Kyle Sirous Zandipour v The Queen - [2017] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0177

KYLE SIROUS ZANDIPOUR	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	WARREN CJ, WEINBERG and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2017
DATE OF JUDGMENT:	7 July 2017	1^st Revision: 14 July 2017, paragraph [73]
MEDIUM NEUTRAL CITATION:	[2017] VSCA 179
JUDGMENT APPEALED FROM:	[2016] VSC 387 (Emerton J)

---

CRIMINAL LAW – Conviction – Murder – Applicant attacked victim late at night outside McDonald’s restaurant – Applicant hurled victim head-first to ground and then repeatedly kicked and stomped on head and neck – Whether trial judge erred by improperly directing jury regarding need for unanimity as regards act or acts causing death – Whether failure to provide complete transcript of charge resulted in substantial miscarriage of justice –Whether failure of trial counsel to put rarity of injury to expert resulted in substantial miscarriage of justice – Whether trial judge erred by improperly directing jury regarding incriminating conduct – Whether verdict unsafe or unsatisfactory – Leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Murder – Applicant sentenced to twenty years’ imprisonment with non-parole period of 16 years – Whether sentence manifestly excessive – Brutal and senseless attack – Sentence within range – Leave to appeal against sentence refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J F Desmond with Mr R F Edney	Defteros Lawyers
For the Crown	Mr C B Boyce SC with Ms E H Ruddle	Mr J Cain, Solicitor for Public Prosecutions

WARREN CJ
WEINBERG JA
KAYE JA:

The applicant stood trial on a charge of having, in the early hours of Saturday, 18 October 2014, murdered one Joshua Hardy in the course of a violent attack upon him. He was convicted of that offence, and sentenced to a term of 20 years’ imprisonment. A non-parole period of 16 years was fixed. He now seeks leave to appeal against both conviction and sentence.

Background facts

On the night in question, the applicant and a friend, Matthew Bell, had been drinking and playing video games for some time, at the applicant’s apartment, on St Kilda Road. There was no suggestion, however, that the applicant was inebriated.

Shortly before 1:00 am on the morning of the fatal attack, the applicant and Bell went to the nearby McDonald’s on St Kilda Road to have a meal. They bought some food, and then went outside, where they consumed their meals whilst leaning against one of the tables.

Earlier that evening, Hardy had attended a valedictory dinner at Trinity College, at the University of Melbourne. He had then gone on to a 21^st birthday party, held at a venue in Fitzroy Street, St Kilda. He was clearly inebriated at the party,[1] so much so that two of his friends had put him in a taxi, with firm instructions that he was to be taken directly home, to Trinity College.
[1]An autopsy revealed that Hardy had a blood alcohol reading of 0.27 at…

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.

Keep reading for free

Create a free CaseChat account to read Kyle Sirous Zandipour v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSCA 179
Decision Date: 7 July 2017

CaseChat Overview and Summary

The case of Kyle Sirous Zandipour v The Queen involves the applicant's appeal against both his conviction and sentence for murder. Zandipour attacked the victim outside a McDonald’s restaurant, striking the victim's head against the ground and then repeatedly kicking and stomping on the head and neck, resulting in the victim's death. Zandipour was convicted of murder and sentenced to 20 years' imprisonment with a non-parole period of 16 years.

The central legal issues in this case included whether the trial judge had improperly directed the jury regarding the requirement for unanimity concerning the act or acts causing death, and whether the failure to provide a complete transcript of the charge resulted in a substantial miscarriage of justice. Additionally, the appeal questioned whether the trial counsel's failure to present the rarity of the injury to an expert resulted in a substantial miscarriage of justice, and whether the trial judge had improperly directed the jury on incriminating conduct. Finally, the appeal considered whether the verdict was unsafe or unsatisfactory, and whether the sentence was manifestly excessive.

The Court found that the trial judge did not err in his directions to the jury, and that the failure to provide a complete transcript of the charge did not result in a substantial miscarriage of justice. The Court also determined that the trial counsel's omission did not affect the outcome and that the jury's verdict was both safe and satisfactory. Regarding the sentence, the Court held that it was within the appropriate range given the brutality and senselessness of the attack, and thus was not manifestly excessive. Consequently, leave to appeal both the conviction and the sentence was refused.

The final orders of the court were to refuse leave to appeal against both the conviction and the sentence, thereby upholding the trial court's decision in its entirety.

Orders