Excuse 2
‘I was obeying orders’
The killer excuse ‘I was just obeying orders’ was made famous in the Nuremberg trial of 21 senior Nazis following World War II. In that ‘trial of the century’ it was the second most popular excuse, after ‘I never knew’—as in, ‘I never knew millions were being killed in concentration camps’. The Nuremberg Charter, however, made it clear that obeying orders was not a complete excuse, just something that might reduce your sentence.
The fact that the defendant acted pursuant to the order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.
One of the accused, Hitler’s chief of the Wehrmacht Operations Staff, Alfred Jodl, asked, ‘I don’t see how they can fail to recognise a soldier’s obligation to obey orders. That’s the code I have lived all my life’. Jodl’s boss, Wilhelm Keitel, the Chief of Staff of the High Command of the Armed Forces and a member of the Secret Cabinet Council, told the tribunal: ‘Don’t you see, if Hitler ordered it that was good enough for me? After all I was only his office chief’. In the end both Jodl and Keitel were found guilty of all charges—including the new law of crimes against humanity—and hanged. The judges rejected their excuse, ruling: ‘The relationship of leader and follower does not preclude responsibility’ (The Nuremberg Trial, Ann and John Tusa (1983), Macmillan).
Half a world away and more than half a century later, an Australian jury heard a bizarre version of the ‘obeying orders’ defence. This time the orders that apparently could not be disobeyed, did not come from a superior army officer (or a ‘Fuhrer’) but from a seemingly psychotic, cocaine-snorting underworld figure. The Australian jurors in 2004 did not have to deal with crimes of worldwide significance, but, like the Nuremberg Trial judges, they did have to decide whether feeling forced to obey an order can excuse someone of responsibility for a crime.
The 55-year-old pensioner who resorted to this old soldier’s excuse desperately needed a killer excuse after confessing to shooting a man at close range—once in his flat, and then again after following him out into the street. Michael Goldman admitted he shot Alexander Kudryavstev on 10 July 2002, with a .32 Browning pistol.
Goldman said he first shot Kudryavstev soon after his victim walked into his (Goldman’s) flat. He shot at him again as Kudryavstev fled out the door, and again out on the street as the wounded man lay defenceless and terrified on the nature strip. Goldman admitted that on that nature strip he stood over Kudryavstev and fired the pistol about a metre away from his victim’s head.
There was no surprise Goldman had confessed to all this. It was pointless him denying it. There was a mountain of evidence against him.
For starters, Kudryavstev had miraculously survived and was willing to positively identify Goldman as his attacker on oath in court. Just as Goldman had fired his last shot from a metre away, Kudryavstev had turned his head. The bullet had entered his forehead and exited on the right side of his nose, just below his right eye. Amazingly it missed his brain. The bullet that had been fired into his abdomen had also, amazingly, not killed him, even though it had seared a path through his body and lodged inside his buttock.
Complete strangers out walking in the increasingly gentrified Melbourne bayside suburb of Hampton had also seen Goldman stand over Kudryavstev and shoot him in the head on the nature strip.
But the biggest reason it was pointless for Goldman not to confess to shooting Kudryavstev was that Kudryavstev had been wired-for-sound during his near-death experience. A police ‘bug’ hidden underneath Kudryavstev’s clothing had recorded almost everything about his shooting—Kudryavstev’s pleading to be allowed to live, as well as Goldman’s angry accusations.
Ironically, the bug didn’t pick up the loudest noise, the most damning piece of evidence of them all—the gunshots. The high-tech recording equipment had been set up only to pick up human voices. So on the tape, gunshots are marked by ominous silences.
Even that was not much of a problem for the prosecution given that shortly after shooting Kudryavstev, Goldman had confessed. He had walked up to a policeman talking on his mobile phone, slapped the phone out of the officer’s hand and declared, ‘I’m responsible. I did it’. Goldman even acknowledged that the silences on the tape were when he had fired the pistol.
Police recorded Goldman cordially greeting Kudryavstev as he entered his flat. After a short silence Kudryavstev is heard screaming and begging for his life. Repeatedly, pathetically he denies he has done anything to deserve being shot. After being hit in the upper abdomen, Kudryavstev overturned the kitchen table and used it as a shield.
This is an edited English translation of what ‘Misha’ Goldman said to Kudryavstev in Russian as recorded on the police listening device taped to Kudryavstev’s body. It starts soon after Kudryavstev rang the bell of Goldman’s flat at 1.30 pm on 10 July 2002.
Goldman: Yes. Hi.
Kudryavstev: Hi. How are you?
Goldman: You look so happy. What car did you come here in?
