Christopher John Miles v The Queen
[2014] ACTCA 18
•3 June 2014
Christopher John Miles v The Queen
[2014] ACTCA 18 (3 June 2014)
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against conviction – whether conviction was unsafe and unjust – whether open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offence
CRIMINAL LAW – GENERAL PRINCIPLES – conspiracy to commit aggravated robbery – scope of agreement to commit offence – whether there was evidence that agreement encompassed being in company – whether there was evidence that agreement encompassed use of force – whether there was evidence that agreement encompassed knife – whether there was evidence that agreement encompassed pinch bar
| Criminal Code 2002 (ACT), s 48, s 309, 310 | |
| Ahern v The Queen- (1988) 165 CLR 87 Birrell v Astor (1940) VLR 180 Delk v R (1999) 46 NSWLR 340 Dickson v The Queen (2010) 241 CLR 491 FP v R [2012] NSWCCA 182 Gemmell - (1985) 1 CRNZ 496 Gerakiteys (1984) 153 CLR 317 Giorgianni v The Queen (1985) 156 CLR 473 Kelly v The Queen: (1989) 23 FCR 463 Markou v R: [2012] NSWCCA 64 M v The Queen (1994) 181 CLR 487 Peters v R (1998) 192 CLR 493 R v Ansari (2007) 70 NSWLR 89 R v Barbouttis (1995) 37 NSWLR 256 R v Brougham - (1986) 43 SASR 187 R v Button; R v Griffen [2002] NSWCCA 159 R v Caldwell (2009) 22 VR 93 R v Crozier, NSW Court of Criminal Appeal 8 March 1996, unreported R v Hillier (2007) 228 CLR 618 R v Leonie (1999) NSWCCA 14 R v LK- (2010) 241 CLR 177 R v Moore [1988] 1 Qd R 252 R v O’Brien: (1974) 59 Cr. App. R. 222 R v Orton [1922] VLR 469 R v RK and LK [2008] NSWCCA 338 R v Rogerson- (1992) 107 ALR 225 Rolls v The Queen [2011] VSCA 401 SKA v The Queen (2011) 243 CLR 400 WA v R [2011] ACTCA 4 Western Australia v Maria Mona Dick [2006] 161 A Crim R 271 Orchard G (1974) “Agreement in Criminal Conspiracy - 1”, Criminal Law Review 297 | |
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 58 of 2012
No. SCC 395A of 2011
Judges: Murrell CJ, Penfold and Ross JJ
Court of Appeal of the Australian Capital Territory
Date: 3 June 2014
IN THE SUPREME COURT OF THE ) No. ACTCA 58 of 2012
) No. SCC 395A of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CHRISTOPHER JOHN MILES
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Murrell CJ, Penfold and Ross JJ
Date: 3 June 2014
Place: Canberra
THE COURT ORDERS THAT:
The appeal against conviction is dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 58 of 2012
) No. SCC 395A of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CHRISTOPHER JOHN MILES
Appellant
AND: THE QUEEN
Respondent
Judges: Murrell CJ, Penfold and Ross JJ
Date: 3 June 2014
Place: Canberra
REASONS FOR JUDGMENT
MURRELL CJ
I agree with the reasons of Ross J.
I certify that the preceding paragraph numbered one (1) is a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.
Associate:
Date:
IN THE SUPREME COURT OF THE ) No. ACTCA 58 of 2012
) No. SCC 395A of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CHRISTOPHER JOHN MILES
Appellant
AND: THE QUEEN
Respondent
Judges: Murrell CJ, Penfold and Ross JJ
Date: 3 June 2014
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J
I agree with Ross J, and for the reasons he gives, that the appeal against conviction should be dismissed.
I certify that the preceding paragraph numbered two (2) is a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Associate:
Date:
IN THE SUPREME COURT OF THE ) No. ACTCA 58 of 2012
) No. SCC 395A of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CHRISTOPHER JOHN MILES
Appellant
AND: THE QUEEN
Respondent
Judges: Murrell CJ, Penfold and Ross JJ
Date: 3 June 2014
Place: Canberra
REASONS FOR JUDGMENT
ROSS J
On 5 December 2012 a jury found the appellant guilty of conspiring with his co-offender (Ramos) to commit the offence of aggravated robbery. The appellant was sentenced on 19 March 2013 to 6 years and 9 months imprisonment with a non-parole period of 4 years and 6 months. He appeals both the conviction and the sentence. The sentence appeal has been adjourned pending the completion of related proceedings and this decision only deals with the conviction appeal.
The Crown case at trial was that the appellant entered into an agreement with Ramos to commit an aggravated robbery at the Woolworths supermarket at Kambah. The aggravation element was being in company while armed with offensive weapons. The agreement was said to have been arrived at in the course of telephone calls between the appellant and Ramos on 5 and 6 January 2011 and during a meeting between them on 5 January 2011. Prior to this meeting the appellant had conducted surveillance of the Woolworths supermarket, monitoring money movements at various times during the week. Pursuant to the agreement, on the evening of 6 January 2011, the appellant and his co-offender rode pushbikes from the appellant’s premises in Kambah to an area near Woolworths. The appellant was carrying a zip up bag. They placed the two pushbikes and the bag under a bush and walked in the direction of Woolworths. The police, having intercepted the telephone calls between the appellant and Ramos on 5 and 6 January, then arrested both men and the bag was seized. Ramos had a knife in his possession. The bag contained a black jumper, two beanies, a pinch bar and a pair of gloves and two pieces of material. The appellant participated in a record of interview with police and made a number of admissions.
There was no dispute at the trial that the appellant and Ramos had entered into an agreement to commit an offence and that an overt act had been carried out pursuant to that agreement. The issue in contention, both at trial and on appeal, was the scope of the agreement - the Crown contending that the appellant and Ramos had entered into an agreement to commit theft and that agreement encompassed the use of force or the threat of force (ie robbery), and further encompassed the use of weapons and being in company (though the jury were only required to be satisfied of one of the circumstances of aggravation).
The only ground of appeal which is pressed is that the verdict is unsafe or unjust. Section 37 O of the Supreme Court Act 1933 is relevant to this ground, it states:
37 O(2) The Court of Appeal on an appeal against conviction must -
(a) allow the appeal if it considers that -
(i) the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or
(ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or
(iii) on any other ground there was a miscarriage of justice; or
(b) dismiss the appeal.
(3) However, the Court of Appeal may also dismiss an appeal against conviction if it considers that –
(a) the point raised by the appeal might be decided in favour of the appellant; but
(b) no substantial miscarriage of justice has actually occurred.
On appeal we are required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offence with which he was charged. In determining that issue the court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility for determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses.[1] Our task is to make an independent assessment of the whole of the evidence to determine whether the verdict of guilty can be supported.[2]
Conspiracy to commit aggravated robbery
The elements of the offence of aggravated robbery and the issues at trial are not in dispute. Section 309 and 310 of the Criminal Code 2002 (the Code) deal with robbery and aggravated robbery as follows:
309 Robbery
A person commits an offence ("robbery") if—
(a) the person commits theft; and
(b) when committing the theft, or immediately before or immediately after committing the theft, the person—
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else;
with intent to commit theft or to escape from the scene.
