Rubasha v The Queen

[2021] NSWCCA 319

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

1. 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

2. On 15 February 2021 the Applicant was arraigned before Judge Syme and a jury panel in the District Court on an indictment that contained one count as follows:

“... between the 17^th day of November 2019 and the 21^st day of November 2019 at Sydney in the State of NSW, [the Applicant] conspired with Jesse Curuenavuli and/or Brooke Mohi and/or Odeo Guise and/or Albert Nitiva to rob a person at Karuah Street, Greenacre of property whilst armed with a dangerous weapon.”

3. The Applicant pleaded not guilty. On 19 February 2021 the jury returned a verdict of guilty. On 9 April 2021 her Honour sentenced the Applicant to a term of imprisonment of two years and ten months commencing 3 September 2020 with a non-parole period of one year and eight months expiring on 2 May 2022.

4. In summary, the Crown case was that the conspirators planned to carry out an armed robbery on 20 November 2019. On that day Jesse Curuenavuli, Brooke Mohi and Albert Nitiva travelled in Curuenavuli’s mother’s car to collect Obed Guise and the applicant who were at Bankstown. The Crown contended that they had agreed to commit an armed robbery with a firearm in Karuah Street Greenacre. At about 8.30pm the vehicle collided with another vehicle on Rickard Road Bankstown. The damaged car was parked near a park in Bankstown and the three occupants left the vehicle and met the Applicant and Guise in the park. At around 8.36pm they entered a shopping centre together before leaving at 8.55pm. They gathered at a bus stop and were approached by police. Mohi was arrested but the other four including the Applicant ran from the police.

5. Mohi was found in possession of a backpack which contained a shortened .22 calibre rifle with a .22 calibre round in the chamber and a plastic bag containing eight rounds. He was also found in possession of a mobile phone that corresponded with a phone service the subject of police surveillance. Cuerenavuli and Guise were both arrested. They were also in possession of telephones that corresponded with phone services the subject of police surveillance.

6. Aerial surveillance showed the Applicant and Nitiva running away from police and coming together in the car park of another shopping centre where they were arrested. The police located a beanie and black singlet nearby. In a rubbish bin that was approximately 5 metres from where the Applicant was arrested police found a black Nike “bumbag” which contained a lighter, a black torch and a Nike glove. The Applicant was a major contributor to a DNA sample taken from the glove.

7. Commencing at 1.47am on 21 November 1999 the Applicant participated in a recorded interview with police. He denied participating in any conspiracy to rob anyone. He said that he and Guise were in Bankstown “looking at having an esh” being a “session” smoking marijuana. He said they met the others in the park although he only knew Curuenavuli.

8. The trial was conducted very efficiently. The Crown called one witness being the informant, Detective Senior Constable Roberts. The Applicant did not give evidence or call witnesses. Through the informant the Crown tendered surveillance evidence consisting of telephone intercepts commencing from 18 November 2019, physical surveillance of a number of the conspirators, CCTV footage, aerial surveillance and DNA analysis. Some of this material is further described below. The Crown alleged there was one telephone intercept of a call involving the Applicant prior to his arrest. His calls were intercepted in the period after his arrest.

The Object of the Conspiracy

9. Repeatedly throughout the trial the Crown confined itself to a case that the object of the conspiracy was to rob a person at Karuah Street, Greenacre. That was the form of the indictment. In opening the case the Crown said that “[t]he agreement was to rob an unknown person at a residential premises at Karuah Street, Greenacre”. As explained below one aspect of the cross-examination of the informant concerned the sufficiency of the evidence that the conspiracy concerned that location. The Crown Prosecutor’s address adverted to Curuenavuli and Guise driving up and down Karuah Street, Greenacre on 18 November 2019. The Applicant’s Counsel emphasised that the indictment was “very specific to what the mission or job was going to be, that is to rob an unknown person, on the face of it at Karuah Street in Greenacre”. He submitted that the evidence of the reconnaissance undertaken in the early hours of 19 November 2019 by Guise and Curuenavuli was not capable of demonstrating that the agreement was to rob someone at Karuah Street.

