R v Goldman [2007] VSCA 25

CRIMINAL LAW - Sentence - Whether a sentence of 14 years' imprisonment with a non-parole period of 11 years manifestly excessive - Whether excessive weight given to aggravating feature that victim police informer - application refused.

1 We have had the advantage of reading in draft the reasons for judgment of Bongiorno AJA. We gratefully adopt his Honour's summary of the facts and issues.

2 In relation to the first ground of the application for leave to appeal against conviction, we respectfully agree with Bongiorno AJA that this ground fails, for the reasons which his Honour gives. With respect to his Honour, however, we consider that the second ground of the application - concerning a part of the jury direction on duress - also fails. Our reasons are as follows.

The duress direction

3 Bongiorno AJA has succinctly summarised Goldman's account of how he came to shoot K. According to Goldman, he was in fear of his life, and was acting under orders from Radev, when he shot K in the flat. The subsequent shooting, outside the flat, was also said to have been done at Radev's command, with an accompanying threat to Goldman and his family should the order not be obeyed.

4 This ground of appeal concerns part of the trial Judge's lengthy instructions to the jury concerning the defence of duress. Having explained that the prosecution must disprove the duress claim beyond reasonable doubt, his Honour identified the elements of the defence, which he then summarised as follows:

"The questions you must ask yourself then are these: (1) did the accused do the act or acts charged against him under threat that death or grievous bodily harm would be inflicted unlawfully on him or members of his family if he failed to do the act; (2) the circumstances were such that a person of ordinary firmness of mind, that is, a person of ordinary courage in the accused's situation could have been compelled by the threats to so conduct himself on each occasion that you find he fired the pistol or attempted to fire the pistol with the requisite intent; (3) that the threat was present and continuing, imminent and impending on each occasion that he fired the pistol with the requisite intent; (4) that he reasonably feared that the threat would be carried out; (5) that the accused was in fact compelled by the threats at the time that he fired the pistol with the requisite intent; and (6) that the accused had no means with safety to himself to extricate himself from the situation and prevent the carrying out of the threats." [1]

5 Then followed the impugned passage, which was in these terms:

"When considering the evidence in relation to this issue, you should use your common sense and your knowledge of the world to consider the facts with care and discern. Duress can be an easy answer for those who can devise no innocent explanation for their conduct or for those who readily could have avoided the dominance of threats or for those who allow themselves to be at the disposal or sway of some gangster. It is for this reason that you should look at the evidence relating to duress with great care and scrutiny."[2]

6 It was submitted by Mr Croucher for Goldman that this part of the direction was "fundamentally wrong and apt to give rise to a miscarriage of justice," for the following reasons:

(a) the direction had the effect of treating the applicant as a suspect witness in his own case;

(b) to say that duress "can be an easy answer..." implied judicial endorsement of the prosecution's argument that the duress defence was manufactured;

(c) the direction that duress "can be an easy answer ... for those who allow themselves to be at the disposal or sway of some gangster" directly undermined the very account which the applicant had given viz that Radev was "a heavy gangster under whose control the applicant acted out of fear".

7 A direction in almost identical terms was the subject of a ground of appeal in the recent case of R v Franco.[3] Together with Buchanan JA, we rejected that ground, for the reasons set out in the judgment of Maxwell P.[4] (That decision was handed down after argument on the present appeal had been completed). In our view, the ground also fails in the present appeal, for very similar reasons.

8 Here, as in Franco, it was contended that the direction on duress ran counter to the reasoning of the High Court in Robinson v The Queen (No 2).[5] As explained in Franco, what the decision in Robinson prohibits is a direction to the jury to evaluate the accused's evidence on the basis of his/her interest in the outcome of the trial.[6] As Franco also pointed out,[7] Robinson has been applied in a series of subsequent appellate decisions, all of which confirm that the vice to which the Robinson prohibition is directed is the discrediting of the accused's evidence by reference to his/her having an interest in the outcome of the case. What must be avoided, as the High Court made clear in Robinson itself, is any direction which has the effect -

"that the evidence of the [accused] had to be scrutinized more carefully than the evidence of any other witness... for no reason other than that he was the accused."[8]

9 In our view, the impugned direction in the present case was quite different, both in its content and in its effect, from that given in Robinson. As in Franco, the direction made no mention of, nor any implied reference to, the interest of the applicant in the outcome of the case. Nor did the direction single out, expressly or impliedly, the evidence of the accused. Instead, the jury was directed to scrutinise "the evidence relating to duress", that is, all of the evidence relevant to that issue. Of course, only Goldman had given evidence about the presence of Radev and his threats, but there was a deal of other evidence directly relevant to the duress issue which the jury was bound to consider in evaluating Goldman's account. First and foremost, there was the sound recording of the events in the flat, recorded on the covert device with which K had been fitted. Secondly, there was the evidence of independent witnesses who had observed Goldman's pursuit of K outside the flat.

