R v Moroz & Mendelis
[2007] VSCA 30
•7 March 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 204 of 2005
No. 211 of 2005
| 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 | 1st 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 presentment and admitted three prior convictions arising from two court appearances. For the most part they related to offences of dishonesty. The hearing of the plea in relation to the offences encompassed by this presentment was adjourned to 3 May 2005.
Presentment No. C0403689.4
On 14 April 2005, a co-offender Michael Goldman (Goldman), pleaded guilty in the County Court to one count of theft and one count of burglary on presentment no. C0403689.4. The hearing of that plea was also adjourned to 3 May 2005.
On 3 May 2005, her Honour commenced the hearing of pleas in mitigation of penalty made on behalf of Mendelis and Goldman.[6] After hearing submissions, the matter was adjourned until the hearing of the plea in relation to Moroz.[7]
[6]Mendelis admitted a number of prior convictions arising from two court appearances. On 26 June 1998, he was convicted at the Melbourne County Court of intentionally causing serious injury and making a threat to kill. On 16 July 1991 he was convicted at the Melbourne Magistrates’ Court of 13 charges of burglary, ten charges of theft, two charges of going equipped to steal, two charges of attempted burglary, one charge of being unlawfully on the premises and one charge of using heroin.
[7]This proceeding was conducted on 5 May 2005.
On 1 July 2005, her Honour sentenced the applicants as follows:
Presentment no. C0403689.1
Moroz
Count 2 - four years and six months’ imprisonment
Count 4 - three years’ imprisonment
Count 5 - three years’ imprisonment
Count 6 - four years’ imprisonment
Count 10 - three years’ imprisonment
Count 11 - three years’ imprisonment
Count 12 - three years’ imprisonment
Count 13 - three years’ imprisonment
Count 18 - three years’ imprisonment
Count 19 - three years’ imprisonment
Her Honour directed that six months of the sentence imposed on each of counts 6, 10, 13 and 18 and three months of the sentence imposed on each of counts 4 and 5, be served cumulatively with that imposed on count 2, thus creating for this applicant a total effective sentence of seven years’ imprisonment.
Mendelis
Count 1 - three years’ imprisonment
Count 4 - three years’ imprisonment
Count 5 - three years’ imprisonment
Count 6 - four years’ imprisonment
Count 13 - three years’ imprisonment
Count 18 - three years’ imprisonment
Count 19 - three years’ imprisonment
Her Honour directed that six months of the sentence imposed on each of counts 1, 13 and 18 and three months of the sentence imposed on each of counts 4 and 5, be served cumulatively with that imposed on count 6. This created a total effective sentence of six years’ imprisonment, in respect of which a non-parole period of four years was fixed.[8]
[8]Various summary charges against Mendelis also resulted in the imposition of monetary fines and the recording of a conviction.
Presentment no. C0403689.3
Moroz
Counts 1 to 18,
20, 27 to 31
and 33 to 41 - two years and six months’ imprisonment
Count 19[9] and 42 - 15 months’ imprisonment
Counts 21 and 24 - 10 months’ imprisonment
Counts 22 and 23 - 12 months’ imprisonment
Count 25 - eight months’ imprisonment
Count 26 and 32 - 18 months’ imprisonment
Her Honour ordered that six months of the sentence imposed on each of counts 3, 5, 10, 18, 27, 28, 29 and 35 be served cumulatively with that imposed on count 1 and three months of the sentence imposed on each of counts 19, 23, 26 and 32 also be served cumulatively with the sentence imposed on count 1. This created a total effective sentence of seven years and six months’ imprisonment.
[9]I note that according to her Honour’s sentencing remarks, she imposed a sentence of 15 months’ imprisonment, however, what appears on the “Return of Prisoners” document is the imposition of two years and six months’ imprisonment in respect of count 19.
Her Honour directed that 18 months of the sentence imposed on presentment no. C0403689.3 be served cumulatively with the sentence imposed on presentment no. C0403689.1. The resultant period of incarceration imposed was nine years in respect of which a non-parole period of seven years and six months was fixed.