Kudryavstev: My wife’s. One car…so inconvenient.
Goldman: We are going to that…What’s the name of that place?
Silence. [The unrecorded gunshot.]
Kudryavstev: [Screaming, begging] Misha!! What for, Misha!! This is not my fault!
Goldman: [Calmly] Whose fault is it then?
Kudryavstev: [Begging, desperate] I didn’t do it! Misha. What are you doing? I didn’t do it. I swear! Misha, I didn’t do it.
Goldman: [Firmly] On the ground! On the ground!
Kudryavstev: Misha, I didn’t do it.
Goldman: Tell me everything.
Kudryavstev: Misha, I didn’t do it!
Goldman: Tell me, bastard. Who did it?
Kudryavstev: Don’t shoot! I didn’t do it.
Goldman: Tell me, bastard. Tell me as you are sitting there now, bloody bastard!
Kudryavstev: Misha, I didn’t do it, I swear.
Goldman: Tell me, bastard.
…
Who fucking let me down?
Kudryavstev: Misha. I didn’t do it! I swear by my mother…
Goldman: Who did it then?
Kudryavstev: I don’t know.
Goldman: Wait a minute. You have been saying things against me all the time.
Kudryavstev: Are you stupid? Why would I say something against you?
Goldman: I am not stupid.
Kudryavstev: Misha. I haven’t said anything against you.
…
You are wrong! Misha!
Goldman: Stop!
Kudryavstev: Misha. It’s not my fault! Misha, I didn’t do it. You are making a mistake…Misha, I swear by my mother. I didn’t do it.
Soon after this Kudryavstev escaped out of the flat as Goldman fired another shot at him, narrowly missing him and hitting the door as it closed behind Kudryavstev. He followed the wounded man out into the street and when Kudryavstev fell on the nature strip, Goldman shot him again. The only English words on the tape are Kudryavstev talking to shocked onlookers after miraculously surviving being shot in the head and after his shooter had walked back into his flat.
Kudryavstev: Help me! Help me! Help me…Somebody shoot me. Michael Goldman shoot me.
Kudryavstev told Goldman’s trial that he had committed dozens of burglaries with Goldman in the 18 months since they had met.
He said, however, that shortly before he was almost shot dead, he had decided to end his life of crime. His wife had insisted on it—for their children. Kudryavstev said he decided that the only way to end his criminal ways was to turn police informer. He said the final straw had been Goldman’s proposal to make more money by turning to armed robbery. Kudryavstev said he had been turned off guns by, ‘three years, six months and 13 days’ fighting for the Soviet army in Afghanistan in the 1980s.
The prosecution said Goldman’s motive for shooting Kudryavstev was that he suspected the lieutenant of his three-man burglary squad of being a traitor, of informing on him to police. (‘You have been saying things against me all the time.’) His suspicions, the prosecution said, had been right, he just hadn’t realised Kudryavstev was already wearing a police bug.
Kudryavstev told the court that when Goldman shot him in the face, he momentarily thought he had died.
Kudryavstev: My power left my body.
…
When I saw him [Goldman]…move his finger on the trigger, I just moved my head.
…
I felt bullet punch me in my face…I believe I died—when the bullet punched me in the middle of my face, blood covered my eyes.
He said he had told onlookers ‘Michael Goldman shoot me’ because he thought he was about to die. Choking back tears he said, ‘I wanted to leave evidence about my killer’.
The thing about the charge of attempted murder is that it is notoriously difficult to prosecute. You would think most cases of attempted murder would be easier than murder cases to prove given that most often the victims can tell their tales, can accuse the accused of stabbing/shooting/strangling/poisoning them. Sometimes, of course, victims can do no such thing. They might be in a coma or have no memory of the incident, or not be confident enough to properly identify their attacker. In poisoning cases, the victim might have no more than suspicions. But, even when victims can identify the accused as their attacker, attempted murder is often more difficult to prove than murder. The most frequent problem for prosecutors is the attacker’s ‘intention’. In murder cases in Australia, prosecutors have to prove, beyond a reasonable doubt, that the accused intended to kill OR really seriously injure. To get an attempted murder conviction, however, the prosecution has to prove, beyond all reasonable doubt, that the accused tried to kill. That’s it. Proving they tried to inflict really serious injury is not enough. The accused is then only guilty of intentionally causing serious injury. (If it’s a really serious injury, the judge will take that into account in sentencing.) The problem for prosecutors is that juries are reluctant to tar someone as a ‘wannabe’ murderer when their victim is well enough to give evidence in court.
