R v Goldman - [2007] VSCA 25

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 130 of 2004

THE QUEEN
	v
MICHAEL GOLDMAN

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JUDGES:	MAXWELL P, VINCENT JA and BONGIORNO AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2006
DATE OF JUDGMENT:	1 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 25

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CRIMINAL LAW – Attempted murder – Latent duplicity or uncertainty – Where more than one act capable of constituting offence of attempted murder – Extent to which jury unanimity required.

CRIMINAL LAW – Trial – Defence of duress – Direction to jury to scrutinise carefully evidence of duress – Whether direction impugned accused as a witness – Whether direction required jury to treat accused as "suspect witness" – Robinson v R (1994) 180 CLR 531.

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.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M J Croucher	Grigor Lawyers
For the Crown	Mr P A Coghlan QC, DPP With Mrs C M Quinn	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions

MAXWELL P,
VINCENT JA:

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.

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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Goldman

Details

AGLC: R v Goldman [2007] VSCA 25
Case: [2007] VSCA 25
Decision Date: 1 March 2007

CaseChat Overview and Summary

The case of R v Goldman involved the defendant, who was charged with attempted murder and faced a trial in the High Court of Australia. The core issue in this case was whether the jury had to be unanimous on the specific act that constituted the offence of attempted murder when the prosecution presented evidence of multiple acts that could potentially fulfil the criteria. Additionally, the case examined the defendant’s claim of duress as a defence and the court's direction to the jury regarding this defence.

The High Court addressed the necessity for jury unanimity when there are multiple acts potentially constituting the offence of attempted murder. The court found that the jury did not need to be unanimous on the specific act that constituted the offence, provided they were unanimous that the accused had attempted to commit the offence. Regarding the defence of duress, the court held that the trial judge’s direction to the jury did not impugn the defendant as a witness or require the jury to treat the defendant as a suspect witness, thereby not contravening the principles set out in Robinson v R.

The court ultimately ruled that the defendant’s sentence, which included 14 years’ imprisonment with an 11-year non-parole period, was not manifestly excessive. The court considered various factors, including the nature of the offence and the fact that the victim was a police informer, but determined that the sentence was appropriate. Consequently, the application for special leave to appeal was refused by the High Court.

Orders