10. During the summing up, the trial judge distributed a document to the jury setting out the elements of the offence which stated as follows:

“1.   That there was in fact an agreement between two or more persons (Jesse Curuenavuli, Brooke Mohi, Odeo Guise and/or Albert Nativa) to commit an unlawful act; and

2.   The unlawful act agreed to be on was to rob* a person at Karuah Street Greenacre of property, whilst armed with a dangerous weapon*; and

3.   That the accused, Emmanual Rubasha participated in that agreement because he joined the conspiracy at a later date (19^th November 2019) in the sense that –

(a)   He agreed with one or more of the other persons referred to in the count that the unlawful objective of the conspiracy should be carried out; and

(b)   at the time of agreeing to this, he intended that objective should be carried into effect.”

[*The definition of “robbery” and “dangerous weapon” were included in the document.]

11. Consistent with this, in relation to Element 2 the trial judge told the jury that if they were unable to reach a “conclusion beyond reasonable doubt that the Crown have proven to that standard that the unlawful act agreed upon was to rob the person at Karuah Street in Greenacre of property whilst armed with a dangerous weapon” then they had to acquit the Applicant.

12. After the summing up concluded the jury asked the following question:

“We are all in agreement that we need to know how important is the address of Karuah Street. Does the whole case fall apart if we do not know for sure that they were going to rob Karuah Street? We are confused because it is on the indictment. Could it be somewhere else?”

13. The direction given by Her Honour to the jury in response to this question is the subject of complaint by ground 2 of the appeal and is addressed below. It suffices to note that, in the absence of the jury, her Honour stated that the “short answer to that [question] is, yes”.

14. Both at the trial and on this appeal the Crown accepted that it was necessary for it to prove that the object of the conspiracy was to rob a person at Karuah Street. That said, nothing in this judgment should be taken as holding that it was necessary for the Crown to particularise the location of the person to be robbed in the precise manner it did. This judgment is directed to and premised upon the necessity for the Crown to prove the conspiracy that it alleged in the indictment and pursued at trial and not some other conspiracy (see Agius v R [2015] NSWCCA 200 at [966] to [968] per Bathurst CJ; Gerakiteys v The Queen (1983) 153 CLR 317; [1983] HCA 8; “Gerakiteys”). The question of whether the Crown could have been allowed to amend the description of the precise conspiracy it alleged does not arise on this appeal.

Ground 1: Unreasonable Verdict

15. Ground 1 of the appeal contends “that the verdict of the jury was unreasonable or unable to be supported by the evidence having regard to the scope of the conspiracy alleged by the Crown.” This ground is reflected in s 6(1) of the Criminal Appeal Act 1912. As it does not involve a question of law alone a grant of leave to raise it is required (s 5(1)). I propose that leave to raise it be granted.

16. In RD (a pseudonym) v R [2021] NSWCCA 94 at [7], Macfarlan JA referred to the different formulations of the test for this ground as follows:

“The unreasonable verdict ground relied upon by the applicant invokes s 6(1) of the Criminal Appeal Act. As I said in Prasad v R [2020] NSWCCA 349 at [119] with the concurrence of Wilson and N Adams JJ, the question to be addressed by the appellate court in this context is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.”

17. To this discussion it must be added that in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; (2020) 94 ALJR 394 (“Pell”), the High Court noted that to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence (at [45]).

18. Counsel for the Applicant, Mr Clarke, raised two points in relation to this ground. First, he contended that it was “not open”, ie, reasonably open, to the jury to be satisfied beyond reasonable doubt that the object of the conspiracy was the robbery of a person at Karuah Street Greenacre. Second, he contended that it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the Applicant was a party to the conspiracy.