10 In short, what the direction required the jury to do was to examine the quality and cogency of the duress evidence as a whole. The direction did not single out the applicant as a witness, less still did it require special scrutiny of his evidence merely because he was the accused.

11 Considered as a whole, the evidence relating to duress was most unconvincing. Goldman's own account was inherently improbable, as we shall explain, but the contemporaneous sound recording made the defence virtually untenable. First, there was nothing on the sound recording to suggest that Radev was present. If he was indeed there, he must have remained silent throughout the entire lengthy exchange between Goldman and K, and even when K made his escape. But, most damagingly for Goldman, the terms of his verbal exchanges with K were simply incapable of any satisfactory explanation consistent with his version of events. This point can be properly understood only by reference to the full transcript as it was before the jury.

12 The relevant transcript begins immediately after Goldman had shot K for the first time.

"K Misha, what for?!!!

Misha, this is not my fault!

G Whose fault is it then?

K I didn't do it! Misha, what are you doing?!!! I didn't do it, I swear! Misha, I didn't do it!

G On the ground! On the ground!

K Misha, I didn't do it!

G Tell me everything.

K Misha, I didn't do it!

G Tell me, bastard. Who did it?

K Don't shoot! I didn't do it!

G Tell me! Who then? I am going to shoot.

K Misha, I'll tell you. I didn't do it!

G Tell me, bastard, tell me, as you are sitting there now, bloody bastard!

K Misha, I didn't do it, I swear!

G Tell me, bastard.

K Misha, I didn't do it!

G You'd better fucking tell me!

K Misha, I didn't do it, I didn't! Please stop!

G Who did it, bastard?

K Misha, wait.

G Who fucking let me down?

K Misha, I swear, I didn't do it! I swear by my mother!

G Tell me.

K Misha, I didn't do it, I don't know.

G Tell me, bastard. [inaudible - 1 or 2 words]. I am going to fucking shoot.

K Misha, I... Misha.

G Tell me, I said.

K Misha!

G Tell me, bastard.

K Don't shoot!

G Tell me.

K Don't shoot. Please.

G Tell me.

K I'll tell you. Don't shoot.

G Tell me.

K I didn't do it, Misha.

G Who did it then? Who did it, bastard?!!!

K Misha, I didn't do it.

G Who then?

K Misha, I swear!

G Who? Tell me, bastard!

K Misha, if I tell you, will you believe me?

G Who did it?

K Think yourself.

G Who?!

K Well, you think yourself.

G Vasya? Who?

K Misha...

G Tell me! Who?

K I didn't do it.

G Who then?

K Misha, I was the one who suffered more than anyone else. Why do you think that I did it?

G Who then? Why is this fucking happening?

K Misha, I didn't do it, I swear! Don't shoot, I didn't do it!

G Who did it then?!

K Misha! I don't...

G What?

K I don't know. I am not sure, Misha.

G Who did it then?

K I don't know.

G Wait a minute, you've been saying things against me all the time.

K Are you stupid?! Why would I say something against you?

G I am not stupid.

K Misha, I haven't said anything against you.

G If I was stupid...

K Misha, I swear to you, I haven't said a word about you. Misha, I... no... Don't shoot. I am not going... Misha, this is not my fault. I haven't done anything.

G Tell me, bastard!

K I didn't do it.

G Tell me, bastard! I am going to fucking shoot you dead!

K I didn't do it!

G I am going to fucking shoot! Stop, you bastard!

K Misha, I am not... those matters.

G What matters, bastard?

K None of those matters.

G Fucking bastard!

K Misha, you are wrong! I swear, you are wrong.

G [inaudible]

K You are wrong. Misha!

G Stop!

K Misha, it's not my fault! Misha, I didn't do it, you are making a mistake. I didn't do it, Misha! I didn't, Misha. I swear by my mother. I didn't do it."

13 Goldman's explanation for the presence of Radev in the flat was that Radev was angry with K. According to Goldman, K had lied to Radev about what had happened to certain goods stolen from the father of a friend of Radev's. K had told Radev that the goods had been sold, but (according to Goldman) Radev had subsequently learnt that the goods had been discovered by police in a warehouse. On Goldman's account, he had then arranged an initial meeting between Radev and K, at K's request. K told Goldman that Radev was looking for him "in relation to this burglary". K asked Goldman -

"to connect them, to meet them and be present because he was very scared of [Radev]. ... He asked me if I can negotiate with [Radev] and can finish this matter peacefully."[9]

14 Goldman said that he was at first very unhappy with this request, but did subsequently arrange the meeting. Goldman conceded that he was aware that Radev was the sort of person who might kill K over the burglary.[10] He knew that K was in danger but believed his presence would "guarantee that nothing has happened".[11] Asked in cross-examination why he had became involved, he said:

"I felt nice for myself just to solve the problem".[12]

15 It was at this first meeting that K allegedly told Radev that the stolen goods had been sold. When Radev subsequently learned that this was untrue, he was "very upset"[13] and requested Goldman to arrange another meeting between himself and K.[14] Goldman told Radev that he did not want to be involved any further but Radev allegedly insisted that, because Goldman was already involved, he was somehow obliged to continue his involvement.[15] Given what he knew of Radev's violent propensity, it was inherently improbable that Goldman would have continued to be involved in a dispute for which he bore no responsibility, let alone set up a potentially violent meeting in his own flat.

