The Crown case against Goldman
42 For about 18 months prior to July 2002 Goldman and K, with another two criminals called Moroz and Mendelis had committed a number of burglaries, usually of kitchen appliances, from shops, factories and houses including houses in the course of construction. K became concerned when Goldman and another of their accomplices began discussing engaging in a higher level of criminal activity including the use of weapons. When he, Goldman, and Moroz were arrested by the Police Tactical Response Squad on 5 July 2002 he told the police he was willing to assist them with their investigations into the activities of Goldman and the others. As a consequence, on 9 July K became a registered police informer.
43 On the same day Goldman and K met at a restaurant in Glenhuntly Road, Elwood. It was K's understanding that just prior to that meeting Goldman had had a meeting with one Radev, another notorious violent criminal, who is now deceased.
44 On 10 July Goldman phoned K and asked him to come to his home that afternoon. Prior to going there K was fitted by police with a covert digital recording device.
45 At about 1.30 p.m. K parked his car near Goldman's flat at 96 Highett Road, Hampton. He phoned police and told them he was about to enter the flat and, after switching on his concealed recording device, walked up to the front door. He was admitted by Goldman and had a conversation with him in Russian which was recorded on the recording device.
46 During this conversation, without warning, Goldman shot K in the left side of the chest with a gun which was wrapped in a towel. K fell to the floor. He pushed over a table to use as a shield. Goldman then shot at him again. As these events occurred Goldman demanded that K tell him who was talking to the police about their activities. K then moved towards a window whereupon he heard the gun click twice without discharging. He was able to get out the front door and on to the nature strip outside Goldman's flat before he fell to the ground. Goldman followed him, with the gun still wrapped in the towel. A witness heard one gunshot and then saw Goldman crouching over K. He heard two more shots at which time Goldman had the gun about 18 inches away from K's body. Goldman then walked back towards his flat.
47 The recording device which K was wearing was set up in such a way that loud noises such as gunshots would create transient gaps in an otherwise continuous recording. An expert called at the trial testified that the recording had three "transients" on it consistent with three gunshots having occurred whilst the device was operating.
48 A number of witnesses described more or less the same sequence of events. K said that as he made his way to the nature strip Goldman fired a shot at him which missed. He then reloaded the weapon, pointed it at K's face and fired another shot from one to one and a half metres away. This bullet hit his face.
49 Police were called and arrived shortly after. Goldman approached them and said that he had shot K. He was arrested and taken to Moorabbin Police Station where six rounds of .32 calibre ammunition were found in his pocket. A .32 calibre pistol was found by police on Goldman's kitchen floor. They also found two unfired cartridges and a bullet in the floor. A fired cartridge case was found in front of the kitchen sink.
50 A medical examination of K revealed two bullet wounds to his face, and a third bullet wound to his left upper abdomen. His injuries were life threatening.
Goldman's defence
51 At his trial Goldman gave evidence. He denied having committed crimes with K and denied planning to commit crimes with guns or discussing such plans with K. He denied ownership of the weapon found by police at his flat.
52 Goldman said that about a month prior to July 2002 K had asked him if he knew Radev. Goldman said that K told him that Radev was looking for him, K, in relation to a burglary committed on someone called Illias, that he was frightened of Radev and wanted Goldman's help to negotiate with him. Goldman said he arranged a meeting at a café in St. Kilda about four weeks before the shooting which Radev attended with him and K. He said that at that meeting Radev said that if the goods stolen from Illias were returned the matter would be at an end. Goldman said that K told Radev that the stolen goods had been sold and could not be returned. He asked Radev to apologise to Illias for him and said that he would try to rectify the situation as soon as possible.
53 Goldman said in his evidence that the day before the shooting he had a meeting with Radev who told him that K had lied to them about the stolen goods.
54 Goldman next recounted a meeting with K at a café in Prahran about 7.00 o'clock on the night before the shooting where he expressed anger at K. He said that on parting from K that evening he said he wanted nothing more to do with him.
55 Goldman said that at about 9.00 a.m. on the morning of the shooting he again met Radev who asked him to arrange another meeting with K. In answer to a question from Goldman as to what he, Radev, was going to do with K, Goldman said Radev told him he just wanted "to see K's eyes".