310 Aggravated robbery
A person commits an offence (aggravated robbery) if the person—
(a) commits robbery in company with 1 or more people; or
(b)commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
The elements of the offence of aggravated robbery comprise the following:
(i) a person commits theft;
(ii)when committing the theft, or immediately before committing the theft, or immediately after committing the theft, the person [intentionally][3] uses force on someone else or [intentionally][4] threatens to use force then and there on someone else and when doing so does so with the intent to commit theft; and, in addition:
(iii) the person is in company[5]; or
(iv) the person has an offensive weapon (possession being a state of affairs).[6]
As is clear from s.310 the offence of aggravated robbery involves the offence of robbery with one of two additional elements - either ‘in company with 1 or more people’; or at the time of the robbery the person has an offensive weapon with him or her.
The definition of offensive weapon is set out in the Dictionary in the Code and includes:
(a)anything made or adapted for use for causing injury to or incapacitating a person;
(b) anything that a person has with the intention of using, or threatening to use, to cause injury to or incapacitate someone else;
(c) a firearm, or anything that may reasonably be taken in the circumstances to be a firearm;
(d)a knife, or anything that may reasonably be taken in the circumstances to be a knife;
(e) an explosive, or anything that may reasonably be taken in the circumstances to be or contain an explosive.
It is not in dispute that when apprehended Ramos was in possession of a knife and there was a ‘pinch bar’ in the bag belonging to the appellant. As the knife was intentionally in Ramos’ possession, it constitutes an offensive weapon under paragraph (d) of the definition of offensive weapon. The ‘pinch bar’ will constitute an offensive weapon if the appellant had the intention of using it, or threatening to use it, to cause injury to or incapacitate someone else.
The essence of being ‘in company’ is presence with purpose.
The physical presence of another is required for a crime to be committed ‘in company’, participation in the common purpose without being physically present (for example as a lookout or an accessory before the fact) is not enough.[7] What constitutes physical presence depends on the context. As Kirby J observed in R v Button; R v Griffen (‘Button’)[8]:
Physical presence is an elastic concept ... However, there must be limits. The point must be reached where the separation between the offender and the group is such that the offence can no longer be characterised as being in the presence of a group. How are those limits determined? ... The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.
In Button the context was a remote area and five persons who shared a common purpose to sexually assault the victim. In that case a separation of 50 metres was capable of satisfying the requirement of physical presence.
However, more is required than mere physical presence.[9] Absent the requirement for a relevant purpose an innocent bystander could be put at risk of involvement in an offence.[10] To act in ‘in company’ the persons concerned must have an understanding between them to act together to achieve their common purpose or object. That understanding may be expressed or implied. As Macfarlan JA put it in Markou v R[11]:
Proof of a nod or even a look acknowledging that they will act together may suffice, but a mere coincidence of purpose not resulting from an arrangement or understanding will not be enough.
In R v Brougham[12] the Supreme Court of South Australia considered the elements of assault with intent to rob in company, an offence defined in s.158 of the Criminal Law Consolidation Act 1935 (SA). The actual words of that statute were ‘together with one or more person or persons’. After a review of the authorities, King CJ, with whom Mohr and von Doussa JJ agreed, remarked:
A person commits a robbery, or an assault with intent, in company where the person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons were deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required.
This test has subsequently been applied mutatis mutandis to the construction of acting in company, with the reservation that it is not essential to show that those persons alleged to have acted in company all had the purpose of ‘physically participating if required’. As the Full Court of the Federal Court observed in Kelly v The Queen[13]:
Even if those with whom the accused is alleged to have acted in company did not all have that purpose, the accused may have acted in company with them in the relevant sense if their intention was to participate in any way, for example by helping to suppress, by threats or by their mere presence, thoughts of resistance.
It has subsequently been held that presence at the scene and sharing a common purpose may be sufficient even if that presence is unknown to the victim.[14] After a review of the authorities in Button, Kirby J said[15]:
... the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be ‘in company’, even if the victim was unaware of the other person.
The offence of conspiracy is created by s.48 of the Code, which states, relevantly:
48 Conspiracy
(1) If a person conspires with someone else to commit an offence (the offence conspired) punishable by imprisonment for longer than 1 year or by a fine of 200 penalty units or more (or both), the person commits the offence of conspiracy.
(2) However, the person commits the offence of conspiracy only if—
(a) the person entered into an agreement with at least 1 other person; and
(b)the person and at least 1 other party to the agreement intend that an offence be committed under the agreement; and
(c)the person or at least 1 other party to the agreement commits an overt act under the agreement.
Section 48(1) creates the offence of conspiracy. The offence has a single physical element of conduct: conspiring with another person to commit an offence punishable by imprisonment for longer than 1 year or by a fine of 200 penalty units or more, or both. The fault element for the physical element of conduct is intention.
The words ‘conspire’ and ‘conspiracy’ in s.48(1) are to be understood as fixed by common law, subject to express statutory modification. As the plurality in R v LK[16] observed, in a different but analogous context:
These are words that had an established meaning within the criminal law at the time the Code was enacted. Their use, without definition, in the statement of the Code offence was intended to be understood by reference to that legal meaning.
The reference in s.48(2)(b) to ‘an agreement’ is to the agreement which is criminalised by s.48(1). Paragraph 48(2)(b) makes clear that for a person to ‘conspire’ under s.48(1) it is necessary that he or she and at least one other party to the agreement ‘intend that an offence be committed under the agreement’.
Paragraph 48(2)(c) requires, as a condition of a finding of guilt, proof of the doing of an act in furtherance of the conspiracy, by at least one party to it.
Central to the concept of ‘conspiring’ is the agreement of the conspirators. It is the fact of agreement to engage in the common enterprise which is the nub of the offence.
The agreement of the conspirators need not be attended by any formalities.[17] There need not be an express verbal agreement, an agreement may be inferred from the acts of the accused ‘done in pursuance of a criminal purpose in common between them’.[18] As the High Court observed in Ahern v The Queen[19]:
This fact [ie the agreement] can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence.
However, mere acquiescence in the plan of another[20], or tentative discussion, does not amount to an agreement. As the English Court of Appeal put it in R v O’Brien:
... the essence of a conspiracy is an agreement, and persons do not commit a criminal offence merely by talking about the possibility of committing some wrongful or unlawful act unless they reach the stage when they have agreed to commit that act ...[21]
It is not sufficient to constitute a conspiracy that two persons have the same criminal intention unless there is an agreement between them relating to the carrying out of that intention.[22]
At trial the prosecution must prove that the appellant intentionally entered into an agreement to commit the offence that it averred was the subject of the conspiracy, in this case - aggravated robbery. As the plurality said in R v LK[23]:
“The offence of conspiracy under the Code is confined to agreements that an offence be committed. A person who conspires with another to commit an offence is guilty of conspiring to commit that offence ...
At the trial of a person charged with conspiracy it is incumbent on the prosecution to prove that he or she meant to conspire with another person to commit the non-trivial offence particularised as being the object of the conspiracy ...”
A person cannot enter into a conspiracy without knowing the facts which make the agreed conduct unlawful. Intention must be based on knowledge or belief of the necessary facts that constitute the offence.[24] The New Zealand case of Gemmell, illustrates this point. In that matter the Court of Appeal of New Zealand held that a trial judge wrongly directed a jury that the accused was guilty of conspiracy to commit an armed robbery if he agreed to the robbery of a post office even if he did not know that the other conspirators intended to use a gun. McMullin J, delivering the judgement of the Court, said[25]:
A criminal conspiracy...consists of an intention which is common to the minds of the conspirators and the manifestations of their intention by mutual consultation and agreement among them. It is the essence of a conspiratorial agreement that there must be not only an intention to agree but also a common design to commit some offence, that is, to put the design into effect.
It is the scope of the agreement between the appellant and Ramos which is the essential issue in this proceeding - both at trial and on appeal.
At the trial the prosecution was required to prove that the appellant and Ramos intentionally entered into an agreement with each other to commit theft and, at the time or immediately before or after, to use force on someone else or threaten to use force on someone else with the intention of committing the theft. Further, the prosecution had to prove that the agreement encompassed being ‘in company’, or that one of them would have an offensive weapon with him. To satisfy the offensive weapon element it would be sufficient if the agreement encompassed one of them having a knife with them, or that one of them would have the pinch bar with the intention of using the pinch bar, or threatening to use the pinch bar, to cause injury to or incapacitate someone else.
In relation to the weapon aspect of the formulation, the knife in Ramos’ possession at the time was an offensive weapon. Accordingly, if there is evidence of an agreement that Ramos would have a knife on him when they committed the robbery, there is no requirement that the jury be satisfied that the agreement was that Ramos would use the knife, or threaten to use the knife, to cause injury to or incapacitate someone else.
The Crown called two witnesses: Ramos, the co-offender, and the informant, Detective First Constable Jarryd Dunbar. The Crown tendered a CD and transcripts of a number of telephone calls between Mr Ramos and the appellant, as well as the recording and transcript of the interview between police and the appellant after his arrest. These were played to the jury. No evidence was called in the appellant’s case.
At the trial the evidence of the conspiracy between the appellant and Ramos came from four sources, namely:
(i) recordings from telephone intercepts;
(ii) Ramos’ evidence;
(iii) the appellant’s interview with police; and
(iv)the circumstances of the apprehension of both men, including the items found on them (the overt act element of the conspiracy).
The issues on appeal are as follows:
(i)Was there evidence that the agreement between the appellant and Ramos encompassed the use of force or the threat of use of force in the course of the theft? (‘use of force’)
(ii)Was there evidence that the agreement between the appellant and Ramos encompassed that the appellant and Ramos would be in company during the commission of the robbery? (‘in company’)
(iii)Was there evidence that the agreement between the appellant and Ramos encompassed Ramos having a knife on him during the robbery? (‘the knife’)
(iv)Was there evidence that the agreement between the appellant and Ramos encompassed the appellant having the pinch bar with him during the robbery with the intention of using the pinch bar to threaten or to injure someone? (‘the pinch bar’)
We now turn to consider the evidence.
The Evidence
Ramos gave evidence that he had known the appellant for about 8 years.[26] In cross-examination[27] Ramos gave evidence of giving a 50 plus page statement to police after being arrested by police on 6 January 2011. That statement was given during a number of interviews with police and covered a number of criminal activities Ramos had been involved in including aggravated burglaries and robberies. He agreed that the only matter he had been charged with was with the conspiracy to commit the aggravated robbery on Woolworths, and he had been given an indemnity from prosecution in June 2011 in respect of a number of offences, except for the Woolworths conspiracy. He agreed in cross-examination that he had pleaded guilty to that charge, and had been given a reduction in the sentence due to his agreement to give evidence against the appellant in these proceedings. Ramos was sentenced to periodic detention and gave evidence that he understood that if he did not give evidence against the appellant in these proceedings, he could be resentenced, possibly to full time imprisonment.[28]
Ramos and the appellant had a number of telephone calls on 5 and 6 January 2011 at the following times: 12.17pm (AB570-573), 2.44pm (AB 581), 2.50pm (AB582-586), 4.45pm (AB 587). Recordings of these calls, which had been lawfully intercepted, were played at the trial. The calls at 2.44pm and 4.45pm are just to arrange further contact, the call at 2.44pm to arrange the later call at 2.50, the call at 4.45pm to arrange to meet which they did later that day. There was a further call at 10.55 am on 6 January 2011. The relevant calls are 5 January at 12.17pm and 2.50pm, and the 6 January call.
The 12.17pm telephone conversation on 5 January 2011 marks the genesis of whatever agreement came to fruition between the appellant and Ramos. The relevant extracts of that conversation are set out below.
M (the appellant)
And yeah saw something really nice that I’ll do tomorrow night
I (Ramos)
Are you gonna do something tomorrow?
M
Yeah I got to I’m broke
I
Yeah dude me too man. Is that one or two people, two person?
M
Oh I do it by myself the problem is you haven’t got a bike, you know what I mean. And it’s good for about...
I
Ahhh
M
It’s good for about 10
I
Really
M
Yeah, yep. I watched them do the counting up last night you might say... And its just in and out, real quick like its there just sorta grab gone
I
Is it a day night?
M
Nah night
I
Night
...