The Applications
Moroz now seeks leave to appeal against the convictions entered against him on 9 March 2005 and the sentences[10] imposed for all offences on the grounds that:
Conviction
1. The verdict of the jury of guilty on count 2 [Presentment no. C0403689.1] is inconsistent with the acquittal by the jury on count 2 of the applicant’s co-accused Dima Mendelis and, as a consequence, there has been a substantial miscarriage of justice.
2. The verdict of the jury on count 2 is unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.
3. The learned trial judge erred by failing to properly warn the jury of the dangers inherent in relying on the evidence given by the Crown witness [K].
4. The learned trial judge erred by failing to warn the jury in accordance with s 42V of the Evidence Act 1958 (Vic), in particular, the learned trial judge failed to warn the jury that they must not draw any inference adverse to the applicant or give any evidence given by the Crown witness [K] any greater or lesser weight because of the fact that this witness gave evidence by way of audio visual link in accordance with a direction made under s 42E(1) of the Evidence Act 1958 (Vic).
[10]In view of the conclusion at which I have arrived which necessitates the re-sentencing of Moroz, I need not set out or address the grounds of complaint regarding sentence.
Mendelis also seeks leave to appeal against his convictions for the offences encompassed by presentment no. C0403689.1 and the sentences[11] imposed upon him for all offences on the grounds that:
[11]As it is necessary to re-sentence Moroz, and in order to ensure that full regard is had to the principle of parity, the sentencing discretion in relation to Mendelis would need to be re-considered whatever the outcome of the application with respect to conviction of this applicant.
1. The learned trial judge erred by failing to properly warn the jury of the dangers inherent in relying on the evidence given by the witness [K].
2. The learned trial judge erred by failing to warn the jury in accordance with s 42V of the Evidence Act 1958 (Vic), in particular, the learned judge failed to warn the jury that they must not draw any inference adverse to the applicant or give any evidence given by the witness [K] any greater or lesser weight because of the fact that this witness gave evidence by way of audio visual link in accordance with a direction made under s 42E(1).
3. The verdicts of ‘guilty’ should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence.
PARTICULARS
(a) The verdicts of guilty are unsafe and unsatisfactory; and,
(b) The verdicts are against the evidence and the weight of the evidence.
I now turn to the circumstances of the offences.
The Background
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]K assisted the police in their investigation and gave evidence against the applicants. In return, he was never charged and was formally indemnified against prosecution.
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
Although there was some supporting evidence in relation to some of the offences, the central witness in the trial was K.
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.”
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.
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]
[13]Count 1 on presentment no. C0403689.1.
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.
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.
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]
[14]It was the conviction of Moroz and the acquittal of Mendelis in respect of count 2 on presentment no. C0403689.1 which the claim of inconsistency arises.
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.
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.
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).
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).
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).
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).
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).
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).
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).
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.
[15]He was subsequently registered as a Victoria Police informer.
Other Evidence in relation to the burglaries
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
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.
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.
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.
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
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.
[16]It is, I think, reasonable to assume that the witness had regard to the possibility of securing further co-operation in arriving at that decision.
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.
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
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.
[17]Count 2 on presentment no. C0403689.1.
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 –
“Sviatoslav Moroz and Dima Mendelis at East Bentleigh in the said State on the 9th day of June 2001 entered as trespassers a building situated at 93 East Boundary Road with intent to steal therein and at the time had with them firearms.”
[18]Mackenzie v R (1996) 190 CLR 348; Jones v R (1997) 191 CLR 439; R v Iliovski & Shnider (2002) 135 A Crim R 117; MFA v R (2002) 193 ALR 184.
The Crown contended that, in company with K, both men participated in the forcible entry of the Kovalski family home in Boundary Road and that, at the time they did so, each possessed the intention of stealing, by way of armed robbery, from the occupants. They were, it was said on the basis of the evidence of K, all armed and equipped with balaclavas, dark clothing, gloves and tape. If that evidence was accepted by the jury, and it clearly was in the case of Mendelis, the offence was committed at the moment of entry and both were guilty. The only evidence concerning the involvement of either man was given by K. The defence advanced on behalf of each of the accused men was that the particular accused was not present and that K was an untruthful and inherently unreliable witness. K was, on his version, an accomplice and a warning was given which encompassed both. There was nothing that I have detected in the evidence or which has been drawn to our attention that could reasonably raise the possibility that he could be perceived as more reliable in relation to one than the other. Nor is it possible to discern any satisfactory basis upon which the jury would have been legitimately able to distinguish between Moroz and Mendelis so that one could be found guilty and the other acquitted.
The only explanations proffered by counsel appearing for the Crown for the apparent inconsistency in the verdicts were:
· first, that the jury may have formed the view that Mendelis attended the premises for the purpose of engaging in an armed robbery and not an entry with intent to steal as alleged in count 2; and
· second, it was suggested, that, in light of what was described as “the lesser role played by Mendelis in gaining access to the house,” the jury may have decided to give him lenient consideration.
Neither of these explanations is satisfactory. Whether Mendelis intended to steal simpliciter or engage in an armed robbery was irrelevant to his guilt on count 2 and I do not understand that it was ever suggested by anyone in the trial that he was entitled to an acquittal if his intention was to commit the latter offence. This is hardly surprising as both encompassed the element of stealing. The three men did perform different roles after they entered the backyard and in the house, but there is nothing that could serve to distinguish their situations on this basis. It may well be that the jury formed different impressions of Moroz and Mendelis and decided to extend leniency to Mendelis, but that would only explain why they chose to return inconsistent verdicts and could not be used to justify the different results.
This ground has been made out in my opinion.
Moroz – Ground 3
Mendelis – Ground 1
The argument was advanced in support of these grounds that the provision by the trial judge to the jury of a standard form of accomplice warning with respect to the evidence of K was insufficient in the circumstances as it did not address the “most pernicious danger or source of unreliability.” This, it was said, arose from the undisputed desire of K to secure, in addition to other benefits, immunity from prosecution for a large number of serious crimes. He had obviously co-operated with the police and could be perceived by the jury, it was said, as having no reason to attempt to minimize his role or the extent of his responsibility as a co-offender. In other words, without some direction, the jury may have viewed him as possessing no reason to lie. This created, the argument continued, a significant potential that they would have attributed to his evidence greater reliability than it merited as a consequence of their underestimation of the significance of the benefits he had derived and was still deriving from his co-operation. However, it is apparent, and would have been to any reasonable jury, that K possessed powerful motives for ingratiating himself with the authorities and to remain in their favour and therefore may well have tailored his evidence to satisfy their expectations. The standard form of instruction with respect to accomplice evidence given to the jury by the trial judge, which was directed to quite different risks, would normally have been appropriate but it was inadequate to draw to the attention of the jury those actually arising in the case, counsel submitted.
It is clear that counsel for each of the accused at the trial was concerned to emphasize the possible sources of unreliability of the evidence of this witness. Counsel for Moroz submitted to the trial judge:
“COUNSEL: … Your Honour, in the accomplice warning, in my submission your Honour should give the jury also reasons why the law gives such a direction.
HER HONOUR: Didn’t I give the reason? I thought I did.
COUNSEL: To a limited extent, yes.
HER HONOUR: What have I said here?
COUNSEL: That it’s dangerous and that it’s unreliable I think.
HER HONOUR: I’m just trying to look at – didn’t I say they seek to minimize their – yes, they seek to justify their own conduct, they often seek to shift the blame wholly or partly on to others and construct untruthful versions tending to exculpate the guilty and implicate the innocent.
COUNSEL: The main matters, your Honour, is it goes further when an immunity has come into play. What I put to the jury was one, obviously the risk of an accomplice telling an untrue story is greater if he has been offered the prospect of immunity or reward and as a matter of commonsense, freedom from prosecution obviously constitutes and (sic) inducement or a persuasion to give false evidence and also that an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused. He’s a witness peculiarly equipped by reason of his inside knowledge to convince the unwary that his lies are the truth.
