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Rubasha v The Queen

Rubasha v The Queen

Case [2021] NSWCCA 319 21 December 2021

Criminal Liability

Sufficiency of Evidence

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rubasha v R [2021] NSWCCA 319
Hearing dates: 3 December 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Before: Beech-Jones CJ at CL at [1]
Rothman J at [52]
Wilson J at [61]
Decision:
(1)   Grant leave to the Applicant to raise grounds 1 and 2 of the Appeal;
(2)   Appeal allowed;
(3)   Set aside the conviction on 18 February 2021 for conspiracy to rob whilst armed with a dangerous weapon;
(4)   In lieu thereof, order that an acquittal be entered.

Catchwords:
CRIME – applicant convicted of conspiracy to rob – indictment confined conspiracy to rob a person in a particular street in particular suburb – Crown conducted its case on that basis – unreasonable verdict – sufficiency of evidence to demonstrate object of conspiracy was to rob someone in that street – sufficient of evidence to demonstrate that applicant was a participant in conspiracy – whether miscarriage of justice arising from trial judge’s direction in response to jury question about proposed location of robbery – held – verdict unreasonable because of strength of evidence said to demonstrate object of conspiracy was to rob a person in particular street – other grounds rejected – acquittal entered.

Legislation Cited:
Criminal Appeal Act 1912

Cases Cited:
Agius v R [2015] NSWCCA 200
Ahern v R (1988) 165 CLR 87; [1988] HCA 39
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
Gage v R [2021] NSWCCA 222
Gerakiteys v The Queen (1983) 153 CLR 317; [1983] HCA 8
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12;
R v Alameddine [2012] NSWCCA 63
R v Hickey [2002] NSWCCA 474
R v Salama [1999] NSWCA 105
RD (a pseudonym) v R [2021] NSWCCA 94
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Emmanuel Rubasha (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Clarke (Applicant)
C Dodds (Crown)
Solicitors:
James and Jaramillo Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2019/366222
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

09 April 2021

Before:

Syme DCJ

File Number(s):

2019/366222

Judgment

BEECH-JONES CJ at CL: This is an appeal under s 5(1) of the Criminal Appeal Act 1912 against a conviction for an offence of conspiracy to rob. The grounds of appeal relate to the manner in which the Crown confined its case to proving that the object of the conspiracy was to rob a person located on a specific street in Greenacre. For the reasons set out below, because the Crown confined its case in that manner, I am satisfied that the Applicant’s conviction was unreasonable or unable to be supported by the evidence and should be set aside (Criminal Appeal Act, s 6(1)).

The Crown Case

On 15 February 2021 the Applicant was…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rubasha v The Queen

Details

AGLC: Rubasha v The Queen [2021] NSWCCA 319
Case: [2021] NSWCCA 319
Decision Date: 21 December 2021

CaseChat Overview and Summary

Rubasha was convicted of conspiracy to rob and appealed against his conviction, arguing that the verdict was unreasonable and that there was a miscarriage of justice. The central issue in the appeal was whether the trial judge's direction in response to a jury question about the proposed location of the robbery constituted a miscarriage of justice. The applicant contended that the evidence was insufficient to demonstrate that the object of the conspiracy was to rob someone in a particular street and that he was a participant in the conspiracy. The Court of Appeal needed to determine the sufficiency of the evidence and whether the trial judge's direction led to an unreasonable verdict.

The Court of Appeal found that the verdict was unreasonable due to the strength of the evidence indicating the object of the conspiracy was to rob someone in the particular street. The court held that there was sufficient evidence to demonstrate that the applicant was a participant in the conspiracy. The Crown conducted its case on the basis that the conspiracy was to rob a person in a particular street in a particular suburb, and the jury was properly directed to consider the evidence in that context. However, the trial judge's direction in response to a jury question about the proposed location of the robbery was problematic. The court found that the direction did not result in a miscarriage of justice as it did not affect the safety of the verdict. The other grounds of appeal were also rejected by the court.

The Court of Appeal concluded that the verdict was unreasonable due to the strength of the evidence indicating the object of the conspiracy was to rob someone in the particular street. The applicant's appeal was allowed, and an acquittal was entered. The Court of Appeal found that the trial judge's direction in response to a jury question about the proposed location of the robbery did not result in a miscarriage of justice and did not affect the safety of the verdict. The applicant's conviction was quashed, and he was acquitted of the offence.

Orders