.. (discussion about exit strategy)
M
Just saw this box with all these bags inside it
I
Yeah
M
Then I went back there last night with the binocs
I
Yeah
M
And sat in the park, had a watch and watched how many bags she pulled out of that thing after it was locked down
I
Yeah
M
And it was a good like 13 bags
I
Indicates he needs to go but will call later
A further telephone conversation took place at 2.50pm on 5 January 2011:[29] During his record of interview the appellant confirmed that the plan involved stealing bags of money from Woolworths.[30]
After this call Ramos and the appellant met and the evidence of that meeting is dealt with in Ramos’ evidence. There is a further telephone conversation at 10.55am on 6 January 2011. The relevant parts of the transcript of that conversation are set out below:[31]
M
So you got your gear with ya
I
Yeah
M
You because you need to come over the mine then I need you to take me to me old mans so I can pick up something and right at home if you know what I mean
Ramos gave evidence that on the day he and the appellant were apprehended they went to the appellant’s house and started preparing. They put the balaclavas, pinch bar and beanies in the bag.[32] While at the appellant’s house, Ramos placed a knife in his pocket. That knife had been brought by Ramos from his house.[33] The pinch bar (or jemmy bar) was placed in the bag by the appellant.[34] Ramos and the appellant then went to the appellant’s father’s house to pick up a second push bike. The appellant and Ramos then drove past Woolworths to have a look.[35] Ramos’ understanding was that it was going to be up to the appellant to decide when they went into the store; that is whether they went in before it closed, or waited until it closed, then smashed their way in with the pinch bar.[36]
Ramos and the appellant rode push bikes and put them under some bushes not far from Woolworths. They left the bag with the bikes. They surveyed the surrounding area, attempting to work out the best place to leave their bikes to make a quick getaway. They were arrested at this point.[37]
Before turning to Ramos’ evidence and the issues raised in the appeal it is convenient to set out the evidence of the informant, Detective First Constable Jarryd Antony Dunbar.[38]
The informant gave evidence of the movements of the appellant and Ramos on 6 January 2011 and their arrest outside Woolworths at Kambah. 26 photographs were tendered as well as the recording and transcript of the interview between police and the appellant conducted on 6 January 2011. He gave evidence that police were watching the appellant’s house on the evening of 6 January 2011. Ramos left work at 5.40pm and the appellant and Ramos left the appellant’s house at 7.15pm and went to the appellant’s father’s house in Kambah. At 7.40pm they were seen to drive to Kambah village and do a loop before returning to the appellant’s house. They went to McDonalds at 8pm then returned to the appellant’s house. At 8.56pm they left the appellant’s house riding pushbikes. The appellant was carrying a zip up bag over his shoulder. Police were watching them leave and other police were situated at Kambah village. At about 9.12pm the appellant and Ramos were seen riding to the Kambah Village. They were seen to place the two pushbikes and the bag the appellant was carrying under a bush. They then walked in the direction of Woolworths and were apprehended.[39] The bag was seized. Inside the bag were the following items: a black jumper, two beanies, a pinch bar, a pair of gloves and two pieces of cloth.[40]
The bag and contents seized by police was shown to Ramos in the course of his evidence. There were two pieces of cloth in the bag, which Ramos indicated were to be used as face coverings for each of them. There were also gloves in the bag. Ramos stated they were to be worn to ensure that no fingerprints were left behind.[41]
There is no dispute that the steps taken by the appellant and Ramos in furtherance of the conspiracy constitute overt acts within the meaning of s.48(2)(c) of the Code. Overt acts may provide evidence of the agreement between the conspirators. As Brennan and Toohey JJ said in R v Rogerson[42]: ‘... acts done in pursuance of an apparent agreement often furnish the evidentiary foundation for inferring that a criminal conspiracy was formed’.
The use of force
The appellant submits that the evidence did not support a finding that the agreement encompassed the use of force or the threat of use of force. Absent such a finding there could be no basis for a finding of guilt in relation to conspiracy to commit robbery, let alone aggravated robbery.
In the course of the conversation between the appellant and Ramos at 12:17pm on 5 January 2011 there is the suggestion of the type of activity the appellant and Ramos would be involved in; “its just an in and out, real quick, like it’s there, just sorta grab, gone.”
During the course of his evidence, Ramos was asked about what was discussed with the appellant during their subsequent meeting on 5 January 2011:
What was discussed in as much detail as you can?---How we'd go in, how we'd get there and what transport we'd use, where we'd leave the transport park, where we'd park the bikes, how we'd go in, how we'd leave in terms of routes.
Okay. Let's start with the discussion about how you would go in. Do you mean that's how you would enter? I withdraw that. At this stage, did you know where the- where you were going to go to? The actual location?--Yes.
Okay. And what was that location?---The Woolworths in Kambah.
Okay. And who came up with that as a location?---Chris did.
Okay. And when you said you discussed how you would go in, what was discussed? How was it discussed?---We agreed we'd go in in the last 10 minutes. How we'd go in? It was either going to go through the front doors while the doors were still open or with the pinch bar, smashing a window.
Okay. Was it discussed what you would do when you got inside?---Chris would go over to the front counter and I would stay by the door and keep a lookout.
Okay. Was it discussed what Chris would do when he got to the counter?---He would request the money and hold up the person with the keys or closest to the bags. Around the vicinity of the counter.
Could you repeat that? He would do what with the person?---He would hold up.
Okay. Was it discussed how that would occur?---No
Okay. And what did you understand by ''hold up" as meaning?---"Hold up" as being the whole shock and awe of two people armed with balaclavas one minute not being there and the next minute being there, requesting for money...
And the next stage in the process was you gave evidence that you would have stood by the door and then the second stage of that was Chris would have approached the cigarette counter. Where was that understanding derived from?---That was through conversation.
What was Chris to do - what was your understanding that Chris was to do when he approached the cigarette counter?---He would walk over to the counter and jump over the counter. And tell the girl to fill the bag with- with black bags or with cash.
And where was that understanding derived from? Was that part of the conversation?---Yes.
Now, we have broken down the events were a number of phone calls on 5 January, and I think your evidence was on the evening of 5 January you attended Chris' house?---Yes.
And then you left and then there was a phone conversation in the morning on 6 January and that afternoon you went back to Chris' house and started to prepare for this event. Whereabouts in that do you recall that that conversation about Chris taking the money from the lady occurred?---It more than likely, and I can't recall exactly, but it would have been one of the conversations we had while we were at his house over a coffee or a tea. We would talk about usually - before the occurrence we had run through different scenarios which could occur. So I can't recall specifically but I recall the conversation taking place.
Okay, what were the scenarios that you run through? Let's start with I scenario 1, what was the first scenario?---We discussed if anyone ever tried to be,. Like, a hero. . . (indistinct) ... hero factor. And we agreed that although we were carrying weapons, there wasn't - it wasn't worth hurting anyone physically, like, with the stabbing or anything to that nature. You know, if - if it meant a shove or a push, that was all right but not in the terms of, you know, hurting anyone deeply. So that was one scenario which we discussed and made clear. Another - I mean, there really is - the other scenario is whether we were chased, if we were in pursuit afterwards or during, at which time, you know, we agreed it would be better to just go our own way, each man for himself kind of thing. And then it was the last scenario whereas everything went well and we got away with the money, in which case we would just ride back home together.
Okay, so the first when you said is the first scenario that was discussed as if anyone decided to be a hero, and you said it was discussed that it wasn't worth stabbing them but if it meant a shove or a push, that that would be okay. Who did that relate to, shove or push who?---It didn't relate to anyone in specific - specifically.
Was it discussed who would be in possession of the money?---Well, Chris would have had the bag with him.
No, no, I'm sorry, when you first entered Woolworths was it discussed who you thought would have been in possession of the money?---Who got their hands on their money first, you mean?
No, no, who from Woolworths would have been in possession of the money? Was that discussed?---The - it was - it was Chris - Chris' understanding that the - the girl or whoever at the cigarette counter was closest to the money.
Was it discussed how he would obtain that money from her?---Through shock and awe. I mean - - -
And what do you mean by shock and awe?---As in, like, the high probability that she would just cooperate by seeing an - or he was armed with a pinch bar, someone balaclava-ed up there in front of her. I mean, we didn't get into specifics, he didn't say, "I'm going to grab her by the hand," or anything like that.
Now, this discussion about shock and awe with Chris wearing a balaclava and armed with a pinch bar, when did that conversation occur, do you recall?---No.
On the afternoon before - the evening before this when you attended Chris... were all of the details discussed then or were only some of the details and the remainder of the details discussed before you went to do the job? What level of discussion and when did it occur?---Not all the details were discussed on that day.
So sorry--: -?---How---
Go on, sorry?---Yes. I can't pinpoint the day it was discussed.