56 Goldman said he decided to arrange a meeting between K and Radev at his flat. This was arranged and some time after 11.00 a.m. Radev arrived at Goldman's flat. He stayed a short time, left for about 20 or 30 minutes and returned with a bag containing white powder, some of which he ingested from a plate. He took a number of phone calls and ingested more white powder. He produced a gun and bullets, cleaned the gun and loaded and unloaded it a number of times.
57 In due course K phoned Goldman to say he was about to arrive whereupon Radev produced an automatic rifle. Goldman said that Radev said to him: "... give him one in the head and I get rid of the body. Come on do it, come on do it!" Goldman said that he then became like a remote controlled robot and did as Radev wanted. As K knocked at the door, Radev jumped behind a sliding door between the kitchen and the loungeroom and closed it. Goldman said he could still see half of Radev's face and the barrel of the rifle from the kitchen.
58 When K entered the flat Goldman said the pistol Radev had been cleaning was still on the kitchen table. Goldman grabbed it and fired it in K's direction. He said he was not acting consciously. He said he tried not to hit K in the head or upper body and shot him in the stomach instead. He caught sight of Radev whilst they were still in the kitchen.
59 Goldman said that after K escaped from the flat Radev came out and said: "go and find him because you know what is next going to happen to you and I ... your family and you". He said Radev had a "maniac face".
60 Goldman said that he decided to go outside and attract as many people as possible. He saw that K was on the nature strip and that Radev was at a window of the flat. He said he discharged the pistol but, deliberately, aimed away from K's head. He said he heard Radev say "go, cunt, quickly and finish him. I fuck you. I fuck your family".
61 When Goldman got back to the flat he said Radev was not there. He telephoned the police but did not give his surname. He saw about a dozen bullets in the loungeroom and put as many as he could in his pocket. He dropped two or three on the kitchen floor.
62 Goldman said that he discharged the firearm a total of four times and that he had no trouble with its operation. He did not recall reloading it and it did not jam.
63 Goldman's defence was that he never intended to kill K and that the shots he fired were fired because of his fear of Radev. Thus he raised two issues with which the Crown had to contend to obtain a verdict of conviction. The first is that of the specific intent for attempted murder, which is an intention to kill. The second is that of duress; the question as to whether the accused was acting of his own volition when he shot K or because he feared the consequences of a threat made to him by Radev.
64 Goldman now appeals to this Court on two grounds, each of which concern the directions given to the jury by the trial judge.
65 Before considering the grounds of appeal it is necessary to note that the issue of whether the Crown must prove that an accused acted other than under duress in a trial for attempted murder was not debated on this application. The trial judge had ruled that duress was a defence to a charge of attempted murder and had given extensive reasons for that ruling.[29] In doing so his Honour had refused to follow the House of Lords decision in R v Gotts.[30] As both the applicant and the Crown agreed to argue this application on the basis that the trial judge's ruling was correct there is no occasion to consider it or R v Gotts in this judgment.
66 It should also be noted that whatever the common law position might have been, s 9AG of the Crimes Act 1958 now specifically applies the defence of duress to both murder and attempted murder.[31]
Ground 1
67 The applicant's first ground of appeal is that the verdict is afflicted with latent duplicity or uncertainty given that the count of attempted murder was left to the jury in a way which allowed the commission of two or more separate offences to amount to proof of that count.
68 The gravamen of the applicant's complaint is that as the Crown case was that as he fired or attempted to fire the gun a number of times at K, both inside his apartment and, later, in the street, there was uncertainty as to which act or acts the verdict of the jury related to. It is possible, argued the applicant, that there was in fact no unanimity among the members of the jury as to which act or acts constituted the actus reus of the crime of which they found him guilty. The issue is complicated on the particular facts of this case, not only because there is a temporal and spatial separation between the various acts of firing or attempting to fire the gun, but to convict, the jury would have had to exclude duress in respect of the particular act or acts which they were satisfied Goldman performed with an intention to kill.
69 In the course of his charge the trial judge referred to the issue of intent a number of times. Early in the charge he referred to the question of Goldman's intent on "... each of the occasions that he discharged the firearm in the direction of K". He said that one of the issues the jury must resolve was the accused's intention at the time he discharged the gun on "one of those occasions".
70 A little later he spoke of intent in the context of drawing inferences but did not differentiate between the various shots. Later again he spoke of the issue of intent as being whether or not Goldman had the necessary intent at the time that he performed "those acts". Shortly after that instruction his Honour said: "... the question is what was the intention which accompanied the performing of the act?"
71 The trial judge's principal direction on the issue of intent was in the following terms: