10 I now turn to the circumstances of the offences.
The Background
11 The various charges on which the applicants were presented related to a series of burglaries on properties in the south-eastern suburbs of Melbourne. The applicants committed many of these offences with, Goldman, who as I have indicated, was charged and tried separately, and another individual to whom I will refer as K.[12] They were committed in private homes, many of which were in the process of construction or renovation. The bulk of the items stolen were whitegoods that were then transported, either in the applicants' motor vehicles or in stolen vehicles, to storage facilities and later sold.
12 In relation to the offences of aggravated burglary, count 2 on presentment no. C0403689.1 was found to have been committed whilst the applicants were carrying a firearm, and the other (count 6) when there were people inside the premises at the time that a burglary was perpetrated.
The Evidence - K
13 Although there was some supporting evidence in relation to some of the offences, the central witness in the trial was K.
14 The witness, who was in the witness protection programme, gave evidence by way of audio visual link and with the aid of an interpreter. He said that he came to Australia in 1996 with his family. Soon after his arrival, he began to commit criminal offences and had been involved in "hundreds" of burglaries. He accepted that he could not be described as an "honest citizen," but, perhaps taking a kinder view of his tendencies and personality than would be suggested by his activities, considered that he was "not very very un-honest."
15 K met Mendelis in or around 1996 and Moroz about three years later. In 2000, Moroz introduced K to Goldman. Not long afterwards, they all met at a café and commenced to discuss the prospect of engaging in joint criminal activities. Goldman, who assumed the role of leader of the group, talked to them about committing thefts, other possible crimes and how to sell stolen goods. However, according to K, they all contributed ideas for the offences that they subsequently carried out.
16 K claimed that Moroz told him that Goldman ordered Mendelis and Moroz to assault a man who resided in a unit in Kambrook Road, Caulfield, and that, on a night, in mid-2001, they went to that address, entered the premises and found the owner asleep in bed with his wife. They did not assault the intended victim and, instead, searched the unit and stole a television set and "something else". Mendelis told K that he kept the television set for himself, in the apartment that he shared with his wife and child somewhere in Caulfield. Moroz also confirmed this in a later conversation with K.[13]
17 On another occasion, in mid-2001, according to K, in company with Moroz and Mendelis, he went to an address in East Boundary Road, East Bentleigh, with the intention of committing an armed robbery. They had been told that one of the occupants was involved in the drug trade and had substantial amounts of money at home. The preparation for this robbery took some time as they collected information about the person from various sources. As a part of their research, they attended the area and studied the neighbourhood. They watched all the residents of the house and ascertained that three persons lived there. K said that he was told by both Moroz and Mendelis that, on one occasion, they went there without him but they were seen by the owner of the house who pursued them in his car. Mendelis, who was in possession of a hand gun (a Colt .45) belonging to Moroz, prepared himself for a "shoot-out", however the pursuit ceased when the owner noticed the weapon protruding from the applicants' vehicle.
18 Ultimately, at a time between 10.00 or 11.00 pm, K and the applicants returned to the house in order to commit the robbery. They wore balaclavas, dark clothing and gloves and took "sticky-tape" with them. K was armed with a Browning-32 calibre semi-automatic pistol, while Moroz carried a Beretta .32 calibre handgun and Mendelis, a Smith & Wesson .38 special revolver.
19 The three men went down the drive-way of the neighbouring house, jumped over the fence into the backyard of the target premises and hid. Through a large sliding door at the rear of the house, they saw that a young man who they believed was the only person present, had gone upstairs. They were preparing to break the door when they saw him returning with a dog. In consequence they hid once more. The young man let the dog outside, which then approached Moroz and started barking. They all reacted quickly and ran towards the young man. He immediately closed and locked the door. They tried to break the glass, but found that it was too strong. K then fired a shot at it which caused it to shatter and they entered. K ran towards the young man who ran out of the house and into the street. K and Moroz pursued him for a short distance but decided to return to the premises. They all left the house shortly afterwards and did not take any items. The group walked to the place where they had parked their own cars in the vicinity of a petrol station. They put the incriminating items in a bag which Mendelis took with him. Moroz and K drove back to the house to see what was happening. They were fairly confident the owner would not have wanted the police involved. However, as they passed by the premises they noticed two police cars parked outside.[14]
20 Sometime in July, August or September 2001, the three men went to a block of units in Wilson Street, Brighton, during the night with the intention of stealing from the premises. The target had been proposed by Mendelis who had done some painting work in that block. In order to gain entry to the various units, Mendelis would open the windows using a "big screwdriver", climb inside and open the back door. On their first visit, they broke into five or six units and from each stole the kitchen sets. They also took blankets, pillows and cushions from the first unit to protect the stolen items which they packed into a van that they had stolen for the purpose.
21 On the second and third occasions that they returned to this block, only K and Moroz were present. On the second, they stole four dishwashers and on the third, an oven door and a stainless steel cover for one of the dishwashers. They may have also taken sinks and kitchen taps, he said.
22 The people involved with the re-selling of the stolen items were men named "Eric" and a plumber called "Jim". Mendelis and Moroz were in contact with "Eric", and Moroz with "Jim". They split the proceeds of their activities between the three of them (counts 3, 9, 10, 11, 12, 14, 15, 16 and 17).
23 At around the same time, the group went to another house in Caulfield to which Mendelis had drawn to their attention when it was in the course of construction. There was no fence around it and they were able to enter the premises without difficulty. They stole an expensive cook top and several boxes of construction materials. Mendelis sold the cook top to someone called "Ilias" (count 4).
24 The group committed another burglary at a block of units in Milton Street, Elwood. Moroz told K that Mendelis and he had previously tried to burgle one of the units in these premises (count 5).
25 On another occasion in 2001, they committed a theft from a house under construction in Howitt Road, Caulfield. They forced open a window or a door and took a spa unit from the first level and some painting gear from the ground floor. They stored the spa at a unit until it was later sold by "Jim" (count 7). While they were there, Moroz pointed out another house in Narrawong Road and told him he had committed a theft there with Mendelis. He said that, in the course of their activities, they had came upon a case belonging to a real estate agent in which they found some keys that they used to gain entry. They stole a music centre and a DVD player from the ground floor while there were people on the floor above (count 6).
26 One night, while Moroz and K were in Moroz's car, cruising the streets looking for a suitable vehicle to transport stolen goods, they happened upon a van that they were able to start. Later they used this vehicle to commit many crimes (count 8).
27 On another occasion, they went to a building in Dawson Street, Brighton. They had been wandering around looking for construction sites when they chanced upon the particular premises which they observed were locked and with no one inside. Upon entering, they discovered a large metal box, that they thought was a gun safe, a music centre, a DVD player and a small amount of cash. They managed to remove all of the property through the window they had used to gain entry and took it to a vacant piece of land. They placed the stolen items into Moroz's car and drove to the beach where they opened the box. Inside they discovered two rifles in cases, one was fitted with a single barrel and the other with two-barrels of different calibres. Mendelis took the two barrel rifle and Moroz took the other, leaving the empty gun safe inside a big shrub. Later, Mendelis cut down the rifle he had taken and kept it in a case. Moroz took the other to his home, but later gave it to another man (count 13).
28 On another occasion, in the early hours of the morning, they attended a block of units in Moonya Street, Carnegie, after Mendelis had called K on his mobile telephone and informed him that he had identified a building from which they could steal kitchen sets. K and Moroz met Mendelis in the street and approached the premises. They noticed that the doors had already been opened. They entered and stole two kitchen sets and a large quantity of down lights from two of the units. They took these goods to another address in that same street where they stored them in a shed in the backyard. The goods were later sold (counts 18 and 19).
29 K who was arrested by the police on 5 July 2002, at the same time as the applicants, was already on bail in relation to other matters. In cross-examination, he said that the police took a substantial quantity of stolen property from his home, as well as some tools. However they did not find the guns. K agreed to assist the police in their investigations, and showed them where the stolen cars were parked, but he admitted, not everything he told them was true. He met with them again, on 9 July 2002, and it was his understanding that they wanted to talk to him about "doing a deal". Later, he agreed to give evidence about these matters on the condition that he was granted an indemnity against prosecution. On 16 October 2002, he was given an undertaking by the Director of Public Prosecutions that he would not be prosecuted in relation to anything he said in evidence in the proceedings.[15] He stated that when he first agreed to assist the police, his hope was to sever his ties with the applicants, go to gaol for a couple of years and to stay alive. Later, however, Goldman tried to kill him. He stated that he agreed with the police to ring Moroz and take part in a recorded conversation. It was also arranged that he meet with Goldman, wearing a recording device. When he did so, Goldman shot him.