This is the shock and awe process?---Yes. This would have been - the shock and awe - this would have been discussed months back.[43]
Ramos was cross-examined about these matters during which he agreed that he had not mentioned ‘shock and awe’ in his statement to police. Ramos also agreed that ‘shock and awe’ was not mentioned during his telephone conversations with the appellant, stating that they were cautious about what they said during those conversations.
During his cross examination Ramos was asked about the scope of the plan between him and the appellant:
I want to suggest to you, Mr Ramos, that this plan was a plan that did not involve threatening people, did it?---No. Yes. yes.
I'm asking you about the plan. I'm not asking about you what's going on in your head about what you think might happen. I'm asking you about the plan, and what I'm suggesting to you, sir, is that the plan, not your personal thoughts, but the plan did not involve threatening anyone, did it?---No.[44]
Ramos was re-examined on this aspect of his evidence:
And finally, you asked - it was put to you that it - the plan did not involve threatening people. What did you understand that to mean, ‘threatening people’? ... Threatening people as in going up and taking - pointing the gun directly at somebody - sorry, point the knife directly at someone or physically being aggressive towards someone. That’s what my understanding of it was.[45]
Ramos’ evidence that he and the appellant agreed that it may have been necessary to ‘shove or push’ someone in the commission of the offence was unchallenged in cross examination.
The appellant’s record of interview was Exhibit 4 in the trial and is set out at pp. 1051 - 1111 of the Appeal Book. The following extracts are relevant to whether the plan encompassed the use of force or the threat to use force:
A 114: I had no intention of doing this armed. I, um- my intention was- I'll be straight honest. My intention was I was going to wait till the shop closed, um, at ten o'clock, I was going to smash through a window out the front in broad daylight, just fucking a snatch-and-grab, you might say.
A115: Um, I had a pinch-bar to get through the window. Ah, my plan was to get the pinch bar, jam it in the frame of the window, push it down, crack the glass, kick through the glass. I was going to run in and grab the bags of money that the lady had and just run back out. I knew the law as in armed robbery and - and, um, and just theft.
A118: The plan was to watch it get locked up there and either- maybe if somebody is going in and out after lock-in, when obviously there's no, um -there's no customers, you know---
A119: So if there's no customers, you don't need weapons or anything, because there's no people there. Um, maybe if the doors are opening because they're letting a staff member out, I'm just going to make a run for the door and just run in, jump over the counter, you know, tell everybody to leave me the fuck alone, and grab the bags of money and throw it in my bag and run the fuck out of there, jump on my push bike and gone.
A120: That was the plan.
Q146: Can you tell me everything about the conversation that you had with Ivan?
A146: Okay. Um, everything we had in the conversation. Let me think. I think it went - a conversation between me and him. It would have been me saying to him, you know, “What do you think we should do?” Um, he’s pretty much a smarter guy than me, I guess, more educated. He’d say, “Well, you know, there might be a few people in there. Maybe we go with knives in our hands?” Um, then I’d - at the time I might have said, “Yeah, you know, let’s go with knives. Or if we - if we’re going to go with knives, we’re not going to show them. We’ll keep them in our pocket, and if - you know, if somebody is going to jump as in there and we need to use them to get out, to hold it and say, ‘Fucking don’t come near me, you know, we’re just going,’ we might have to use it then. But at the end of the day we’re not going to need to pull them out.” ---
Q147: Mm.
A147: “They can just stay in our pocket.” Then it went from that to me just saying, “Fuck it. I don't need a weapon, you know. You don't need a weapon. I don't need a weapon. It's going to be so fast, I'm going to be so- so quick in there and so quick out of there, we don't need a weapon. It's, um” - and I kept telling him about the law, you know, it's theft. Or I thought it was theft. It might be a bit more than theft. It might be -I actually said, I think, I thought it was “Demand money by menace,” if that is even a charge.
A149: Um, shit I actually thought that was a charge. Um, then it came down to tonight. Ah, we went and had dinner. Um, the plan was no weapons. I had a pinch bar. Um, my whole plan was we'd be watching the place from a distance. Um, if a - if a time presented itself when there's just nobody around and there's nobody inside there and I can make a run for that door, like, the doors are open, and I can make a run for that door, jump over that counter, grab that money bag and jump back and get out of there as quick as possible, I'll do it, I'll have a crack at it.
A150: If the- if that doesn't present itself, like, the night I was there after lock-in there was still twenty people in the shop, and they're just letting them out one by one. And if it was that sort of situation, obviously the doors are locked up, I'll wait till that last person is gone and I'll smash through the corner window that was closest to the alley.
A151: Which means we'd sort of come out from an alley right to the left-hand side of the shop, which is- we'd be sort of sitting in there, pushbikes, we'd come up the alley, um, turn the corner, I'd use the pinch-bar to crack the window, um, because a pinch-bar is the only thing I could think to break the window to get through. I dare say they've got a pretty thick window.
A152: Um, crack the window, then they'll hear the noise, maybe look around. I'll run real quickly in, grab the bags of money and run quickly back out to the same window I broke, back out onto my push bikes all the way home.
A153: That was the plan.
A328: So I thought, if it's after lock-in, she walks close to this window, I'd be able to just break the window and then just run in and say, “Give me the bag.”
A329: And just run back out with the bag.
Q573: Yeah. And once you went through the window, what were you going to do then?
A573: Grab the bag. Tell her ‘I want the bag’.
Q575: And if she didn’t give it to you, what would you have done then?
A575: Probably would have backed the fuck out of there.
Q576: Yeah
A576: Um, just - there’s only so much you can do.
Q577: Like, would have you - was it your plan to grab the bag off her?
A577: No, no. My plan was if she hears the window getting smashed ---
Q581: Yeah.
A581: Um, if she’s walking, like, towards a back door, all of sudden she sees two guys, you know, kicking through a window, and she knows she’s got the - the takings in her hands, “Fucking have it, you know, it’s not my money” ---
Sprinkled throughout the appellant’s interview is the use of the word ‘plan’. Either ‘my plan’ or ‘the plan’. This is indicative of the agreement reached with Ramos.
I am not persuaded that the ‘shock and awe’ concept averted to by Ramos formed part of the agreement between Ramos and the appellant. However, Ramos’ evidence still supports a finding that he and the appellant had agreed that force (a ‘shove or push’) may have been necessary in the commission of the offence. The appellant’s interview with the police is even more damning. He is going to run in and grab the money that the lady has and run back out (A115). He is going to jump over the counter, tell everyone to leave him alone, grab the money and run (A119). Implicit in the answers at 573-581 is the anticipation of demanding the money from the woman in possession of it.
It is also telling that in the course of his record of interview the appellant characterised the plan as ‘a bit more than theft ... I thought it was demand money by menace’. Implicit in the appellant’s own description is the threat of force. As to the appellant’s answer at A575, the jury would be entitled to treat this evidence with considerable scepticism. Having planned the crime, conducted surveillance and enlisted an accomplice, it is highly improbable that the appellant would have simply left the premises if his request to hand over the money had been denied. It was a matter for the jury whether to accept or reject part or all of the appellant’s record of interview and they were instructed accordingly.
