R v Moroz & Mendelis - [2007] VSCA 30

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 204 of 2005

No. 211 of 2005

THE QUEEN
THE QUEEN	v
SVIATOSLAV MOROZ
and
DIMA MENDELIS

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JUDGES:	VINCENT JA and SMITH and KING AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2006
DATE OF JUDGMENT:	7 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 30	1^st Revision – 7 March 2007

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Criminal Law – Conviction – Burglary – Aggravated burglary – Inconsistency of verdicts between co-offenders on identical evidence – Whether verdict unreasonable – Sufficiency of accomplice warning – Immunity from prosecution secured by Crown witness – Reliability of evidence - Evidence of Crown witness given by way of audio visual link – Failure to comply with statutory requirements of s 42V of the Evidence Act 1958 – Whether miscarriage of justice – Application allowed – Conviction of applicant Moroz on count 2 quashed.

Criminal Law – Sentence – Discretion re-opened as a result of quashing conviction in respect of applicant Moroz – Whether sentencing judge properly took into account factors militating in mitigation of penalty – General deterrence – Whether individual sentences imposed appropriate in circumstances – Application allowed and applicants re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G T Cannon	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant Moroz	Mr O P Holdenson, QC	Stephen Andrianakis & Associates
For the Applicant Mendelis	Mr C B Boyce	Victoria Legal Aid

VINCENT JA:

Presentment No. C0403689.1

The applicants, Sviatoslav Moroz (“Moroz”) and Dima Mendelis (“Mendelis”), were presented jointly before the County Court at Melbourne, on 11 February 2005, (presentment no. C0403689.1) on 13 counts of burglary,[1] and two counts of aggravated burglary.[2] Moroz was also presented on a further count of theft.[3] Each pleaded not guilty to all counts pertaining to him. On 9 March 2005, the jury returned the following verdicts:

Moroz
  Guilty on counts 2, 4, 5, 6, 10, 11, 12, 13, 18 and 19.
  Not guilty on counts 1, 3, 7, 8, 9, 14, 15, 16 and 17.[4]
           Mendelis
Guilty on counts 1, 4, 5, 6, 13, 18 and 19.
  Not guilty on counts 2, 3, 7, 9, 10, 11, 12, 14,15,16 and 17.[5]

[1]Counts 1, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.

[2]Counts 2 and 6.

[3]Count 8.

[4]In respect of count 9, the trial judge directed that a verdict of acquittal be entered.

[5]In respect of counts 9, 10, 11, 12, 14, 15, 16 and 17, her Honour directed that acquittals be entered on each count.

As both applicants were facing trial for other matters, the hearing of the plea was adjourned until the conclusion of the various proceedings.

Presentment No. C0403689.3

On 14 April 2005, presentment no. C0403689.3 was filed in the County Court against Moroz. It contained 33 counts of burglary; four counts of theft; four counts of obtaining property by deception; and one count of attempting to obtain property by deception. Moroz pleaded guilty to all counts on this…

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 Moroz & Mendelis

Details

AGLC: R v Moroz and Mendelis [2007] VSCA 30
Case: [2007] VSCA 30
Decision Date: 7 March 2007

CaseChat Overview and Summary

In the matter of R v Moroz & Mendelis, the appellants were convicted of aggravated burglary and related offences, with the Court of Appeal being asked to review the consistency of verdicts, the sufficiency of warnings to the jury, the reliability of evidence from a Crown witness, and the appropriateness of the sentences imposed. The appellants were co-offenders in a burglary case, with evidence that Moroz acted as the getaway driver while Mendelis entered the premises. The jury acquitted Mendelis of aggravated burglary but found Moroz guilty, a discrepancy that raised questions about the consistency and reliability of the verdicts.

The legal issues before the court were multifaceted. Firstly, the court had to consider whether the verdicts of the jury were unreasonable given the identical evidence presented against both defendants. Secondly, it was necessary to examine whether the jury had been sufficiently warned of the potential dangers of convicting based on accomplice testimony. Thirdly, the court considered the reliability of the evidence provided by the Crown witness, who had immunity from prosecution and testified via an audiovisual link, a procedure that did not comply with statutory requirements. Lastly, the court reviewed the sentences imposed, considering whether they were appropriate given the circumstances, especially after the conviction on one count was quashed.

In addressing these issues, the court found that the jury's verdicts were inconsistent and unreasonable, especially given the identical evidence against both appellants. The warning given to the jury about convicting based on accomplice evidence was deemed insufficient. The reliability of the Crown witness's evidence was also called into question due to procedural shortcomings in the audiovisual link testimony. Consequently, the court quashed Moroz's conviction on count 2. The court also found that the sentencing judge did not adequately consider mitigating factors and that the sentences imposed were inappropriate. Therefore, the court allowed the appeals, quashed the conviction, and re-sentenced the appellants.

The final orders of the court included quashing Moroz's conviction on count 2, allowing the appeals, and re-sentencing both appellants. The court's decision underscored the importance of consistent and reliable evidence in criminal trials and the necessity for proper judicial warnings and sentencing considerations.

Orders