not consider that the judge erred by failing to give the Liberato direction in this case.
[48]Paragraph (g) of the definition of ‘general directions’ in s 3 of the Jury Directions Act is ‘the presumption of innocence and the burden and standard of proof, including what must be proved beyond reasonable doubt’. Part 7 of the Jury Directions Act is entitled ‘General directions’. Division 1 of that Part is entitled ‘Proof beyond reasonable doubt’. The sections within Division 1 of Part 7 are concerned with what must be proved beyond reasonable doubt, the obligation on a trial judge to explain ‘proof beyond reasonable doubt’ and how that explanation must be given. In other words, the directions as to the presumption of innocence and the burden and standard of proof are ‘general’ because they must be given in every criminal trial in this State irrespective of whether there is in evidence a version of events (sworn or not) by the accused.
In particular, the judge’s directions, considered as a whole, clearly and effectively conveyed to the jury that the prosecution had to prove each element of the offence beyond a reasonable doubt.
The judge commenced her charge with some general directions. She told the jury that the applicant had a right not to give evidence, that he had a presumption of innocence, and that onus of proving an accused person’s guilt rests on the prosecution regardless of whether an accused person gives evidence. She also gave them instructions about the drawing of inferences. She told them that if they were drawing an inference about one of the elements of an offence, they could only draw that inference ‘if it is the only reasonable inference open’:
If you think about it, that is logical. The prosecution have to prove an element beyond reasonable doubt. If there are several reasonable inferences open then they will not have proved it beyond reasonable doubt.

Shortly afterwards, she said this:
You can only convict Mr Dastmozd if you are satisfied beyond reasonable doubt that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect, that relates to a charge. If there is another reasonable view of the facts which is consistent with his innocence then the prosecution will not have proved it beyond reasonable doubt.
After the judge’s charge had commenced, the jury asked their question about inferring a ‘separate narrative’. Her Honour responded to that question before turning to the elements of the offences. She directed the jury as follows:
Your task is to consider all the evidence that is before you to come to your factual conclusions as to what happened. The reason you’re doing that is so that you can consider and decide whether the prosecution have established the elements of the offences. That’s the task. That’s why you’re doing this fact finding. It’s to make factual conclusions as to what happened so that you can decide whether the elements have been established.
Now, you undertake that task without wondering about things that aren’t in evidence before you. That’s repeating what I’ve said several times about you being jurors, not investigators. This is a criminal trial. It’s for the lawyers to decide what’s relevant and what evidence to put before you. So your job is to decide this case only on the evidence that has been presented to you, not by speculating about things that aren’t in evidence.
In relation to the first charge, of attempted murder, the judge commenced with the first element of that offence, which is attempt to kill. She instructed the jury that ‘the first element the prosecution have to prove is that Mr Dastmozd attempted to kill Mr Nejad by stabbing with him a knife’. She explained the prosecution’s case on this issue as follows:
The prosecution say you should accept Mr Nejad’s evidence that Mr Dastmozd stabbed him several times when the two men were in the living area near the kitchen. Mr Nejad said there was only one knife involved, which Mr Dastmozd produced to him at the door of the bedroom and later stabbed him with. Mr Nejad denied that he caused the injuries to himself, or that they occurred in the course of a struggle for a knife that he had produced.
The prosecution say Mr Nejad was a credible and reliable witness whose evidence was supported by other evidence. Ms Seyedi also gave evidence that part of the attack took place in the living area. And Mr Nejad’s evidence of being stabbed there in the living area is also supported by the bloodstains in that area.
In relation to the applicant’s exculpatory statements to SC Kung at the scene, the judge directed the jury as follows:
The prosecution say that Mr Dastmozd’s account to the police, namely that what happened was only a fight-fight^[[49]] or boxing without any weapons, was simply absurd. Mr Dastmozd’s account is inconsistent with Mr Nejad's injuries and the bloodstaining evidence. Except for the alleged admission, that is the part of the conversation with Mr Kung where Mr Kung asked, ‘Did you stab the other guy?’ and he said, ‘Yeah’, apart from that part, the prosecution say you should totally reject Mr Dastmozd’s account to police.
The prosecution say you should be satisfied beyond reasonable doubt that Mr Dastmozd used the knife to stab Mr Nejad. He did not simply get hold of a knife and think about what he might do with it. He actually used it, and in terms of this first element of attempted murder, that means he went further than mere preparation, and that is what this element is about. …
The defence say you should not accept Mr Nejad’s account that Mr Dastmozd stabbed him. The defence say there are inconsistencies between what Mr Nejad and Ms Seyedi said. It was a stressful and dynamic situation, which may have affected the accuracy of their recollection about the events. …
And I have already told you about the defence response to the ‘yeah’ or ‘haha, yeah’ statement in the discussion with Senior Constable Kung. [The defence] suggests that was nonresponsive, querying, disjointed, and it is not an admission of any sort. The defence rely on the other parts of Mr Dastmozd’s conversation where he said, ‘It was only a fistfight. Just boxing. No weapons involved.’ The defence say you cannot be satisfied beyond reasonable doubt that Mr Dastmozd stabbed Mr Nejad at all ….
Just summing up about what this issue, this first issue, is about: if, after considering all the evidence, you are satisfied that Mr Dastmozd stabbed Mr Nejad with the knife, you would have no trouble finding that his actions had gone beyond mere preparation.
[49]It is possible that the reference to ‘fight-fight’ is a mistranscription of ‘fist-fight’.
The judge then directed the jury in relation to the second element of the offence of attempted murder, namely deliberate acts. The question in issue here (Question 2) was ‘Did Mr Dastmozd stab Mr Nejad 2 deliberately?’. Her Honour said as follows:
[T]he prosecution say, relying on the arguments I put earlier, that Mr Dastmozd most certainly did stab Mr Nejad deliberately. He set out to do it and he did do it, and there was nothing accidental about it. It was quite deliberate.
The defence deny that, the defence say the prosecution cannot prove that Mr Nejad was not stabbed in the course of an accident, in a tussle over the knife. So you need to consider, really, the same arguments but with a slightly different slant to them. But it is the same arguments and the same evidence that you were considering with number 1.
Once again, I have given you a decision trail if ‘yes’. So if the prosecution satisfy you that Mr Dastmozd stabbed him deliberately, it was not accidental, you would go to Question 3. If the prosecution have not satisfied you that the answer is ‘yes’, Mr Dastmozd is not guilty of attempted murder then you would not go on to consider any charge.
The judge then went on to direct the jury in relation to the third element of attempted murder, namely the applicant’s intention. Her Honour’s direction on this element did not touch upon the applicant’s conversation with SC Kung; it focused on Ms Seyedi’s evidence about the applicant’s statements as he was engaged in stabbing Mr Nejad, and on Ms Mecca’s evidence about what the applicant said to her afterwards.
Ultimately, of course, the jury acquitted the applicant of attempted murder.
In relation to the charge of intentionally causing serious injury, which was the charge of which the applicant was convicted, the judge first instructed the jury on the ‘serious injury element’. She then turned to the question of causation:
The prosecution say Mr Dastmozd caused the serious injury by stabbing him repeatedly with a knife.
The defence say the prosecution cannot prove beyond reasonable doubt Mr Dastmozd caused the injuries. I have already summarised the evidence and the arguments about it so I am not going to repeat it. It is the same evidence and arguments that applied when we were considering some of the elements for attempted murder. The prosecution say you should answer Question 2 yes, that Mr Dastmozd caused that serious injury. You should be satisfied of that beyond reasonable doubt say the prosecution.
The defence say you cannot be satisfied beyond reasonable doubt that Mr Dastmozd is the person who caused the injuries and that you would answer it no.
As is apparent, the judge gave the jury repeated and correct directions concerning the onus and standard of proof. Nothing in the judge’s summary of the defence and prosecution cases, or in the way the judge summed up, suggests that the jury might have been left with the impression that their verdicts turned on a choice between the prosecution evidence and the applicant’s account to SC Kung. Indeed, the prosecution urged the jury to accept one part of the applicant’s account to SC Kung, namely his admission. The focus of defence counsel’s address was on the suggested incapacity of the prosecution case to support a finding of guilt beyond reasonable doubt, because it could not exclude the possibility that Mr Nejad had been injured by accident in the course of a struggle. In these circumstances, we do not perceive any risk that the jury would have reasoned improperly so as to require the Liberato direction. The jury’s question about inferring an ‘alternative narrative’ does not alter our conclusion.
It is also relevant to observe, again, that defence counsel appears not to have perceived any such risk. There was no request for the Liberato direction. As the plurality explained in De Silva, ‘[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice’.[50] However, the absence of an application for the Liberato direction may ‘tend against finding that that risk was present’.[51]
[50](2019) 268 CLR 57, 70 [35] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
[51]De Silva (2019) 268 CLR 57, 70 [35] (Kiefel CJ, Bell, Gageler and Gordon JJ); [2019] HCA 48.
In our view the judge’s charge made clear the necessity that the jury be satisfied beyond reasonable doubt that the prosecution had proved each element of each offence before they could convict the applicant. The fact that the jury acquitted the applicant on charge 1 (attempted murder), but convicted him on charge 2 (intentionally causing serious injury), supports the conclusion that they understood the task they were required to perform. Thus in our view the trial did not miscarry by reason of the omission of the Liberato direction.