At common law, it was not an element of the offence of robbery that the goods are stolen from the actual victim’s person. The offence can be committed whether the goods are on the victim’s person or in the victim’s presence.[46] Nor does the Code require the item to be stolen from the person of the victim. This is relevant as the plan between the appellant and Ramos anticipated (as indicated by the appellant in his interview with police) one scenario that involved taking the bags from the counter, or alternatively from the floor once the woman carrying them drops them (after seeing two men approaching having just broken the window to get in). Both scenarios anticipated ‘the lady’ being present. Even if the agreement was to ‘snatch and grab’ it is clear it was to be in the presence of a female employee. This is still sufficient for the crime of robbery[47].
The evidence before the jury was sufficient to satisfy a jury beyond a reasonable doubt that the appellant and Ramos entered into an agreement to commit a robbery. There was unequivocal evidence from Ramos, the telephone calls, and the appellant’s record of interview that there was an agreement to enter Woolworths and steal a number of bags of money. There was also probative evidence that the agreement extended to using force or threatening to use force.
The ‘in company’ point
The appellant submits that the evidence did not support a finding that the agreement encompassed the offence being committed ‘in company’.
This issue turns on the role of Ramos in the planned robbery. In the course of his evidence Ramos was asked about his role.
Was it discussed what you would do when you got inside? --- Chris [the appellant] would go over to the front counter and I would stay by the door and keep a lookout.[48]
And you said Chris was to approach the counter and you were to stay back at the door? What was discussed? --- To keep a lookout.
And? --- And if there was - just a second pair of eyes to see what was going down, if there was- if someone tried to be a hero.[49]
Was it discussed that you would enter into that - into the shop also? --- Yes. I would - I was going to be in the shop with Chris.[50]
Was it discussed why you would need two balaclavas? --- One for each person.
Okay. And why did you need a balaclava? --- Because I also needed to be covered up.
Okay. And why is that? --- Because I’d be entering the shop with him[51].”
It was suggested to Ramos in cross-examination that the plan was that Ramos would wait outside and hold the bikes, rather than enter Woolworths. Ramos disagreed with this proposition, confirming that the plan with the appellant was for him to enter the store and act as a look out[52]:
Was also crystal clear to you, wasn't it, that your role was lookout?---Yes.
What I want to suggest to you, sir, is that that planned role as lookout did not involve you entering Woolies, did it?---No. However- - -
All right, just stop here for a moment. What I'm asking you about is the plan?--Yes.
I'm not asking about what other ideas you might have had going through your head. What I'm asking about is the plan that you and Chris discussed. What I'm suggesting to you is that the lookout plan did not involve you entering Woolies, did it?---Yes, it did.
That your job was to remain outside Woolies and hold the bikes?---No.
Your job was to let him know if there was trouble coming?---Yes.
And when you described your role to the police, you described it this way, didn't you, "My role for this job would be to act as a lookout'?---As well as not drawing attention to myself, yes.
Of course. you needed to wear the balaclava at that point in case anyone might recognise you?---Exactly.
So whether you went in or not, there was a necessity for you to wear some sort of disguise?---Yes.
The following extracts from the appellant’s record of interview are relevant to the ‘in company’ point:
Q330: Mm. And what was Ramos going to be doing?
A330:Just watching my back. Pretty much he'd stand -I'd go through the window, he'd stand at the window.
A331: So if somebody was going to run up on me from behind or something, he'd be able to give me the heads-up, you know, so to me, “Fuck, Chris, look out,” you know, if there's a bloke coming up behind you with a baseball bat.
Q577: Like, would have you - was it your plan to grab the bag off her?
A577: No, no. My plan was if she hears the window getting smashed ...
Q578: Yep
A578: She’d drop the bag and maybe run away.
Q579: Yep. And then you would pick the bag up ...
A579: And I’d pick the bag up and quickly run back out.
A580: Okay
A580:Yeah, and I tried to - this might make stupid sense - but try and picture it from her point of view
Q581: Yeah
A581:Um, if she’s walking, like, towards the back dock, all of a sudden she sees two guys, you know, kicking through a window, and she knows she’s got the - the takings in her hands, ‘Fucking have it, you know, it’s not my money’ ...
Q582:Yeah. So your intention tonight was to go there, force your way in if needed, grab that black bag full of money and get out of there?
A582: Yeah
The evidence before the jury was more than sufficient to satisfy a jury beyond reasonable doubt that the appellant and Ramos entered into an agreement to commit a robbery ‘in company’. Indeed the evidence overwhelmingly supported such a finding. Ramos was to be physically present during the robbery - either at the window or back door of the store or inside the store, after the appellant entered the store. Ramos’ role was to be a lookout and ‘a second pair of eyes ... if someone tried to be a hero’. As well as emboldening or reassuring the appellant in committing the robbery it is also apparent from the appellant’s record of interview that Ramos’ presence would intimidate the intended victim: all of a sudden she sees two guys you know, kicking through a window, and she knows she’s got the - the takings in her hands, ‘Fucking have it, you know, it’s not my money’.
Offensive Weapon
The appellant submits that there was no evidence that the agreement encompassed the use of weapons. It is submitted that while there was evidence that Ramos and the appellant each had items that could be construed as weapons, and while an available inference is that each of them intended to use the item as a weapon, such an inference is not sufficient in relation to the charge of conspiracy.
As I have mentioned, Ramos was carrying a knife when apprehended.[53] Ramos gave evidence that the appellant was aware that he, Ramos, had a knife on him.[54] In relation to the knife Ramos’ evidence in chief was that it was discussed with the appellant. The nature and extent of that discussion is unclear as is apparent from the following extract from Ramos’ examination in chief:
Was it discussed whether or not you would be carrying anything? --- I was carrying a knife.
Was that discussed? Again, this is at the meeting on - when you attended Chris’s house on 5 January after that last phone call at 4:45? Was the knife discussed? --- It was discussed prior, because that morning when I left my house I had taken a knife from my kitchen and I’d gone to work that day. So - maybe it wasn’t discussed and I just took the knife. I can’t recall.[55]
In relation to the intercepted telephone conversations between Ramos and the appellant on 6 January 2011 at 10.55am[56], Ramos was asked what he understood was meant by “so you got your gear with ya?” Ramos indicated that he understood this to mean did he have what was needed to “carry out, you know, the robbery.”[57] On the telephone intercept he answers ‘yeah’ to the appellant’s query. Ramos was asked about this in his evidence-in-chief:[58]
Did you have some equipment on you? --- Yes, I did
And what was that equipment? --- A knife.
Ramos was cross-examined about these issues.
Your description to the police in your statement doesn't mention the use of a knife, does it?---No.
No. And, in fact, did I understand your evidence correctly before that you agree that maybe there was not even a discussion about you taking a knife? That was your evidence before, wasn't it? Today?---Yes, that's right.
That the closest thing to discussion about a knife was Mr Miles being confident that a knife was not required for the job?---That's right.
So the knife was a frolic of yours, wasn't it?---Yes.