HER HONOUR: That’s what you said to the jury, isn’t it?
COUNSEL: Yes.”[19]
In consequence, the judge further instructed the jury:
“ … [I]n relation to my direction as to accomplices, as a matter of law for the sake of completeness, as I said to you – and I read this to you and I will read it again – it is just about why the law is a judge must give you a direction in relation to accomplices, as I said to you, ‘It’s the experience of the law that the evidence of an accomplice is frequently unreliable, accomplices seek to justify their own conduct. In doing so, they often seek to shift the blame wholly or partly onto others. In the process, they construct untruthful versions which tend to exculpate the guilty and implicate the innocent.’ As you know in this case the indemnified witness is the accomplice. So other than counts 1, 5 and 6, [K] said he was a part of those who committed the other offences. Exhibit C5 is the indemnity, and you will have that to take into your jury room, and as a matter of law, what the barristers have put to you is quite correct, and that is, is that he cannot be charged because of this indemnity with committing any of the crimes in which he said he was involved. So, he has not been dealt with, nor will he be. What was said is quite right, that protects him from being charged in relation to those offences or from any offence in which he says he is a part of.”[20]
Apparently content with this additional direction, counsel took no further exception.
[19]T844-845.
[20]T848-849.
The matters that bore upon the reliability of the evidence of the witness and which it has been contended in this Court should have been the subject of specific reference in the judge’s directions, were not overlooked in the trial. Indeed they constituted the very bases of the challenge that was made to it by counsel for each of the applicants. The situation in the trial was clear. There can be no doubt that the jury appreciated that K was a crucial witness and, in relation to some counts, provided the only evidence against the applicants. He was a self-acknowledged criminal and liar and it was undisputed that he had secured very significant benefits for himself as the “price” for his co-operation. All of this was known to the jury and emphasized throughout the trial by defence counsel. As the passage set out above makes apparent, the jury had the formal letter confirming the grant of indemnity before them. They knew what it was, what it meant and why the grant had been made, and they can be taken as reasonable people to have appreciated the character of the witness himself. They were also well aware of the nature of the benefits that the witness had derived and was continuing to derive as a consequence of his co-operation. It is, considered against that background, understandable that counsel, who took the exception, regarded no further instruction as required.
The system of trial by jury is predicated on the proposition that jurors will apply their common sense and understandings of human behaviour when determining the extent to which reliance can be placed upon the evidence of a witness. In this case, the possible motivations for giving false or unreliable testimony not only provided the focus of the defence challenge to his reliability, but were also obvious, powerful and easily understood. They were not of such a nature that they needed to be brought to the attention of the jury in the form of a judicial direction. The judge provided a standard accomplice warning, pointing out that in relation to a number of counts on the presentment, the evidence of K was uncorroborated. They were instructed in a conventional fashion that it was dangerous to convict on the unsupported evidence of K. In the circumstances, nothing more was required, although, of course, it would have been better had the trial judge more carefully tailored the directions given with respect to accomplice evidence rather than simply to recite the standard directions.
It must always be remembered that the plethora of instructions to be given by the trial judge to the jury in a criminal trial are all directed to ensuring that the jury is adequately equipped to perform their duty. Broadly speaking, this involves the identification of the issues in the trial and the evidence relevant to their determination. They must be instructed, where appropriate, concerning the impermissible use of evidence or reasoning with respect to guilt in order to obviate the risk of injustice. The instructions that a trial judge must give are not to be approached as mantras to be formally incanted but should be directed to the actual risks associated with the particular evidence concerned. Here, as I have indicated, that was not done but no risk arose, in my view, that the matters upon which reliance was placed before us, may not have been properly taken into account.
These grounds must fail.
Moroz – Ground 4
Mendelis – Ground 2
As earlier mentioned, K gave evidence by way of audio visual link in accordance with a direction made by the judge under s 42E(1) of the Evidence Act 1958. In that situation, s 42V which reads –
“If a court makes a direction under section 42E(1) in a criminal trial or an accused person appears before a court in a criminal trial by audio visual link in accordance with Division 3, the judge must warn the jury not to draw any inference adverse to the accused person or give any evidence given by the witness or the accused person any greater or lesser weight because of the making of the direction or the appearance by audio visual link.”
is applicable.