Still, if any attempted murder prosecution looked a ‘dead-set cert’—a ‘gimme’—it was this one. It is hard to think of a more apparently clear-cut prosecution case of attempted murder. The only real mystery appeared to be why Goldman had not pleaded guilty in the hope of getting at least a couple of years knocked off his sentence for not wasting everyone’s time—and taxpayers’ money—with a trial.
What would his excuse be? How do you fight damning evidence from your victim, your own admission, evidence from passers-by and a dramatic police recording.
In his opening address to the jury, Goldman’s barrister Peter Chadwick hinted at his client’s excuse, why he was pleading ‘not guilty’ to attempted murder. Mr Chadwick told the jurors that in the end they would not be able to discount the reasonable possibility that Goldman’s will had been ‘overborne’ by someone with a ‘much stronger will’. That he had acted under orders.
The ‘superior’ who gave Goldman the un-disobeyable order to kill, was a notorious underworld stand-over man called Nikolai Radev—also known as Nik the Russian and Nik the Bulgarian. Goldman claimed that moments before Kudryavstev entered his flat, Radev gave him a loaded pistol, fixed him with a psychotic look, ordered him to kill Kudryavstev, revealed an automatic rifle under his raincoat and then hid behind a sliding door.
Goldman told the jury he had socialised three or four times with Radev, meeting him at Russian restaurants. He said Radev would talk about his time as a wrestling champion back in his homeland of Bulgaria. Goldman said he knew of Radev’s fearsome criminal reputation but was friends with him anyway.
Goldman: I know that he was several times in jail for different offences. That he was very feared by enemies. He was like a very good friend and a very bad enemy.
Chadwick: Why did you socialise with him?
Goldman: You see, I have friends from different—all different aspects of life and I think when anyone watching movie, you sympathise with crooks like Robert De Niro roles or something and I just like to socialise with different people and that’s just it.
He acknowledged that his friend almost always carried a gun and was feared, ‘By criminals but not by usual civilians…no harm to civilians’.
Goldman said that in the 18 months he had known Kudryavstev, he had often struggled to believe some of Kudryavstev’s stories about his past in the Soviet Union.
Goldman: He told me he was in the army. He finished two university degrees in the same time but for very short period and he went to fight in Afghanistan. He was in special operations service, something like this…in English it’s like paratroopers who jump from the sky and make trouble on earth. After that he was taken to Soviet police, which was called militia and in three years’ time he was a major. Major is very nearly general. It just seems to be a bit unreal.
Chadwick: A bit unreal.
Goldman: Yes.
Chadwick: Did he always tell you the same stories about himself or did he tell you different stories?
Goldman: No, he told me different stories…
Chadwick: In the time that you had known Mr Kudryavstev, he has told us that you committed crimes together.
Goldman: No, never.
Chadwick: He says you committed burglaries together.
Goldman: Never.
Chadwick: He said robberies and a lot of different crimes.
Goldman: That’s a pack of lies…
Chadwick: Did you know his full name?
Goldman: Alexander Kudryavstev. If it’s his real name…
Chadwick: He [Kudryavstev] has told us that the .32 pistol [the gun Goldman used to shoot Kudryavstev] that he had seen it with you, that you had it?
Goldman: No, he couldn’t.
Chadwick: Was it yours?
Goldman: No.
Chadwick: Had you seen in before 10 July [the day of the shooting]?
Goldman: No.
Chadwick: He said that you had used the .32 during crimes and it was seen during preparation for crimes?
Goldman: No, I didn’t do crimes. I don’t need to do crimes. I’m sorry.
Kudryavstev had told the court that a few weeks before he was shot, he, Goldman and another man had robbed a clothing factory owned by people who turned out to be friends of Radev. He said that a couple of days before his shooting, Radev had angrily demanded the clothes back at a meeting with him and Goldman.
Goldman agreed that he, Kudryavstev and Radev had met but denied robbing the clothing factory with Kudryavstev. He said he had only set up the meeting with Radev as a favour to Kudryavstev to help him placate the very angry Radev. He said the first he heard of who had been stupid enough to rob a factory of someone connected to Radev, was when a worried Kudryavstev approached him to act as a go-between.
Goldman: Alexander found me and he looked stressed and he asked me if I knew a criminal by name Nik Bulgarian, which is Nik Radev and if I do he said, ‘Nik is looking for me in relation to this burglary…’
He ask me to connect them, to meet them and be present because he was very scared of him [Radev].
He ask me if I can negotiate with him to finish this matter peacefully.
Goldman said the three of them met at a café in Acland Street—one of Melbourne’s most popular tourist precincts—about a month before the shooting.