Extension of time

The applicant required an extension of time to file his application for leave to appeal approximately one year out of time. The respondent opposed the extension of time because of the length of time taken to file the application and because the proposed grounds of appeal do not have merit.
The Court has a ‘broad discretion’ in determining an application for extension of time.[52] The exercise of the discretion whether to grant an extension of time ‘must always be informed by what the interests of justice require in the particular circumstances of the case’.[53] The length of the delay and reasons for it, the prospects of success should the extension of time be granted, and the reasons for the delay ‘are relevant (but not necessarily decisive)’.[54]
[52]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA), citing Jopar v The Queen (2013) 44 VR 695, 707 [60] (Priest JA); [2013] VSCA 83 (‘Madafferi’).
[53]Madafferi [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA), citing Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.
[54]Madafferi [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
The applicant contended that the delay was not related to anything other than the difficulties the applicant had obtaining funding and representation, and provided an affidavit from his solicitor in support. The affidavit stated that, at the time the applicant first contacted his solicitors in early June 2023, he had made an application to Victoria Legal Aid for funding but this had been refused. The decision to refuse funding was affirmed on 21 June 2023 and the applicant then sought assistance from a family friend, who made a payment to his solicitors by 11 July 2023.
The affidavit goes on to say that, due to no fault of the applicant, his solicitors encountered difficulties engaging counsel and, when counsel was engaged, various delays ensued that were not of the applicant’s making.
Even though the appeal itself fails, the applicant’s proposed grounds of appeal were reasonably arguable and raised issues that warranted appellate scrutiny. This was not a case where the applicant’s grounds had no prospect of success. Furthermore, the delay was not due to the applicant’s own actions. Having regard to all the circumstances, we would grant the application for an extension of time.

Conclusion

For these reasons, we would grant the applicant’s application for an extension of time and grant leave to appeal, but dismiss the appeal.

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[2025] VSCA 138

23 June 2025