The instructions given by the judge to the jury was:
“In this case the main Crown witness,[K], was on video link. So it has been said by counsel that it is harder, and it is correct, to observe his demeanour and personality because he is on a television screen but of course you are entitled, with those limitations, to observe from what you see of him, his demeanour and personality and how he answers questions, the same as other witnesses.”[21]
[21]Charge T813.
In this Court, it was conceded by the Crown that these instructions did not comply with the statutory requirement to warn the jury that adverse inferences were not to be drawn against the applicants by reason of the adoption of this procedure. But, it was said, this deficiency was inconsequential when regard is had to the context in which the instruction was given and the potential prejudice that was likely to result from any further reference to the matter.
There was some discussion prior to the commencement of the judge’s charge concerning the fact that K had given evidence by way of audio visual link, however it was directed to what were perceived by counsel to be increased difficulties in the assessment of the credibility of the witness’ evidence where the jury were reliant upon two dimensional images and not direct observation of him. It is noteworthy that no mention was made of s 42V by any of those involved and there is nothing in the discussion that suggests the presence of any concern by counsel that an adverse view of their clients may have been taken by the jury as a consequence of the adoption of this method. The significance of the failure to comply with the statutory requirement must be assessed against the background that the jury were aware that K had been involved in numerous criminal activities, that he was a registered police informer, who was in the witness protection programme, and that he had been shot by Goldman. Attributing to the jury a modicum of reasoning capacity, they would have appreciated that K almost certainly had many enemies and would not have been at all surprised that his evidence was given in this way. The prospect that the impact of the evidence might have been increased or some adverse inference drawn against either of the applicants by the technique employed for its reception rather than its source, content, and the background against which it was given can be discounted as quite remote and insufficient to give rise to the risk that a miscarriage of justice may have occurred.
This ground also fails.
Mendelis – Ground 3
This ground raises the complaint that even if the various defects asserted by the other grounds were insufficient to demonstrate legal error, nevertheless, when placed in the context and taken in conjunction, they can be seen to have resulted in a miscarriage of justice. I do not accept this contention as there is no sufficient substance in any of the complaints or defects to support it and precious little that could give rise to the suggestion that, taken together, they may have impacted adversely upon the fair trial of the applicant.
It follows from the above that, in my opinion, the application for leave to appeal by the applicant Moroz should be allowed with respect to his conviction on count 2 on presentment no. C0403689.1 and the verdict on that count quashed and otherwise dismissed. In view of the basis for this decision, it would be inappropriate to direct that a re-trial be had.
I consider that the application for leave to appeal by the applicant Mendelis should be dismissed.
The Applications for Leave to Appeal Against Sentence
As earlier indicated, there is no need to address the grounds of application for leave to appeal against sentence by each of the applicants as the consequence of the making of the orders proposed would be the re-opening of the sentencing discretion for each.
The sentencing judge correctly emphasized, when addressing each of the applicants, the offending in which they engaged was extremely serious. They participated in organized, effectively planned and carefully executed activities over a substantial period of time “directed at vulnerable targets, including premises under construction or renovation.”[22]
[22]Sentence T1080.
As her Honour pointed out, general deterrence was an important sentencing consideration in such cases. She continued:
“Owners of homes and properties are entitled to leave their premises under construction or under renovation, at any stage; in particular near completion without the need for expensive security alarms or armed guards, and people are entitled to feel safe in their own homes.”[23]
Her Honour was satisfied beyond reasonable doubt that “the participants in each count, on each presentment, had equal roles in the carrying out of each offence” but took into account that the applicants were both substantially younger and less experienced than K and presumably were influenced by him.
[23]Sentence T1080.