Chadwick: What was said at this meeting?
Goldman: Generally it was Nik demands [Kudryavstev] to return the goods and that the end of the story.
…
Alexander said that it’s impossible…He’s sorry he done this. He said, ‘I didn’t know who I burgle, but the goods I sold and the money I give to lawyers to pay for coming court cases…Mr Radev said, ‘If like this, there’s nothing to talk about’.
Far from being the main negotiator at this meeting—as Kudryavstev had claimed—Goldman said he just sat and watched the other two.
Goldman: I was just sitting. See, I feel like if I wouldn’t help Alex, I would feel as a traitor and I felt it won’t be nice of me if I leave him in such situation. So I just decide to be present because I know Nik’s violence and he was furious when he found out that…
Chadwick: What did you try to do?
Goldman: Just to make peace between them and, if that’s possible, to return the goods.
Goldman told the jury that five days before the shooting, he, Kudryavstev and a third man had been arrested on suspicion of burglary. He said they were separately interviewed and then released. The prosecution said this separate interview had sparked Goldman’s suspicions of Kudryavstev—his belief that his Number 2 was a traitor—but Goldman denied this.
Goldman told the jury that the day before he shot Kudryavstev, he met a furious Radev in a park. He feared Radev was beginning to suspect him (Goldman) of subor-dination, even of betrayal.
Goldman: He [Radev] was—how to say—very upset and he said that police found the goods [stolen from his friend’s factory] and he said Mr Kudryavstev was lying to us and he look at me with sort of doubt.
Justice Redlich: Just explain that would you. He looked at you with?
Goldman: [Slowly and loudly as if talking to a deaf person or maybe to an imbecile] With DOUBT.
Justice Redlich: Doubt?
Goldman: Doubt.
Chadwick: So he looked at you, you say, with doubt?
Goldman: Yes.
Chadwick: ‘Doubting’? What do you take that to mean?
Goldman: Like our relations give a crack.
Chadwick: Sorry, I missed that last word—your relations were?
Goldman: Like cracked, like the crack.
Chadwick: In this meeting in the park with Mr Radev, what was Mr Radev’s mood?
Goldman: Very bad mood. He was, how to say? His eyes were, he was obviously…He was very angry.
Goldman said he met Kudryavstev that night at a café but denied Kudryavstev’s claim that was when Goldman talked about using guns in robberies to make more money.
Goldman: That’s a pack of lies.
He said all they had talked about was how Kudryavstev’s lie—about having sold the clothes he stole from the factory—had angered Radev and put Goldman in an unenviable position.
Goldman: I asked him, ‘Why you put me into such a mess and how can I see now in the eyes of my friends? What will they think of me and what am I going to do now?…
He said, ‘Now you think yourself. You are smart enough.’ And he show no interest in me any more. I felt like—I’m sorry—I was pulled with excrements. I was swearing by myself for my naiveness, trust in people and for my stupidity.
Goldman said he demanded Kudryavstev drive him back to his car and then: ‘I said to him, “I don’t want to see you any more in my life and good luck to you” and no goodbye, no shake hands’.
He said that the next morning he met Radev again.
Goldman: I said, ‘I am sorry. You were right’, and I told him that I broke up with him [Kudryavstev] and I just don’t want to know about him…
He [Radev] say to me, ‘Can you organise another meeting? I want to see his eyes now’.
Goldman said he explained that he had broken off completely with Kudryavstev but Radev insisted on him meeting Kudryavstev again anyway.
Goldman: I said, ‘What are you going to do to him?’ He said, ‘Nothing wrong. Just to see his eyes’, and, as I said, I wasn’t happy with the dirty look he gave me…[but] he promised that nothing wrong he is going to do and I decide to invite them both to my place…
His reason for meeting Kudryavstev at his home raised a few eyebrows in court.
Goldman: You see, we brought up in same culture—Bulgarian and Russian. It is close neighbours…If you invited to somebody’s home, you have to behave yourself and you can’t do wrongs in that place.
…
I expect that Nik will tell him what he thinks of him and tell him the same thing maybe, or maybe he will force him to repay what he took but in a peaceful, nice way. And, plus, Alexander is two-and-a-half times bigger than Nik so I wasn’t thinking anything bad going to happen.
If that was the real reason, Radev was about to sorely test Goldman’s faith in the good manners of Russians and Bulgarians in each other’s homes. What Radev did, at least according to Goldman, in the two hours after arriving at Goldman’s flat about 11.20 am on 10 July 2002, went way beyond bad manners. It was like something out of one of the more surreal black comedy gangster movies, say, Quentin Tarantino’s Pulp Fiction.
Goldman said that after his guest boasted for a bit about his wrestling exploits back in Bulgaria, he left the flat for about 30 minutes and returned with some cocaine. This he divided into lines on one of his host’s plates using his Bankcard.
Goldman: He made two lines, two small lines and offered me one and said, ‘Try once, nothing wrong’, and I said, ‘I’m scared. High blood pressure. I’m sorry’.
About 1 pm—with Kudryavstev due at 1.30 pm—Radev, according to Goldman, snorted another line of cocaine. Then Radev went out again, returning with an ‘expensive raincoat on him and a beret of the same material’ over his grey-red tracksuit. The raincoat, according to Goldman, was a ‘bit bulky’.
Goldman said he felt hungry so he asked his drug-snorting, raincoat-clad guest if he wanted something to eat.
Goldman: He politely refused. He said, ‘When you using cocaine, you have no appetite’.
He said Radev then produced a gun ‘from behind his pants on the waistline’.
Chadwick: Can you describe that gun please.
Goldman: That’s the gun that was shown here…[A .32 Browning pistol was handed to Goldman. A bizarre detail to an already bizarre story was that this pistol had a tiny swastika scratched into it.] Probably. I’m not sure. They all look the same to me, handguns.
Goldman said Radev started sorting bullets on the kitchen table.
Goldman: He put the bullets on the table and I said, ‘What do you think you are doing?’ and he said, ‘Too many—he said different word—bad people around. I have to carry it every day because some of them want to get me’. I say, ‘Listen, why are you doing this in my kitchen?’ He said, ‘Oh, just nothing to do. Don’t worry. I won’t do anything wrong’, and smiled friendly but I felt already uncomfortable.
Chadwick: What did Nik Radev do?
Goldman: He was taking out and putting the bullets back in. He said they were all the same calibre but different brand and sometimes it can happen, he said, if you use the wrong bullet for this gun, it can blow up and injure your hand, something like this and he was sorting them out.
Chadwick: He was what?
Goldman: Like sorting them out. I am not sure. I was half turned to him. I was just looking by one eye. Just one eye and was very uncomfortable.
…
I said, ‘Promise me that you are not going to do any wrong things here.’ And he said, ‘No, no,’ and he sort of laughed shortly and said, ‘Don’t worry, I won’t’.
Chadwick: What were you doing whilst this was happening?
Goldman: As I said, I was slicing the tomatoes. I put the egg in the saucepan and put it on the stove and lit the gas.
Chadwick: When you saw the gun in your kitchen, what was your reaction?
Goldman: I suspect that Nik might…threaten him [Kudryavstev] or something but I knew he was always carrying guns but why he should do it. It is bad manner to do it in somebody’s house.
Things really got scary, according to Goldman, in the moments before Kudryavstev’s arrival at about 1.30 pm.
Chadwick: As 1.30 approached, did anything happen?
Goldman: Yes, about at 1.30 Alex ring and said that he going to be in a second, he is parking his car, and…as I put the phone down and I coming out of the lounge room to the kitchen and our eyes meet—Nik and I—and I saw the face of, I would say, psychotic.
He opened the raincoat and there was like leather strip—and I would say an automatic rifle—and he just done one move and it was in both hands and he shove it in my face. Didn’t touch, but…I was frozen to the spot.
I didn’t even have time to be terrified—it comes a bit later.
Then came the un-disobeyable order.
Goldman: He started whispering loudly saliving in my face. He said, ‘All you have to do, just grab this, squeeze and pull’. He said, ‘Give him one in the head’—this is abbreviation— ‘and I get rid of the body. Come on! Do it!’
Goldman said he was stunned and terrified and didn’t know what to do when Kudryavstev knocked on his front door while Radev hid behind a sliding door.
Goldman: I was not able to analyse the situation what was happening and just become—it wasn’t me—it was robot. Robot remote-controlled by the automatic rifle…
And the same second Alex knocking on the door and Nik jump with a twitch, grimace on his face. He jumped behind…a sliding door which connected kitchen and lounge room and it was open like this, he jumped behind it and shut it, left it open…and looked from there.
When I open the [front] door, he [Radev] hide himself…just I saw half his face with the barrel of it [the automatic rifle] and I remember I make grimace as well—just suddenly come on my face. It was like idiot smile. That’s all my reaction.
I don’t know. Just when I now can do it in a slower motion what happened that time, I might hate myself but at that time you have no ability even to think.
So, Alex said something, he hugged me and I hugged him and I was avoiding to see his eyes and he had no way—he just sitting—he sit in the chair…exactly opposite to where the gun was.
Chadwick: Where was the gun?
Goldman: The gun was where Nik left it on the table. I don’t remember if there was a tea towel on it.
The prosecution said that Goldman had used the tea towel as a silencer (hardly the action of an unthinking robot mindlessly obeying an order) but that this had only helped jam the gun.
Goldman: I don’t remember this [the tea towel], but I remember I grabbed the gun and I shoot in Alex’s direction but beforehand I don’t know—I understood it after—subconsciously I never had in mind, I knew I couldn’t kill.
I can’t kill and I wouldn’t kill and I didn’t have in mind to kill him or injure him or do any harm but, as I said, I was a robot and I just, I was trying not to hit in the head or upper, I mean torso and I was talking something, just out of the head.
I grabbed the gun and as he was sitting, I shot in his stomach.
And, almost immediately, he smashed everything that was on the table. That was his first move and second he lift the table and put it in such a position…so he was squatting behind the table and for the first time, he didn’t look at me, he looked down.
…
At the same time Nik was pointing gun at me and I was standing behind the table with the gun like this [demonstrating] and his head was like this [demonstrating] and the ability to understand the situation and the fear, I was horribly terrified.
He claimed that if he had really wanted to kill Kudryavstev he could easily have done so in that little flat.
Goldman: So if I want to shoot him, I could do it many times, but I didn’t.
Goldman said he did not realise his first shot had hit Kudryavstev and claimed that his seemingly angry, vengeful demands recorded by police had in fact just been mindless, meaningless robot-talk.
Goldman: Honestly I didn’t know that I shot him, that the bullet penetrated him because he didn’t show any pain, just was sort of struggling.
And he said, ‘It’s not me. It’s not my fault. What are 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. And we start talking.
All the time, unbeknown to the terrified Kudryavstev, Goldman said he was using him as a shield against Radev who was supposedly still hiding behind the door making sure his soldier carried out his order.
Goldman: And I seen it twitch his [Radev] face and he [Radev] was behind Alex and when he get up he start manoeuvring. There is not much space for manoeuvring and I was hiding from Nik behind Alex and behind this table. And…I call out, ‘Not me, who then?’ And at that moment, I caught Nik become interested in what he is saying and I just gesture to him and maybe I call ‘Vasa’. It is a name if you don’t want to mention in public somebody’s name, you go ‘Vasa’ like maybe here you call by John or something. So I see he become interested in it.
Goldman said he then let Kudryavstev escape the flat, only shooting at the door he had just fled through because he was afraid Radev was going to shoot.
Goldman: There was a moment when Alexander just make intention to go past me, to jump through the window, something like this, but I think he misjudge the distance and everything.
…
He [Kudryavstev] opened the door and just opened one door, opened security door, and run away. I didn’t see him staggering…Then at the same time Nik—I thought he was going to shoot and I shot in the door when Alex was already out.
Radev apparently then issued a second order.
Goldman: He [Radev] started swearing on me and put the gun to my face, to different parts of [my] body and he said, ‘How come you let him go?’ I said to him, ‘I will never mention your name. He didn’t see you. Just, please go. I don’t want to, I don’t want any more. I have enough trouble.’
…
I ask him why all this happened.
…
So Nik was pushing the barrel [of his gun] in my stomach and said, ‘Go and finish him because you know what is next going to happen to you and I—abbreviation—your family and you’ and swear at me and it was like maniac face.
This time Goldman said he did not automatically obey but came up with a plan to make it seem as if he was obeying without really doing so.
Goldman: I knew what I am doing already. I should get out of the flat and attract as many people as I could, making noise, and I think—I don’t remember—I was shouting something, yelling.
And there were quite a few people around him watching and he [Kudryavstev] was squatting, squatting down and his hands on the ground. He was trying to get up. I come to him from behind…
So I come to Alex—if this is his head [indicating] so from this distance—his head so I shoot like this [demonstrating] twice and he—I don’t why. He just fall like this [demonstrating].
Justice Redlich: Mr Goldman, you are saying that you deliberately aimed away from his head?
Goldman: Yes. I was shooting to miss. And plus I wanted to attract more people, police, to prevent killing or injuring.
Goldman said that all the time Radev was watching, making sure his second order was carried out, while hidden behind some curtains in the flat.
Goldman: Nik was with this remote control. He took the position near the open window and I feel cold behind my shoulders when I was walking there but I saw people. I was sure he wouldn’t do it. He wouldn’t shoot.
…
Chadwick: How did you know Mr Radev was at the window with the rifle?
Goldman: I saw him. He took the position there when he told me his last tirade. He said, ‘Go finish him because your family and you…
Justice Redlich: Just tell us the exact words he used, Mr Goldman.
Goldman: He said, ‘Go, cunt, quickly and finish him. I fuck you. I fuck your family’, and something else. That is what, like, what I remember. As I said, I was terrified, horribly terrified and I was robot. Only that one can understand me who was in my position.
Chadwick: After you fired the gun in the street, you said you fired twice?
Goldman: Yes.
Chadwick: What did you do then?
Goldman: I walked away. There was a couple of women from the red four-wheel drive.
Chadwick: Where did you go to?
Goldman: I went back to the flat…I understood that I am in big trouble and I didn’t care if he [Radev] killed me now.
…
I didn’t see Nik there [at the flat] and I quickly run around…In the toilet was vomit. So I flush the toilet, pick up the phone. No, first of all I left the gun on the floor in the kitchen. After I check the flat because if Nik is there and see me with gun he can shoot straight away. So I put the gun on the floor in the kitchen where they found it…took the phone and ring the police and explaining the situation. I didn’t want to—he asked me what his [Kudryavstev’s] surname was—I didn’t want to [tell him]—it will take another 10 minutes to spell his surname, so I didn’t. I give the address. I gave my name and I hope the police will come soon. When I put the phone back on that bench…with the glass surface…I found the bullets.
Chadwick: How many bullets?
Goldman: Could be dozen, could be 10, could be eight. I don’t know, something and I grab as many as I could put in the pocket and the rest I took in the other hand, was two or three, and I saw the police already on the street and when I was walking I didn’t think much about bullets because I had problems a bit bigger than bullets in my hand, so I dropped them on the floor in the kitchen and went back to where the police was to be arrested and I saw him talking on the phone and it was just my relief of my stress and I said something, ‘You don’t need the phone’ and just slapped the phone and the policeman said, ‘Steady on, mate’, and I said, ‘I’m responsible. I did it’, and he said, ‘Just stay where you are’, and I had a packet of cigarettes just open in my pocket with the keys, with handkerchief, with the money, with the bullets and I was smoking maybe three cigarettes for five minutes, being three or four cigarettes one by one. So…Can I have some water please?
Chadwick: Mr Goldman. How many times did you fire the gun?
Goldman: Four times.
Chadwick: Did you have any problems in the operation of the gun?
Goldman: No.
Chadwick: How did you fire the gun?
Goldman: Just as I was told—squeeze and press.
Chadwick: At any time did you have to reload the gun?
Goldman: I don’t know about this.
Chadwick: Clear any jamming or anything?
Goldman: No, it wasn’t jamming.
Justice Redlich: Mr Goldman, what do you mean, ‘I don’t know about this?’
Goldman: About what?
Justice Redlich: Mr Chadwick asked you if you had to reload the gun.
Goldman: I don’t know about this. I was just re-pressing and maybe I had to reload. I don’t know. I didn’t understand your question as well. I’m sorry.
Justice Redlich: Mr Chadwick asked you if you had to reload the gun and your answer was, ‘I don’t know about this’.
Goldman: Yeah. Maybe I don’t know what means ‘reload’.
Chadwick: You told us you fired the gun, you tell us, four times?
Goldman: Four times by squeezing and pressing. It wasn’t very hard.
Chadwick: Mr Kudryavstev has told us that out in the street, he saw you take some bullets from your left pocket and put them in the magazine and put the magazine back in the gun.
Goldman: No.
Chadwick: Did you take any bullets from your pocket out in the street?
Goldman: No.
Chadwick: Did you do anything with the magazine out in the street?
Goldman: No.
Chadwick: What about in the kitchen?
Goldman: No, I put the gun as it was after the last shot and just put it on the floor.
Under cross-examination by prosecutor Boris Kayser, Goldman stressed that Radev’s whispered, spitting order to him to give Kudryavstev ‘one in the head…do it’ was like a yelled order.
Goldman: He said, ‘All you have to do, just grab this, squeeze and pull.’ He said ‘Give him one in the head…and I get rid of the body. Come on! Do it!
I was not able to analyse the situation, what was happening and just become—it wasn’t me—it was robot. Robot remote-controlled by the automatic rifle.
But he said, despite his fear and robotic state of mind, he had deliberately aimed low so as not to kill Kudryavstev.
Goldman: If I wanted to kill him, I could do it in the kitchen many times…but I didn’t.
Goldman told the prosecutor once he left the flat, he had not even considered fleeing instead of shooting Kudryavstev.