Other Evidence in relation to the burglaries
30 Save for that adduced in relation to count 2 on presentment no. C0403689.1, in respect of which the claim of inconsistency of verdict has been advanced, there is no need to set out further, in any detail, the evidentiary background to the applications which consisted, for the most part, of the evidence of property owners whose premises had been burgled.
Count 2
31 Alexander Kovalski gave evidence that he was living at premises in Boundary Road, East Bentleigh in 2001 with his parents. One night, in or around May of that year, he heard some noises outside. He went to investigate and saw a white Toyota vehicle drive away. He and his father tried to follow it but the vehicle managed to get away.
32 About a month later, on 9 June 2001, between 8.00 and 9.00 pm, he was alone in the house with his dog which started to bark. When he let her out into the backyard, she ran over to a bush and barked. A man wearing a beanie emerged from behind the bush and hit the dog on the head with a pole. Another man ran towards him and he had just enough time to close the sliding door and lock it. The man hit the glass door with a metal pole but it did not shatter. Mr Kovalski ran to the front of the house to get away. He looked back and saw a man entering through the smashed sliding door. Both intruders were wearing hats that covered their faces and dark clothing. He ran to the house of a friend who called the police and they attended soon after.
33 Iouri Kovalski, the father of Alex Kovalski, gave evidence that, about a month prior to the burglary, he heard a noise outside their home and his son and he investigated and followed a car for a while. His wife and he were out when the burglary occurred on 9 June 2001.
34 Senior Constable Paul Sedgwick attended at the Kovalski home on the evening of 9 June 2001 along with other police. He observed the shattered sliding door, footprints in the garden and mud on the fence line.
Evidence in relation to the Investigation
35 Detective Senior Constable Mark Hatt gave evidence that on 5 July 2002 he went to premises in Devitt Court, Burnside [the residence of K], he conducted a search and later interviewed him. At the conclusion of the formal process, Hatt had a conversation with K, which was not tape-recorded, in the course of which K provided some information that was of assistance in the ongoing investigation. As there had been a large amount of property recovered he decided to complete that part of the investigation before laying any charges.[16] He phoned K and arranged to meet him on 9 July 2002 in company with Detective Sergeant John O'Connor and Detective Senior Constable John Marron. At the meeting K told them of a criminal syndicate in which he was involved. Hatt stated that the interviews in relation to K were never transcribed and he was never charged. Hatt also stated that K told many lies in the course of these conversations.
36 Senior Sergeant John O'Connor spoke with Detective Senior Constable Mark Hatt in relation to his dealings with K and attended with him at the meeting on 9 July 2002. He had been informed that K had information in relation to criminal activities in the south eastern suburbs of Melbourne. Later that day, Senior Detective Marron and he picked up K again and had another conversation with him. He gave them information in relation to a crime yet to be committed. On 10 July 2002, K was fitted with a covert recording device and met with Goldman later that day at about 1.50 pm. However, when he did so, K was shot twice by Goldman and was taken to the Alfred hospital.
37 On 22 July 2002, O'Connor met with K at the Tactical Response Squad offices in St Kilda Road. He expressed his willingness to co-operate with the police and went with them in a car, pointing out the locations of burglaries he had committed. K was placed in the Witness Protection program. A video interview was conducted over a series of days, which was transcribed and subsequently adopted by K as a statement. On 26 October 2003, he was formally provided with an indemnity against prosecution. O'Conner stated that K and others were involved in some 130 burglaries and about $1.7 million worth of stolen property. About $300,000 worth of stolen white goods were located at the Bay Street storage facility.
Moroz - The Application for Leave to Appeal Against Conviction
Grounds 1 and 2
38 It was argued on behalf of the applicant under these grounds that, in a case in which Moroz and Mendelis were alleged,[17] on virtually identical evidence, to have jointly committed the offence of aggravated burglary, his conviction on that count could not be reconciled with the acquittal of his alleged co-offender.
39 There is no need in the circumstances of the present case to expatiate upon the principles to be applied by an appellate court when the question of possible inconsistency of verdicts arises.[18] The assertion that we have to consider is remarkably straightforward. Count 2 alleged that -