R v Zandipour (Ruling No.1)
[2016] VSC 278
•3 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0073
| THE QUEEN |
| v |
| KYLE ZANDIPOUR |
---
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 February 2016 |
DATE OF RULING: | 3 February 2016 |
CASE MAY BE CITED AS: | R v Zandipour (Ruling No.1) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 278 |
---
CRIMINAL LAW – Pre-trial ruling – Sections 90 and 137 of the Evidence Act 2008 - Admissibility of admissions made during record of police interview – Whether circumstances in which admissions were obtained unfair to the accused – Whether questions asked during record of police interview amounted to cross examination.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC | Office of Public Prosecutions |
| For the Accused | Mr Remy Van de Wiel QC | Defteros Lawyers |
HIS HONOUR:
The accused man Kyle Zandipour is charged with the murder of Joshua Hardy on 18 October 2014. The death arose from an altercation outside a fast food café in St Kilda Road, Prahran.
The accused is alleged to have forcibly slung the deceased to the ground and then kicked him to the head three times and stomped on his head once.
As I understand it, the issues in the trial will relate to the cause of death and the intention, or lack thereof, of the accused man at the time these incidents occurred.
Later on the day of the death of Mr Hardy, the accused was interviewed by police and some issues have arisen in relation to aspects of that interview. I will deal with them in turn
Firstly, questions 303-307.
These questions are in the following terms:
Q 303It wouldn’t have taken much to put him to the ground. Would you agree with that or not?
A I can’t agree with that I don’t know.
Q 304Particularly in the state as you described, he couldn’t – he was lucky to stand up. He’s walking from the left to right of the footpath, struggling to turn around properly as you described. Are you able to comment – are you able to say anything about that?
AI can’t comment on that
Q 305From you observations, I mean it wouldn’t take much for him to be put to the ground.
A Are you asking me to speculate on that or…
Q 306No, no, just if you can’t comment on that…
A I’m not sure, no…
Q 307All right
Mr Van de Wiel has submitted that this questioning is effectively cross examination of the accused and has no real probative value. To the extent that it is implied in the submission that s 90 of the Evidence Act 2008 is engaged and that there is an unfairness to the accused or that there was a prejudicial effect that outweighed the probative value under s 137 of the Act, I would not agree. The accused is being asked to comment on the action he could have taken, given that he had claimed to have felt intimidated by the deceased. The evidence is relevant and it was not submitted otherwise. I will admit it.
Secondly, questions 356-358:
These questions are in the following terms:
Q 356Is that the same person you said…
A … it’s so blurry.
Q 357… you described? Apart from the face features, and you can see the clothing clearly…
AI cannot confirm that, I’m sorry.
Q 358Are you able to say that’s the same person that you described earlier on you had the argument with?
AI can’t see it
In these questions the accused is being shown a video of the incident and is expressing difficulty in identifying what is depicted. At this stage I cannot see any reason to exclude these questions. They are being asked for a legitimate purpose. The answers may have some significance as the trial develops. There is nothing prejudicial or irrelevant about them.
Thirdly, question 389:
Q 389You couldn’t get any more – more picture than that. I’ll just show you again. Do you agree you’re at the entrance to McDonald’s, which is probably a good five metres, probably about two and a half of those lounges?
A (NO AUDIBLE REPLY)
As with 356-358, I see no reason to exclude this question and response of the accused. Albeit that it is not recorded in the transcript, his reaction on the video can be observed, and the jury will make what they will of that.
Fourthly, questions 404-411:
Q 404O.K, all right. Did you at any stage make an- take – after being informed that he’s on the ground and was dead by one of the females on the median strip…
A No one informed me that.
Q 405Well, would you agree that you said to this person, you’ve replied, or one of you did, Matthew or yourself, “He tried – he started – he tried to trip us.” And don’t quote me on those exact words but it is along the lines that you were saying – you were defending yourself against – against his actions?
A To the guy in the pink shirt.
Q 406To the female and while the – yeah, where the guy with the pink shirt was, there was also a female there.
A Yes
Q 407Which one of those two females, Do you recall that conversation?
A Yeah, the – what I said to them?
Q 408Yeah
A Yeah
Q 409What did you say?
A “I – we didn’t do anything. He was aggressive towards us”.
Q 410Yeah, that’s what I’m talking about
A Yeah
Q 411And that – when you’ve been told what had happened that he was on the ground unconscious and they believed was dead, why didn’t you return?
AI don’t- didn’t listen to them. I didn’t – didn’t listen to that. I was saying what I was saying. I didn’t listen to them.
I indicated during argument to Mr Van de Weil that I would conclude these answers were relevant and admissible as they went to the question of, among other things, the consistency of the accused position that he was unaware of the condition of the deceased on the ground. I am unable to see any prejudice or unfairness in them.
Next, question 421:
Q 421O.K. You grabbed him violently. You violently throw – you drop your knees and take him over – you sort of sling him to the ground. A reasonable person would think that, especially on concrete ground, that that could cause a serious injury or death.
A I don’t believe so.
As indicated during argument, I will exclude this question and answer on the basis that, in my opinion, there is an unfairness to the accused in that the questioner expressed, or appeared to express, his own view about what happened which he then puts to the accused in the form of a question. The questioner seems to be wanting to contradict the answer that the accused gave to question 420. The accused could simply have been asked whether or not he agreed that a reasonable person would have thought that serious injury could have resulted. In the circumstances, as I have indicated, I will exclude question 421 and its answer.
Finally, questions 439-442:
Q 439What would a normal person think if you kick someone in the head what it could result in?
A I don’t know, don’t know how to answer that question.
Q 440Would you think he’d get just a cut to the head, no injuries?
A Depends on a lot of factors
Q 441If I was to put it to you that it’d cause severe serious injury and in this case someone’s death.
A Mm
Q 442Do you think it’s most likely that would occur?
AI don’t know how to answer that question
In this trial a significant issue will be whether, as the prosecution will assert, the accused did actually kick the deceased to the head three times and then stomp on his head in addition to those actions. The questions commencing at 439 are, in my opinion, predicated on the basis that such an event happened. Whilst nowhere in the record of interview does the accused admit that he did those things, the CCTV vision of the incident (which I have watched) and the medical evidence may well support the conclusion that he did. To ask him about his perception of the consequences was, I think, legitimate and in the way the questions were asked occasions no unfairness to the accused. I have concluded that I should admit these questions and answers.
0
0
0