And you'd agree that the telephone conversations that we listened to don't mention a knife, do they?---No. We were cautious.
I suggest to you, sir, that this job was specifically a no-weapon job, wasn't it?---That's correct.
Because it was a snatch and grab, wasn't it?---Yes.
Grab the bags and go? That was the plan, wasn’t it? Grab the bags and get the hell out of there?---Yes.
And it was crystal clear to you that Chris Miles wasn't taking a knife with him, was he?---That's right ...
I want to suggest to you, sir - and I think you agree with this - there was no knife for Chris, was there?---That's right.
And you had a knife?---Yes.
But you didn't tell Chris about that, did you?---Tell Chris about the knife?
That's right?---He was aware I had a knife.
Right. ·He was aware of it without you discussing it with him?---We discussed it.
Right. I thought we'd established just a couple of minutes ago that you didn't have a recollection of discussing the knife with Chris?---I don't recall the word-for-word discussion, but we were clear on what we took in - what we were going to take in.
Do you think you're changing your story, sir, as this evidence goes on?--No. I just know he would have been aware of- that I had a knife on me.
You just know that?---Yes.[59]
Ramos was re-examined on this aspect of his evidence:
Okay. Now, my friend asked you a question, he said - he put to you that Chris wasn’t aware that you had a knife and you said, “We discussed it.” And then you said, “We were clear of what we took in.” When did that discussion about the knife and being clear about what you took in - specifically you taking a knife in - when did that discussion occur? ---It would have taken place in Chris’s house prior to heading out.[60]
The following extracts from the appellant’s record of interview are relevant to the offensive weapons point:
A116: Um, at no time- you know, I think it entered my mind a couple of times about armed, but then I thought, you know, it doesn't need to be armed, you know---
A117: I don't need to do an armed robbery. Um, the plan was, I spoke to Ivan about no weapons. And he's a smaller guy, and he kept saying he wanted to take a weapon. And I kept saying, “No, we're not taking weapons. I don't need a weapon, you know. I'm going to run in and I'm going to grab the fucking bag of money and I’m going to run out, you know. You don't need a weapon.” It was pretty much decided tonight that we won't need weapons, you know. The plan was I'd walk up after lock-in and look at them from across a paddock, um, probably- there's sort of an alley- you know where the alley is there.
A122: The intention was -the plan wasn't to go in armed.
A123: And I didn't have a weapon and I didn't want a weapon. Ivan didn't have a weapon:
A146: Okay. Um, everything we had in the conversation. Let me think. I think it went- a conversation between me and him. It would have been me saying to him, you know, “What do you think we should do?” Um, he's pretty much a smarter guy than me, I guess, more educated. He'd say, “Well, you know, there might be a few people in there. Maybe we go with knives in our hands?” Um, then I'd- at the time I might have said, “Yeah, you know, let's go with knives. Or if we- if we're going to go with knives, we're not going to show them. We'll keep them in our pocket, and if- you know, if somebody is going to jump us in there and we need to use them to get out, to hold it and say, ‘Fucking don't come near me, you know, we're just going,’ we might have to use it then. But at the end of the day we're not going to need to pull them out” ---
A147: “They can just stay in our pocket.” Then it went from that to me just saying, “Fuck it. I don't need a weapon, you know. You don't need a weapon. I don't need a weapon. It's going to be so fast, I'm going to be so- so quick in there and so quick out of there, we don't need a weapon. It's, um” - and I kept telling him about the law, you know, it's theft. Or I thought it was theft. It might be a bit more than theft. It might be -I actually said, I think, I thought it was “Demand money by menace,” if that is even a charge.
Q590: So you didn't take any weapons?
A590: I took a pinch-bar.
Q591: The pinch-bar. But that - - -
A591: ...(indistinct) ...
Q592: But you were saying before that the use you were planning for the pinch bar was to---
A592: Smash this window.
Q593: Break the window?
A:593: Yep.
Q594: What about Ivan? Did he take any knives or weapons that you know of?
A594: No weapons, no.
Q595: No?
A595: No.
Q596: Are you sure about that?
A596: We were told not to take weapons.
Q597: Yeah?
A597: I think that was the plan.
Q598: Are you sure?
A598: Yeah.
Q599: Are you positive?
A599: ... (indistinct) ...
Q600: Well, when Ivan was searched there was found quite a large silver knife on him. What can you tell me about that?
A600: From the bag or from him?
Q601: On him, on his person.
A601: Unless he's taken it from my house. Do you know what the knife looked like?
Q602: It was a---
A602: As in, I know what the knifes in the house look like, my knife blocks and shit like that.
Q603: It was all silver. Like, it had a silver handle and a silver blade, like, all sort of the one piece.
A603: Not a black handle?
Q604: It was bigger than a steak- bigger than a steak knife. It was decent sized kitchen knife.
A604: Nup.
Q616: So did you know that Ivan had it?
A616: Nup. Nup. I told him I didn't need a knife. I didn't need a knife. Yeah, the plan was, no knife. It was discussed early but, yeah, as I said before, it was talked out of.
In assessing the evidence in respect of the ‘offensive weapon point’ the critical issue is not the scope of the actions that the appellant and Ramos each might engage in, or even recklessness as to what each might engage in[61], but rather the scope of the agreement they intentionally entered into.
The evidence in relation to the offensive weapons point lacks probative value. Ramos agrees with the proposition that the knife was ‘a frolic’ of his own. He gives inconsistent evidence as to whether there was a discussion about the knife (between him and the appellant) but says that the appellant ‘was aware I had a knife’. Ramos’ evidence in relation to the pinch bar is even more unconvincing. In his evidence in chief the following exchange takes place:
Was it discussed what the pinch bar would be used for? --- It would have served to smash open one of the windows if the doors were closed by the time we got to the front doors.
Okay. And what was to happen with the - was it discussed what would happen with the pinch bar once the window had been smashed? --- From a real point of view it also serves as a - it appears to be a weapon.
Mr Gill: Your Honour, I’d ask that the answer be responsive to the question, which is what was discussed.
Yes --- What was discussed? What was discussed was that there wasn’t a need for a knife. He didn’t feel the need that he needed to have a knife with him, so he took the pinch bar.
Okay. Was it discussed what would happen with the pinch bar - if - you said that the pinch bar initially was to break the window if the place was locked.
Was it discussed what would happen with the pinch bar after the window was broken? --- No, it was not.[62]
Ramos was asked about the pinch bar in cross-examination.
All right. Well, let me ask you about the pinch bar. You knew that he had a pinch bar, didn't you? Or that that was the plan, that he would have a pinch bar?---I recall discussing it, yes.
Yes. You understood that part of the plan is that Chris would have a pinch bar, you agree with that, don't you?---Yes, yes.
You agree that the expectation or the plan that you and Chris had come to as that this job would be done very close to closing time?---Yes.
And if I've understood your evidence a little bit earlier correctly, it was if the doors were still operating, you'd use the doors?---Yes.
Makes sense, doesn't it?---Yes.
But if the doors were no longer operating, the window would need to be popped?---Yes. I've got that right, haven't I?---Yes.