Goldman: To run away? To run away! I have to run away to Mars from Nik Radev.
…
I was still scared. Do you understand what it is to be under the gun, under the loaded gun, owned by psychotic maniac? Do you understand, sir?
Goldman said he could not understand why Radev had not killed Kudryavstev himself.
Mr Kayser made it clear the prosecution did not believe that Radev had even been in Goldman’s flat at the time he shot Kudryavstev.
Kayser: I suggest to you that the story of Nik Radev is just a fairytale. It didn’t happen.
Goldman: It did happen, sir.
The prosecutor ended his cross-examination with what police believed was Goldman’s real motive.
Kayser: I suggest to you that the reason you did your best to kill him [Kudryavstev] was because you believed he was informing on you to police.
Goldman: I didn’t even think about it like this…I didn’t even think about this. How many times do you want me to repeat it, and why are you making this clown show? Tell me please.
Neither the prosecution nor the defence could call Radev to check Goldman’s story because just over a year earlier, the 48-year-old had become one of a string of gangsters murdered during an underworld ‘war’. Radev was shot about seven times from close range while sitting in his black late-model Mercedes coupe just metres from a suburban shopping strip. A police source told the Herald Sun: ‘He had so many holes in him, he looked like Swiss cheese’.
After deliberating for a day and a half, Goldman’s jury declared him guilty of attempted murder, rejecting his ‘obeying orders’ excuse. Goldman showed no emotion.
Then the jury discovered that the man they had just found guilty was not quite the innocent he had made out. They heard that since 1994, Goldman had been convicted of intentionally causing serious injury, intentionally causing injury, making a threat to kill and threatening to inflict serious injury. Interestingly—in the light of his denials of being the head of a robbery gang—the jury learnt he had also been convicted of attempted theft and being a reputed thief found loitering in a public place.
The ‘intentionally causing serious injury’ conviction in 1994 had been for stabbing someone in the stomach after lying in wait outside a reception centre. The ‘threat to kill’ conviction came after he was found guilty of threatening to kill the owner of a panel-beating business. The prosecution had alleged the threat came after the owner refused to pay a $500 protection fee. Goldman said it was made during a business dispute over some imported Japanese cars.
Just before he was led away to the cells, Goldman turned to his young third wife, shrugged and smiled in apparent resignation.
When it was his turn to hand down judgement, Justice Redlich found Goldman had organised the burglary of Radev’s friend’s factory. The judge said there were compelling reasons why Goldman’s explanation of how he came to shoot Kudryavstev could not ‘be entertained as a reasonable possibility’.
Justice Redlich: I am satisfied that on each occasion that you discharged, or attempted to discharge the pistol, you were not acting under any coercion from Mr Radev.
Mr Kudryavstev was lured to your flat by you with the intention that you would kill him. You believed that Mr Kudryavstev had informed on you in relation to your criminal activity. Your anger and your desire to kill Mr Kudryavstev is evident upon listening to the recording.
The judge said apparently the only thing that stopped Goldman firing more times at Kudryavstev in the flat was that the gun jammed—probably because the tea towel he was using as a silencer was caught in the breech of the pistol.
The judge said he had taken into account that Goldman had endured a hard childhood as a result of rife anti-semitism in the Soviet Union. He noted that since immigrating to Australia in 1980, Goldman had earned a diploma in electronics and had worked various jobs including assembling telecom-munications equipment, running a pawnshop, making curtains and selling insurance.
Justice Redlich: You are an astute and articulate man who, I accept, has a deep concern about your family’s welfare. You have assisted many of your former countrymen who have experienced difficulty in assimilating within Australian society. You have proved yourself to be a loyal friend.
The judge also accepted that Goldman would do it harder than most prisoners in Australian jails because he had tried to kill a police informer. But Justice Redlich said Goldman had not shown any remorse for shooting Kudryavstev.
Justice Redlich: Your motive for attempting to kill Mr Kudryavstev was to stop him informing to police to prevent him being a witness against you or any other persons jointly involved with you in criminal activity. You viewed Mr Kudryavstev as disloyal—as one who broke the code of silence…
I must view your decision to kill a potential witness against you as a serious case of attempted murder.
The fact that Mr Kudryavstev was, by his own admission, a criminal, is irrelevant…There is no separate system of justice for criminals. The full weight of the law must be brought to bear whether the victim is a law-abiding citizen or a criminal.
…
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…
Mr Goldman. For the attempted murder of Alexander Kudryavstev, I sentence you to 14 years imprisonment and I direct that you serve a minimum of 11 years imprisonment before becoming eligible for parole.
Remove the prisoner.