16 If the events leading up to the encounter in the flat were indeed as Goldman described, the exchanges between Goldman and K recorded on the tape are unintelligible. The two simply cannot be reconciled. To take one example, if (as he said) Goldman's instruction from Radev was simply to kill K, why would Goldman say to K "Tell me everything"? Why would Goldman have repeatedly asked K "Who did it?"

17 Unsurprisingly, neither Goldman in his evidence, nor his counsel in final address, made any attempt to give a coherent explanation for what was said. When cross-examined as to why he had kept asking K "Who did it?", all Goldman could say was that he was "automatically following" statements made by K.[16] Earlier, in his evidence in chief, Goldman gave this account of the opening exchange with K, after the first shot:

"[K] said, 'It's not me, it's not my fault, what you doing?' and I automatically said, 'Whose fault then?' Because I have to think something to get out of this situation and plus I'm scared."[17]

18 The notion of an "automatic" response was highly implausible in relation even to this single exchange. As an explanation for Goldman's sustained interrogation of K, it was simply not credible. Goldman could offer no explanation at all as to why he had asked K:

He likewise claimed to have had no idea what K meant when he said "I didn't do it".[19] Asked why he had not then asked K what he meant, Goldman answered:

"Because I was doing the same role, I was playing the same role he was playing. He was scared and he was trying to get out of the situation and I am subconsciously or consciously at that time, but I was trying to help me a lot and to help him a lot. It is attractive to Nick Radev to listen to conversation."[20]

19 In final address, counsel for Goldman offered essentially the same explanation, that is, Goldman had simply "followed" what counsel described as the "babbling" of K:

"K starts babbling. It is not his fault, it is not him, and all of this babbling. What was he talking about? What wasn't his fault? What is he going on about? As Michael Goldman told you, he doesn't know what he is babbling about, but he is babbling. It wasn't me! Then who was it? You have got to remember it was K who had burgled, lied and cheated and he is babbling on: 'It's not me, it's not me, it's not me'. Well, what is this all about? Who is it? I suggest to you the exchange goes nowhere because it is K babbling: 'It wasn't me' and, as Michael Goldman told you, he followed that path: 'If it is not you, who is it?' And he is following that path ... K was babbling; Goldman, he had no capacity, I would suggest to you, to ask all the questions he might have otherwise asked, he just goes along with it."[21]

20 On its face, Goldman's explanation was highly unconvincing. Why, the jury must have wondered, did Goldman engage in a lengthy interrogation of K when he had been ordered to do one simple thing, that is, kill K? Why did Goldman appear to have an intense interest in eliciting information from K when he was merely an instrument of Radev's murderous purpose?

21 The implausibility was all the starker because, as the prosecutor pointed out in his address, the exchanges between Goldman and K made perfect sense when considered in the light of the objective facts. Only days earlier, both Goldman and K had been questioned by police. They were told that police wanted to question Goldman about the theft of a van. Goldman was asked about the names of others, including K, and was told that a warrant had been issued to search K's premises. Goldman was also told that the police had found a lock-up in Sandringham which contained a large quantity of stolen goods. Goldman subsequently met with K and - according to K's evidence - expressed the view that there must be an informer.

22 The Crown case was that the police questioning, and the information they had, convinced Goldman that K was an informer who had been telling the police about their criminal activities. According to the prosecutor, Goldman -

"decided that this man, this K, who had turned informer on him he believed, had to be eliminated. This person who knew all about the activities of the criminal team consisting of Goldman, Moroz and K had to be gotten rid of because he was a danger to them."[22]

23 This - quite different - context made the exchanges between Goldman and K entirely comprehensible. This was no "babbling" by K. On the contrary, Goldman was accusing K of being an informer. K was protesting his innocence and pleading for his life. Goldman was demanding to know who the informer was, if K himself was not. It immediately becomes clear why Goldman said to K:

"Wait a minute, you've been saying things against me all the time."

24 There were other unanswered questions which emphasised the implausibility of Goldman's account, such as:

•

why would Radev not dispose of K himself, at some more suitable time and place, rather than making Goldman do it, in broad daylight, in a block of flats, with an unsilenced weapon?

•

Why would Radev hide from K (as Goldman claimed he had done), given that K was to be killed anyway? There was obviously no need to hide from Goldman.

•

What possible reason was there for Radev to compel Goldman to commit murder? On his own version, Goldman had done nothing to provoke Radev.

•

Why did Radev not intervene and kill K himself, first, when it became clear that Goldman was carrying on a very long (and quite unnecessary) interrogation and, secondly, when K made to escape?