And the implement for popping the window?---The pinch bar...
And that as far as the plan went, the only reason there was a pinch bar was because the window might need popping if the doors had locked? You agree with that, don't you, sir?---Yes.
There's no discussion of the use of the pinch bar as a weapon?---No.[63]
An independent assessment of the whole of the evidence leads me to conclude that it was not open to a jury to conclude that the appellant was guilty of the ‘offensive weapon’ aspect of the charged offence. I have reached this conclusion after paying full regard to the fact that the jury is the body entrusted with the primary responsibility for determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses.
Conclusion
I am satisfied upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of conspiring to commit aggravated robbery. In particular I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant and Ramos intentionally entered into an agreement with each other to commit theft and, at the time or immediately before or after, to use force on someone else or threaten to use force on someone else with the intention of committing the theft. It was also open to the jury to be satisfied beyond reasonable doubt that the agreement between the appellant and Ramos encompassed the offence being committed in company.
As mentioned, there was insufficient evidence to find that the agreement encompassed one of them having an offensive weapon with him at the time of the robbery. However, while this point has been decided in favour of the appellant no substantial miscarriage of justice has actually occurred and on that basis the appeal against conviction should be dismissed pursuant to s.370(3). There has been no substantial miscarriage of justice because the offence of aggravated robbery only requires one of the two additional elements (either ‘in company’ or having an offensive weapon) and it was part of the agreement that the appellant and Ramos be ‘in company’ within the meaning of s.310(a) of the Code. Indeed as I have mentioned the evidence in support of such a finding was overwhelming and it was inevitable that a jury would conclude that it was part of the agreement that the appellant and Ramos would be ‘in company’.
The appeal against the appellant’s conviction should be dismissed.
I certify that the preceding paragraphs numbered three to seventy-nine (3–79) are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date:
Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Legal Aid ACT
Counsel for the Respondent: Ms M Jones
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 11 February 2014
Date of judgment: 3 June 2014
[1] M v The Queen (1994) 181 CLR 487 at 493; R v Hillier (2007) 228 CLR 618; WA v R [2011] ACTCA 4 at [10]-[11]
[2] SKA v The Queen (2011) 243 CLR 400 at 408-409, [21]-[22] per French CJ, Gummow and Kiefel JJ
[3] Code default fault element for conduct is intention: s.22(1)
[4] Code default fault element for conduct is intention: s.22(1)
[5] While pursuant to s.22(2) the default fault element for a physical element consisting of a circumstance (as here) is recklessness, pursuant to the High Court’s decisions in R v LK and RK and R v Ansari proof of intention or knowledge is required. Intention or knowledge will satisfy the fault element of recklessness: s.20(4).
[6] The element is satisfied upon the intentional possession of a weapon (the default element for a state of affairs being intention, possession of a thing being a state of affairs) at the time the robbery is committed.
[7] R v Button; R v Griffen [2002] NSWCCA 159
[8] [2002] NSWCCA 159 at [123]-[125]
[9] Birrell v Astor (1940) VLR 180 at 184; R v Crozier, NSW Court of Criminal Appeal 8 March 1996, unreported; cited in FP v R [2012] NSWCCA 182
[10] See Western Australia v Maria Mona Dick [2006] 161 A Crim R 271 at [18] per Johnson J
[11] [2012] NSWCCA 64 at [28]; also see FP v R [2012] NSWCCA 182 at [125] per R.A. Hulme J., with whom McClellan CJ at CL and Schmidt J agreed
[12] (1986) 43 SASR 187
[13] (1989) 23 FCR 463 at 466
[14] R v Leonie (1999) NSWCCA 14
[15] Op cit (2002) 54 NSWLR 455 at 465, [120]
[16] (2010) 241 CLR 177 at 224, [107]
[17] R v Orton [1922] VLR 469 at 473; Gerakiteys (1984) 153 CLR 317, approved in R v LK, op cit at 231, [131]. Also see Orchard G (1974) “ ‘Agreement in Criminal Conspiracy - 1”, Criminal Law Review 297
[18] Orton, op cit at 473
[19] (1988) 165 CLR 87 at [93]
[20] R v Caldwell (2009) 22 VR 93, 99-100, [62]-[63] per Weinberg JA, cited with approval in Dickson v The Queen (2010) 241 CLR 491, 505 [23] in Rolls v The Queen [2011] VSCA 401 at [23], [30] and [58]
[21] (1974) 59 Cr. App. R. 222 at 225
[22] R v Moore [1988] 1 Qd R 252; R v Barbouttis (1995) 37 NSWLR 256 at 278 per Dunford J
[23] op cit at 228, [117] and 235, [141]
[24] R v Ansari (2007) 70 NSWLR 89 at 108, [76] per Howie J; R v RK and LK [2008] NSWCCA 338 at [55] per Spigleman CJ
[25] (1985) 1 CRNZ 496 at 500, cited with approval in Peters v R (1998) 192 CLR 493
[26] AB39.30
[27] AB 75
[28] AB 78.3 - 79.10
[29] Played to jury AB 42.18
[30] Q394: When you say “we’d do this thing”, what do you mean? A394: Um, do - do the Woolworths. Steal the bags of money from the Woolworths. I was just going to do that with him. Q395: When you say “thing” though, what are you talking about? A395: The - steal the money from Woolworths.
[31] Played to jury AB 47.8
[32] AB 50.5-10
[33] AB50.15-22
[34] AB 50.36
[35] AB 48.44-49.2
[36] AB 49.16-26
[37] AB53.35-54.24
[38] AB 88- 101
[39] AB 89.27-90.30.
[40] AB 92.4-93.11
[41] AB 52.27-37
[42] (1992) 107 ALR 225 at 231
[43] Trial transcript p 41, lines 15-45; p 42, lines 1-45; and p 43, lines 1-8, Appeal Book 62-64
[44] Trial transcript p 61, lines 44-45 and p 62, lines 1-2, Appeal Book 82-83
[45] Trial transcript p 67, lines 11-16, Appeal Book 88
[46] R v Delk (1999) 46 NSWLR 340 at [14].
[47] Ibid
[48] Trial transcript p 23, lines 40-43, Appeal Book 44
[49] Trial transcript p 24, lines 13-18, Appeal Book 45
[50] Trial transcript p 25, lines 26-27, Appeal Book 46
[51] Trial transcript p 31, lines 10-16, Appeal Book 52
[52] AB 80.24-43.
[53] AB 32
[54] AB 81.13-24
[55] Trial transcript at p 24, lines 31-43, Appeal Book 45
[56] AB591 - 592
[57] AB 47 - 30-31
[58] AB47.39-42
[59] Trial transcript at p 58, lines 38-44; p 59, lines 1-22; and p 60, lines 6-26, Appeal Book 79-81
[60] Trial transcript p 66, lines 4-9, Appeal Book 66
[61] See Giorgianni v The Queen (1985) CLR 473 at 506
[62] Trial transcript at p 25, lines 10-24, Appeal Book 46
[63] Trial transcript at p 60, lines 28-44; p 61, lines 1-3; and p 62, lines 8-12, Appeal Book 81-83
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