When directing attention to personal factors militating in favour of mitigation of penalty in each case, her Honour stated (inter alia) with respect to the applicant Moroz:
“ … You were born on 29 July 1974, and you are now aged 30 years. These offences were committed between June 2001 and July 2002 when you were aged 27 and 28 years.[24]
[24]Sentence T1073.
…
You have seven prior findings of guilt in relation to dishonesty offences from two court appearances in 1993. I accept that these are in relation to offences which are considerably less serious than the matters on the presentment, and there are no prior matters for burglary or aggravated burglary. Your prior criminal history is not in relation to any organized criminal activity such as these.[25]
[25]Sentence T1074.
…
… [T]he criminality involved in count 6 was at the lower end of offending in relation to aggravated burglary.
As to your personal history. You were raised in Moscow by your mother. Your father was much older than your mother and have had little contact with him. You have a stepbrother who is a professional violinist. You came to Australia with your mother in 1991 as she wanted a better life and did not want you conscripted into the Russian Army.
Initially you and your mother lived in Canberra and then moved to Melbourne where you undertook an apprenticeship as a chef in 1992. You obtained employment in various restaurants until 1999 when you commenced to work at Repco where your stepfather worked. In addition, you worked as a car detailer between 1998 to 2002, as well as casual work as a chef at a Russian restaurant in Carnegie (sic) 1997 to 2002.
Unfortunately you suffered an injury to your back which affected your ability to work as a chef as it was difficult for you to stand for extended periods. This occurred in a motor vehicle collision. You developed depression during the time you were not able to work. You suffered agoraphobia and depression; started to take amphetamines, clearly to lift your mood. You committed crimes of dishonesty to obtain money to buy drugs. You were using amphetamines at a time which overlapped the period of each of the presentments.
I take into account the references that were tendered on your behalf which include friends who have known you and your family for a considerable period, your mother, stepfather and half brother, your former wife and her parents and previous employers.
A report of a clinical psychologist was tendered on your behalf, Mr Simon Kennedy, dated 3 May 2005, and I take into account the contents of that report, and I will refer specifically to two parts.
At p.8 under ‘Summary and recommendation’, he reported: ‘Mr Moroz functioned reasonably well until his mid-20s when it would appear that he developed significant problems associated with depression and anxiety. He then developed a drug addiction in part of the form of self medication for his panic disorder with agoraphobia and depression. This then led to theft associated with funding his drug addiction.’
I now refer back to p.4. He said: ‘In the late 1990s, Mr Moroz began using amphetamines and cocaine and occasionally would use marijuana. He has not had a drinking problem. Mr Moroz began using amphetamines most days, somewhere between 5 and 10 grams, and indicated that this helped with his energy and mood, and the pain associated with his back difficulty. This also led however to financial problems and clearly, Mr Moroz’s theft related charges have been associated with drug use, and the fact that he was out of work and had financial obligations.’
I will now continue at p.8. He further reported: ‘Mr Moroz presented as an individual who is profoundly depressed and continues to suffer intensely from panic disorder with agoraphobia, even in prison. This obviously has been extremely debilitating for him. He has not had formal treatment, however I do note he has been involved in the GROW program and has been associated with other programs within prison, obviously aware of his own difficulties. Mr Moroz is extremely reluctant to undertake formal psychological or psychiatric treatment, nevertheless this is required.
These issues need to be addressed appropriately due to the extent of his disability. In my opinion the charges in question can be directly related to his psychological and psychiatric problems as outlined. In my view, effective psychological and psychiatric treatment would all (sic) Mr Moroz to have a sound prognosis with a significantly lower recidivism.’
I sentence you Mr Moroz, on the basis that you are an appropriate vehicle for general deterrence. I accept that you have been given the status of billet in the prison system which indicates you have acted responsibly in prison.
You have completed various programs in prison, including educational programs and drug programs. You have also successfully participated in a program which I referred to in the psychological report which is directed to your depression, GROW, which is a 12 step mutual support program.”[26]
[26]Sentence T1074-1076
Subsequently, the applicant Moroz has been diagnosed as suffering from Crohn’s disease which, it is asserted, will render his incarceration more onerous. Although it is by no means clear from the material before us in what way he will be so affected, I think that it is reasonable to assume that the suffering of this condition may well increase the burden of imprisonment in his case and will accordingly be taken into account.
