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Dastmozd v The King

Dastmozd v The King

Case [2025] VSCA 138 23 June 2025

Appeal

Admissibility of Evidence

Legal Privilege

Criminal Law

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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…

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 Dastmozd v The King

Details

AGLC: Dastmozd v The King [2025] VSCA 138
Case: [2025] VSCA 138
Decision Date: 23 June 2025

CaseChat Overview and Summary

In the matter of Dastmozd v The King, the appellant sought to appeal his conviction, contending that a substantial miscarriage of justice had occurred. The appellant made an admission to the police before being cautioned, and he argued that his trial counsel should have objected to the admission being used as evidence. He also claimed that he should not be bound by the conduct of his trial counsel and that the jury should have been directed in line with the Liberato direction. The Court of Appeal was required to determine whether the trial counsel should have objected to the admission, whether the appellant was bound by the conduct of his trial counsel, and whether the Liberato direction should have been given to the jury.

The court examined the legal principles surrounding the use of admissions made before cautioning and whether they should be admitted as evidence. The court considered the provisions of the Evidence Act 2008, including sections 138(1)(a) and 139(5), and the Crimes Act 1958. The court also examined the authorities of Saricayir v The Queen, Frendo v The Queen, Liberato v The Queen, and De Silva v The Queen. The court found that the appellant's admission was made before he was cautioned and that it was not in the company of an investigating official for the purpose of being questioned under section 139(5) of the Evidence Act 2008. The court held that the appellant was not in custody suspected of having committed an offence under section 464A of the Crimes Act 1958. The court concluded that the trial counsel's decision not to object to the admission was not unreasonable and that the appellant was bound by the conduct of his trial counsel. The court also held that there was no need for a Liberato direction to be given to the jury.

The appeal was dismissed, and the conviction was upheld. The court found that there was no substantial miscarriage of justice and that the appellant's arguments were not persuasive. The court noted that the jury was properly directed and that the evidence was sufficient to support the conviction. The court also found that the admission did not play a significant role in the conviction and that there was no reasonable possibility that the outcome would have been different if the admission had not been admitted. The court held that the appellant's arguments were speculative and that there was no basis for granting leave to appeal. The final orders of the court were that the appeal be dismissed and that the conviction be upheld.

Orders