SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0177
| KYLE SIROUS ZANDIPOUR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WARREN CJ, WEINBERG and KAYE JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 14 June 2017 | |
| DATE OF JUDGMENT: | 7 July 2017 | 1st Revision: 14 July 2017, paragraph [73] |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 179 | |
| JUDGMENT APPEALED FROM: | [2016] VSC 387 (Emerton J) | |
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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.
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| 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 21st 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…
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- Case
- [2017] VSCA 179
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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