The defence could supply no answers to any of these questions.

25 As we have said, the Judge directed the jury to scrutinise the duress evidence as a whole. Upon such scrutiny, the implausibility of Goldman's version was manifest, not because he was the accused but because his version was irreconcilable with the objective facts. The impugned passage did not cast any doubt in the Robinson sense on Goldman's evidence. There was no danger, in our view, that the jury would treat him as a "suspect witness", nor that they would scrutinise his evidence more carefully than the evidence of other witnesses "for no reason other than that he was the accused".

26 We turn to the failure to take exception. As Mr Croucher pointed out, failure to take exception did not prevent the appellant from succeeding on appeal to the High Court in Robinson. (Indeed, the point had not even been taken in the Court of Criminal Appeal.) But, as has often been said, the failure to take exception is a matter to be accorded appropriate weight in the appellate court's assessment of whether there was a miscarriage of justice.

27 As Maxwell P said in Franco,[23] it seems most improbable that defence counsel would have remained silent had the impugned direction been likely - in the atmosphere of the trial - to have the prejudicial Robinson effect. Put another way, the fact that defence counsel made no complaint about this direction seems to us to render virtually untenable the proposition now advanced, that the effect of the direction was to have this jury, in this trial, treat the accused as "a suspect witness" in his own case. This ground does not concern some technical point of law which might have been overlooked in the pressure of the trial. Rather, it concerns what is said to have been prejudice of the most fundamental kind. Had there been any real risk that the direction would have that effect, we do not see how defence counsel could possibly have remained silent.

28 Finally, even if - contrary to our view - the impugned direction did infringe the Robinson principle, no miscarriage of justice occurred. As we have pointed out, the version of events advanced by the applicant and which gave rise to the possibility of a defence of duress was so implausible that its rejection, and his consequent conviction by any reasonable jury, could be regarded as inevitable.

29 We conclude with two general comments. The first is that the principle for which Robinson stands is of fundamental importance. Directions which are likely to have had the proscribed effect - of making the accused a suspect witness in his own case - are rightly to be treated as vitiating a guilty verdict. But, for the reasons given first in Franco and now in the present case, we do not consider that the impugned direction contravenes those principles.

30 Secondly, and notwithstanding what we have just said, we are of the view that the impugned direction should no longer be used in any case where the defence of duress is raised. It is, in our opinion, unnecessary for any such direction to be given. We see no reason to insist on special care being directed to the evidence dealing with a particular topic. The stringency of the jury's duty requires nothing less than careful scrutiny of every relevant piece of evidence. The question whether an accused's claim that he was acting under duress is plausible enough to raise a reasonable doubt is exactly the kind of matter which juries are well-equipped to deal with, without the need for any special direction.

Sentence application

31 The application for leave to appeal against sentence raises two grounds, namely that -

(a) the sentence is manifestly excessive; and

(b) the sentencing Judge erred in emphasising as an aggravating feature the fact that K had been a police informer at the time of the shooting.

32 As to ground 1, Mr Croucher submitted that both the head sentence (14 years) and the non-parole period (11 years) were manifestly excessive. He argued that this was the inevitable conclusion having regard to -

"(a) the applicant's age;

(b) the loss of ability to travel interstate to see his daughter, particularly in view of his 'deep concern' for his family's welfare;

(c) the fact that he has a stable and supportive relationship with his partner Tanya;

(d) the loss of privileges and the general hardship that he will likely endure throughout his sentence because of his prisoner status, age, accent, personality and ethnic background;

(e) the hardship he had already endured whilst on remand;

(f) the assistance he has given many of his former countrymen in assimilating within Australian society."

33 Mr Croucher argued that, while it was proper to have regard to the finding that the applicant had tried to kill K because he was an informer, the reasons for sentence, and the sentence imposed, demonstrated that too much weight had been given to this consideration. He submitted that a proper weighing of all the circumstances could not reasonably have produced the sentence which was imposed, which was amongst the highest imposed in Victoria for attempted murder.

34 We are not persuaded that either the head sentence or the non-parole period is manifestly excessive. The sentence was undoubtedly stern but it was, in our view, well within the range open to the Judge in the proper exercise of the sentencing discretion. It need hardly be repeated that this Court will only interfere on the ground of manifest excess when it can be shown that no reasonable sentencing judge could have imposed that sentence on that person in those circumstances. The sentence must be "wholly outside the range of sentencing options available."[24] That is not this case.