With respect to the applicant Mendelis, her Honour stated:
“You were born on 21 August 1980 in the Ukraine. You were aged 20 to 21 years when you committed these offences. Your parents separated when you were seven years of age and you lived with your mother. In 1996 you came to Australia with your father and his second wife and their three children. Your mother remained in the Ukraine with your half sister, Christina. When you arrived in Australia you spoke little English. You attended the Prahran Secondary College for about 18 months. You lived with your paternal grandparents in St Kilda for about four years.
On 18 February 2001, you married, and you have one child, Ben Nathan, who was born on 19 June 2001. Your counsel, Mr Willis, tendered seven photographs of your son.
In 1999 you worked at the Victoria Market for around seven months selling leather goods. Thereafter you have had various jobs including chicken boner, car detailer, working in a Russian delicatessen and working as a painter. The first court appearance was in relation to an altercation about a girlfriend. The second court appearance, Mr Willis has submitted, although the offences include burglaries and thefts, they were committed in a different context than the offences for which I am to sentence you now, and I accept that.
You commenced smoking opium as a young teenager in the Ukraine. You took up using heroin in Australia when you were incarcerated at Port Phillip Prison. Mr Willis has informed the court that you successfully completed a methadone program and currently no longer use heroin or take methadone.[27]
…
I accept the submission made on your behalf by Mr Willis, that the offence of aggravated burglary in count 6 is at the lower end of aggravated burglary. I also accept his submission that there ought to be a deal of concurrency in respect of offences committed on the one day.[28]
…
I accept the submission made on your behalf by Mr Willis that I take into account in your favour that you are a youthful offender, being 20 and 21 years at the time you committed these offences, and you are now 24 years of age. Sentencing judges must as a matter of law give more weight to matters of rehabilitation than they otherwise would in relation to youthful offenders. I also take into account in your favour that any sentence I impose is not a crushing sentence, taking into account you are a relatively young man, you have served two years and eight months in prison. Earlier you had spent a short time in prison and in youth detention. Consequently, the sentences I will impose will be lesser than I ordinarily would have imposed, given the fact that you have been in custody for a lengthy period as a relatively young man.”[29]
On the basis of these findings, which were clearly open to the sentencing judge and upon which it is reasonable to now proceed, I consider that the individual sentences handed down were appropriate.
[27]Sentence T1071.
[28]Sentence T1071-1072.
[29]Sentence T1072-1073.
In the case of the applicant Moroz, in respect of the remaining offences encompassed by presentment no. C0403689.1, I would re-impose the individual terms.
I would direct that six months of the sentences imposed on each of counts 4 and 5 and four months of the sentences imposed on each of counts 10, 13 and 18 be served cumulatively upon each other and upon that imposed on count 6, thus creating a total effective sentence of six years’ imprisonment.
I would re-impose the individual sentences imposed on presentment no. C0403689.3 and the orders for cumulation made by her Honour, save for that in respect of count 28. This would create a total effective sentence for that presentment of seven years’ imprisonment.
I would direct that the total effective sentences for the offences encompassed by presentment no. C0403689.3 and presentment no. C0403689.1 be served concurrently.
This would result in an overall sentence of seven years’ imprisonment in
respect of which I would fix a non-parole period of five years’ imprisonment.
In the case of the applicant Mendelis, I would re-impose the individual sentences handed down in the court below, but make different orders for cumulation as follows:
· That four months of each of the sentences imposed on each of counts 1, 4 and 18 be served cumulatively upon that imposed on count 6.
This would create a total effective sentence of five years’ imprisonment in respect of which I would fix a non-parole period of three years.
SMITH AJA:
I agree with the orders proposed by Vincent JA for the reasons his Honour has expressed.
KING AJA:
I agree in the disposition of this matter proposed by Vincent JA and I do so for the reasons advanced by him in his judgment.
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