35 Attempted murder is a most serious offence. It falls short of murder only because the intent to kill was not effectuated. And this was a serious case of attempted murder, as defence counsel properly conceded on the plea.[25]

36 The sentencing Judge was satisfied - beyond reasonable doubt - that on each occasion when he discharged or attempted to discharge the pistol, Goldman was not acting under any coercion from Radev. He was also satisfied that Goldman's motive for attempting to kill K was to stop him informing to police and to prevent him being a witness against Goldman and others jointly involved in criminal activity.[26] There is no challenge to these findings. His Honour was well justified, in our view, in describing this during the plea as "one of the most serious cases of attempted murder."[27]

37 His Honour said:

"The sentence which I must pronounce must reflect both the seriousness of an attempt to take the life of another human being and

also your motive for doing so. ... Those who assist police with information perform a critical and invaluable service. Such conduct must be encouraged. The Court must by the sentence it imposes deter those who would resort to violence against a member of the community who provides assistance in the investigation and prosecution of crimes."[28]

38 We would respectfully endorse his Honour's remarks. The offence of attempted murder carries a maximum penalty of 25 years. In view of the serious aggravating circumstances, and having regard to Goldman's prior convictions for intentionally causing serious injury (1994) and threat to kill (1994), a head sentence of 14 years was not excessive in our view, less still manifestly excessive. The same is true of the non-parole period.

39 After the conclusion of argument on the appeal, Mr Croucher filed a supplementary submission in relation to sentence. Certain matters were raised with respect to Goldman's health but it was properly conceded that these matters would only fall for consideration if the Court upheld one or other ground of the application, such that the sentencing discretion was reopened. The application for leave having failed, it is unnecessary to consider those matters.

40 For these reasons, the applications for leave to appeal against conviction and sentence are refused.

41 On 24 March 2004 Michael Goldman was convicted by a jury of one count of having attempted to murder K on 10 July 2002. On 27 May 2004 he was sentenced to 14 years' imprisonment with a minimum of 11 years to be served before being eligible for parole. He now seeks leave to appeal against his conviction and this sentence.

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:

The Crown case is that when the accused shot K in the upper abdomen in his kitchen, he attempted to murder K. The Crown case is that he continued to attempt to murder K when he attempted to fire the pistol on a number of further occasions in the kitchen and had to eject the cartridges because the pistol jammed. It is the Crown case that he continued to attempt to murder K when he fired the further shot at him as he was exiting the flat. And that he continued to attempt to murder K when he shot K in the head whilst he lay on the nature strip. It is not necessary for the Crown to prove that each of those acts was an attempt to murder K. It would be sufficient if you were satisfied beyond reasonable doubt that one of those acts was an attempt to murder K. But the Crown case here is that there are a series of acts each of which was committed with the intention of killing K.

72 It is not without significance that the judge had earlier foreshadowed a direction in these terms in the absence of the jury. No complaint was made either by the prosecutor or defence counsel as to the adequacy of such a direction or in respect of its possibly leading to an uncertain verdict.

73 The applicant relied upon R v Trotter[32] in which the predecessor to this Court set aside a conviction where a jury had returned a verdict of guilty on a presentment alleging one count of indecent assault after a trial in which evidence of two separate incidents, each of which could have constituted the charge laid, was led by the Crown. The Court referred to the fact that the trial judge could have required the prosecutor to elect as to which act he relied upon in proof of the charge laid, or to amend the presentment to charge two separate indecent assaults. As neither course was followed, the jury, although unanimous that an indecent assault had been committed, may not necessarily have been unanimous in respect of the occurrence of either event. Some members of the jury may have been satisfied as to the occurrence of one of the events referred to in evidence whilst the rest of the jury was satisfied as to the other event but had an appropriate doubt as to the first. There was no way of knowing which act constituted the indecent assault of which the accused was convicted. As the Court considered the conviction uncertain it declined to apply the proviso and ordered a new trial at which the prosecution would either have to specify the act it alleged as the indecent assault or amend the presentment to charge two such assaults.

74 A similar problem of uncertainty in a verdict was dealt with by this Court in R v Rigoli[33] where doubt existed as to whether jurors might not have been unanimous as to particular acts of fraudulent conduct where a count in a presentment encompassed conduct which allegedly occurred over a long period (nine years). The judge in that case had directed the jury that they could convict if they were satisfied beyond reasonable doubt that during any part of the relevant period the accused earned income which would have disentitled him to certain Commonwealth benefits. As, on the evidence, there were some periods during which his actual income disentitled him to benefits and some periods when it did not, this Court considered that the jury verdict was on that account uncertain. It quashed the conviction.

75 In S v R[34] the High Court quashed three incest convictions because each count on the indictment was infected by what Gaudron and McHugh, JJ referred to as "latent duplicity". It had charged the accused with three counts of incest, each having occurred on an unspecified date in a particular calendar year. Although not duplicitous on its face, as each count alleged only one act of incest, the evidence admitted on the trial was not specific as to the count charged. The complainant gave evidence of only two specific acts of intercourse, only one of which was possibly identified as to time. It was, she said, the "first occasion" when she was at high school. The other specific act was the first of several before which the accused put on his wife's underclothes. Otherwise the complainant spoke of sexual intercourse on unspecified occasions including "every couple of months for a year". The closest she came to identifying times was after she described the "first occasion" and then said that other acts would have been "over the next two years".

76 In directing the jury the trial judge said:

"You have to be satisfied beyond doubt that at least on one occasion during each of those years there was (an act of incest)."

77 In a joint judgment Gaudron and McHugh, JJ and, in separate judgments, Dawson and Toohey, JJ upheld the appeal and Brennan, J thought the point was a good one but applied the proviso. Brennan, J considered the trial judge's error to have been allowing the trial to proceed without confining each count to a single act of intercourse by requiring the Crown to provide particulars, by requiring it to elect to proceed on a particular act or by requiring it to amend the indictment. A request by the accused's counsel for an adjournment pending the supply of particulars had been refused by the trial judge as had an application that the prosecutor be required to nominate or identify the acts the subject of the counts in the indictment.

78 Dawson, J considered that S was embarrassed in putting his defence as the prosecution was not put to its election and questions of the admissibility of similar fact evidence could not be dealt with appropriately by him. Toohey, J upheld the appeal on the basis that the accused did not know with any certainty the charge he had to meet. He considered the trial to have been fundamentally flawed on that account.

79 Gaudron and McHugh, JJ spoke of "latent duplicity". They considered the orderly administration of justice and its importance in avoiding prejudice to an accused as important considerations for the existence of a rule against duplicitous complaints. They said:

"There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict."

Their Honours referred to a number of authorities.

80 In upholding the appeal their Honours held that the trial had been fundamentally flawed by the admission of evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury. As no distinction was drawn between which evidence was directly probative of the acts charged and which evidence was merely led as admissible similar fact evidence, the jury had not been properly directed. Finally they referred to the possibility of uncertainty as to the jury's verdict and the real possibility that different jurors might have different acts in mind when they reached a guilty verdict.

81 In the present instance the Crown case against the applicant was that he commenced to attempt to murder K by shooting him in the kitchen of his apartment and that he continued that attempt by shooting at him on a number of subsequent occasions, both in the apartment and in the street outside. It was put as one attempt, even if it consisted of a number of discrete acts of shooting, any one of which may have itself constituted an attempt to murder.

82 The bringing of a single charge in such circumstances was recognised as not inappropriate by the House of Lords in DPP v Merriman[35]. Lord Morris of Borth-y-Gest considered that it would often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. He cited the opinion of Lord Widgery, CJ in Jemmison v Priddle[36] in support of his conclusion.

83 That the applicant understood the charge against him and the way the Crown put its case is beyond doubt. It was formulated by the judge in his charge in the terms expressed above without any objection from the applicant's counsel. No application was made by the applicant with respect to the presentment or in respect of the evidence which was led in support of it. The defence in this case was duress. It depended for its efficacy upon raising a doubt as to whether the applicant's acts in shooting at K were voluntary or affected by the intimidatory actions of Radev. The applicant's case was that duress excused each act of shooting at K.

84 In this Court the applicant submitted that the case against him and the live issue of duress meant that it was possible that some members of the jury thought duress was negatived in respect of some but not all of the shots which he fired or attempted to fire at K whilst other jurors might have been satisfied that duress was negatived in respect of different shots. It was not the defence case that there was any difference in the alleged duress acting upon the applicant over any part of the relevant period as compared with any other part of that period. The possibility of the jury approaching the case in this way was not the subject of any submission either by the Crown or the defence. Nor was it ever suggested that it should be the subject of any particular direction by the trial judge.

85 The Crown case was that the accused had the necessary intention to kill K from the beginning of the shooting episode until the end. It contended that Radev's presence in the apartment was a fiction invented by the applicant to enable the defence of duress to be floated. It said Radev was not there. The defence case was that Radev was present, that he threatened the applicant in the apartment and that the applicant shot at K in fear of Radev but in any event, he did not intend to kill him. No part of either case involved the dissection of the applicant's actions by reference to the various shots and attempted shots even though there was a dispute as to whether he in fact shot at K in the kitchen on an occasion or occasions when the gun did not fire. The trial judge expressed the view, in the absence of the jury, that it was inconceivable that the applicant's intent altered throughout the whole episode so that distinctions of the kind now contended for by the applicant did not need to be made. The Crown Prosecutor specifically agreed with the judge's observation and defence counsel did not demur from it although given the opportunity to do so.

86 In this Court in R v Walsh,[37] Phillips and Buchanan, JJA were considering a case of conspiracy to defraud where questions arose as to the unanimity requirement of a jury's verdict where one offence is charged but a number of discrete acts is relied upon as proof, any one of which would entitle the jury to convict. Their Honours considered that if those discrete acts go to the proof of an essential ingredient of the crime charged the jury could not convict unless they were agreed upon that act which, in their opinion, constituted that essential ingredient. But as their Honours said, much depends upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence.

87 In this case there was no live issue which required any particular direction from the trial judge as to unanimity other than that which he gave. Further, none of the difficulties discussed by the High Court in S v R[38] such as prejudice to the accused as to the case he had to meet, problems as to the admissibility of evidence, sentencing considerations having regard to the verdict delivered or even theoretical problems concerned with double jeopardy existed here. Most importantly, no complaint was ever made by the accused as to the form of the presentment having regard to the Crown case which he knew was being advanced and no exception was taken to the judge's charge.

88 In the circumstances the trial judge's charge was entirely appropriate. The applicant should not succeed on this ground.

Ground 2

89 The only evidence which raised the issue of duress in this case was that of the applicant, who described Radev's attendance at his apartment and his subsequent threats to the applicant and his family if he did not shoot K as he ordered him to do. The issue thus having been raised, the Crown bore the onus of excluding it beyond reasonable doubt.

90 In the course of giving the jury extensive directions as to the law concerning duress the trial judge gave it this direction as to the evidence relating to that issue:

"When considering the evidence in relation to this issue you should use your common sense and your knowledge of the world to consider the facts with care and discernment. Duress can be an easy answer for those who can devise no innocent explanation for their conduct or for those who readily could have avoided the dominance of threats or for those who allow themselves to be at the disposal or sway of some gangster. It is for this reason that you should look at the evidence relating to duress with great care and scrutiny."

91 The applicant now complains that this direction instructed the jury to look at his evidence "with great care and scrutiny", thus offending the rule as to the status of an accused's evidence in a criminal trial.

92 In R v Abusafiah[39] Hunt, J (with whom Gleeson, CJ and Mahoney, JA agreed) considered a direction to a jury by a trial judge in a case in which duress was an issue. It was in the following terms:

"Thirdly, it would be very easy for a person who has participated in a crime to allege that he did so under the compulsion of his colleagues in the crime, and you should view any such assertions with common sense suspicion."

93 Hunt J considered that, as a comment upon an issue of fact, the statement made by the judge was unexceptionable as he had both commenced and concluded his summing up by warning the jury to disregard any views which he might express in relation to the facts unless those views agreed with their own independent assessment of the evidence. However, as the judge's comment was inextricably bound up with his directions of law, the jury may have considered that it was not a comment on the facts of the case at all but rather was a direction of law. The conviction, however, was not set aside as counsel for the appellant in that case had sought no redirection from the trial judge and that if such a redirection had been sought any misapprehension by the jury could have been allayed by the trial judge.

94 The applicant in this case complains that the judge's direction as to scrutinising the evidence carefully had the effect of treating the applicant as a suspect witness in his own case contrary to the law as expressed by the High Court in Robinson v R[40].

95 Robinson was a rape case in which consent was the only issue. The trial judge had given the jury a general direction concerning the credibility of witnesses and referred to the question of whether a witness had an interest in the outcome of the case as being a material consideration. Later, he specifically referred to this consideration in the context of the accused's evidence, saying:

"If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness' closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."

96 Counsel for Robinson did not ask the judge to withdraw this direction. He did, however, seek a redirection in terms which would instruct the jury to consider whether the complainant also had an interest in the outcome of the case. The trial judge gave this redirection.

97 In a joint judgment the Court (Mason CJ, Brennan, Deane, Toohey and McHugh, JJ) considered the trial judge's directions to be erroneous. They had the effect that the evidence of Robinson had to be scrutinised more carefully than the evidence of any other witness and that accordingly such a direction was unfair, particularly when the outcome of the trial turned upon the question of the jury's preference for the evidence of the complainant against that of the accused. Their Honours also considered that the direction had the effect of treating Robinson as a "suspect witness" in the same way as an accomplice, that is to say as a witness whose evidence is to be accepted only after the most careful scrutiny. They also referred to the presumption of innocence and the fact that the directions of the trial judge did not "sit well" with that presumption which is, of course, that the accused is presumed innocent until they are satisfied beyond reasonable doubt of his guilt. Robinson's appeal was upheld.

98 The usual direction as to an accused's evidence is that it should be treated by the jury in the same way as the evidence of any other witness. In deciding whether to accept the evidence of any particular witness the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. Robinson specifically endorses such a direction. However, for the jury to be directed to scrutinise the evidence of the accused specifically on the basis of his interest in the outcome of the case is a misdirection which would require a new trial.

99 In 1993 and 1994 the High Court reaffirmed the rigour of the principle in Robinson whilst refusing special leave to appeal in two cases where it was contended that trial judges had failed to apply the principle adequately. Having regard to the summary nature of special leave applications[41], little can be drawn from the Court's short reasons delivered in each of these cases.[42] But it did, however, emphasise that Robinson was directed to ensuring that a jury was not invited to discount the evidence of an accused person, either directly or indirectly, because he had an interest in the outcome of the trial.

100 In DPP v Lynch[43] Lord Morris of Borth-y-Gest warned against allowing duress to be an easy answer for those who can devise no other explanation of their conduct. His Lordship said this in the context of discussing what being "really" threatened meant. He said that when duress becomes an issue "...courts and juries will surely consider the facts with care and discernment."

101 In the same case Lord Edmund-Davies spoke generally of the duty of the tribunal of fact to scrutinise with care the evidence adduced. He acknowledged with approval the opinion of Dixon J in Thomas v R[44] to the effect that courts must not be reluctant to permit an accused to avail himself of a state of mind defence, relying upon the jury to do its duty properly.

102 The comments of Lord Morris bear some resemblance to the trial judge's charge in this case as they do to the direction with respect to duress in His Honour Judge Kelly's Charge Book, a resource commonly used by trial judges in this State. But Lord Morris was not suggesting that a trial judge should invite particular scrutiny by the jury of an accused's evidence where a defence of duress is raised. He was speaking of the defence itself. And he was not suggesting that the jury needed any particular direction. He trusted it to do its duty in much the same way as Dixon, J did in the case cited by Lord Edmund-Davies.

103 In R v Jenner and Masters[45] Doyle, CJ (with whom Bleby and Martin, JJ agreed) said that a trial judge must not give a direction that might convey to a jury that they are entitled to attach less weight to the evidence of an accused person than they might attach to the evidence of any other witness, simply because the person is the accused.

104 Although the trial judge in this case was not directing the jury to apply special scrutiny to the evidence of the accused simply because he was the accused, and although he was speaking of the defence of duress rather than the evidence which went to the issue of its existence, his Honour's direction had the unintended consequence of singling out the accused's evidence for special scrutiny. It would be sophistry to conclude that because it would be possible to characterise the judge's direction as being critical of the defence of duress, not of the accused's evidence, the principle in Robinson did not apply. In this case the defence depended solely upon the evidence of the accused. The question for the jury was whether the accused's evidence raised a reasonable doubt as to whether he acted under duress or not when he shot K. Close or special scrutiny of the defence meant close or special scrutiny of the accused's evidence, because he would benefit from having that evidence accepted. The indirect effect of his Honour's direction was to place the evidence of the accused in a special category, thus offending the Robinson principle.

105 There was some discussion on the hearing of the appeal to the effect that the part of his Honour's charge quoted above might have been merely a comment on the evidence which the jury had been directed they could disregard if they considered it unhelpful. But the language his Honour used implied an obligation on the jury or at least advisability. It is thus a direction, not a comment.

106 The High Court expressed its view in Robinson in terms which do not admit of exception in the circumstances of this case. The applicant should be granted leave to appeal, the appeal should be upheld and a new trial ordered.

Appeal against Sentence

107 Having read, in draft, the joint judgment of the President and Vincent JA, I am aware that they do not share my opinion that the appeal should result in Goldman being re-tried. They are also of the view that his application for leave to appeal against sentence should be dismissed. I agree with their Honours' conclusion as to Goldman's application for leave to appeal against sentence and with the reasons they have expressed for that conclusion. I have nothing further to add.

[1] T 681-2.

[2] T 682.

[3] [2006] VSCA 302.

[4] At [63]-[91].

[5] [1991] HCA 38; (1991) 180 CLR 531.

[6] At [81], citing Stafford v R (1993) 67 ALJR 510 and Ramey v R (1994) 68 ALJR 917.

[7] At [82]-[84].

[8] At 535.

[9] T 329.

[10] T 413.

[11] Ibid.

[12] T 413.

[13] T 332.

[14] T 340.

[15] T 341.

[16] T 449, 450, 453.

[17] T 351.

[18] T 451.

[19] T 452. See also T 458.

[20] T 452.

[21] T 625-6 (emphasis added).

[22] T 563.

[23] At [91].

[24] The Queen v Boaza [1999] VSCA 126 at [42] per Winneke P.

[25] T 882-3.

[26] T 974.

[27] T 882.

[28] T 975.

[29] [2004] VSC 291.

[30] [1992] 2 AC 412.

[31] Inserted by Crimes (Homicide) Act 2005, applicable to offences alleged to have been committed after 23 November 2005.

[32] (1982) 7 A Crim R 8.

[33] [2006] VSCA 1.

[34] [1989] HCA 66; (1989) 168 CLR 266.

[35] [1973] AC 584.

[36] [1972] 1 QB 489, 495.

[37] [2002] VSCA 98; (2002) 131 A Crim R 299.

[38] S v R [1989] HCA 66; (1989) 168 CLR 266.

[39] (1991) 56 A Crim R 424

[40] [1991] HCA 38; (1991) 180 CLR 531

[41] North Ganalanja Aboriginal Corporation v Queensland (185) CLR 595, 643 (McHugh, J).

[42] Stafford v R (1993) 67 ALJR 510; Ramey v R (1994) 68 ALJR 510.

[43] [1975] UKHL 5; [1975] AC 653, 670 (Lord Morris), 712 (Lord Edmund-Davies).

[44] [1937] HCA 83; (1939) 59 CLR 279, 309.

[45] [2000] SASC 98; (2000) 110 A Crim R 512.