19. Both of these aspects of the Crown case were circumstantial. This meant that the jury could not return a verdict of guilty unless the proven circumstances were inconsistent with any reasonable hypothesis other than the guilt of the accused, that is, if guilt was the only rational inference that could be drawn in the circumstances (Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42). In this case for the jury to have convicted the Applicant it had to be satisfied that the only rational inference that could be drawn from the circumstances was that conspirators agreed to rob a person at a house in Karuah Street, Greenacre (and not some other place) and that the Applicant was a party to the conspiracy.

20. As for what is a reasonable hypothesis or rational inference consistent with innocence, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”) at [47], French CJ, Kiefel, Bell, Keane and Gordon JJ stated:

“For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence” … (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” … (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal …”.

21. To similar effect in Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 it was observed (at [55]):

“An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard ….. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.”

Karuah Street, Greenacre

22. As explained above, the Crown case was confined to demonstrating that the object of the conspiracy was to rob a person at Karuah Street Greenacre. The evidence in relation to the intended location of the robbery was relatively confined. As noted, Curuenavuli and Guise’s telephone calls were intercepted from 18 November 2021 until their arrest. The first of the calls that was tendered took place between them at 1.05pm on 18 November 2019. During that call Guise told Curuenavuli that “old matey gave us a job in Greenacre”. None of the other intercepted calls referred to any location to be robbed. However, in an intercepted call at 12.07am on 19 November 2018, Guise told an unknown male that “we need to go sus something out quickly” and then said “we’re gonna come to Lidcombe”. This call coincided with a reconnaissance drive from around 12.06 am to 12.34 am through the suburb of Greenacre by Guise and Curuenavuli in Curuenavuli’s mother car that was the subject of physical surveillance supplemented by some CCTV footage taken from a house in Karuah Street.

23. The effect of this evidence was taken up in cross-examination of the informant. He agreed that at around 12.06am Guise walked from his home in Alan Street Bankstown and entered Curuenavuli’s mother’s car. By reference to a map that was tendered in the defence case he was cross-examined on the route that the car took in conducting reconnaissance. The following diagram was created from a portion of that map:

24. DSC Roberts said that Guise and Curuenavuli drove into Boronia Road Greenacre from the west. Boronia Road runs into Juno Parade which is depicted in the above map. Their vehicle then turned left into Maiden Street and right into Karuah Street. DSC Roberts agreed they were both “fairly narrow, residential streets”. The CCTV footage taken from a house in Karuah Street shows the car driving past in an easterly direction. DSC Roberts agreed that there’s “no discernible slowing down” of the vehicle shown and that it “seemed to keep a constant pace”. Having viewed the footage I agree with that answer. DSC Roberts stated the vehicle travelled the length of Karuah Street until it came to the intersection with Roberts Road where it made a “U-turn” and returned along Karuah Street, although the return leg was not detected on CCTV. He agreed that there was “no suggestion” that the vehicle stopped on Karuah Street or slowed down in any way. The vehicle then turned left onto Maiden Street and again there was “no suggestion” that it stopped on that street or travel more slowly or quickly.

25. The cross-examination of DSC Roberts continued:

“Q.   In fact it might have stopped on this road, you couldn’t say. Is that right?

A.   The log would indicate if it stopped.

Q.   Yeah but it seems to be a continuous journey?

A.   That’s correct.

Q.   As it was on Karuah Street, on the face of it?

A.   Correct.

Q.   And then it actually gets back to the junction with Juno Parade?

A.   Yes.

Q.   And without going through it all again, you can see if you look down there that there’s no revisiting to either Maiden Street or in fact Karuah Street, is there, in this list?

A.   No.

Q.   And it just heads off to Lidcombe, doesn’t it?

A.   It does.

Q.   And we know that’s not entirely a surprise because on the listening device, you know, the telephone calls we’ve been listening to, there’s talk about picking someone up in Lidcombe, isn’t there?

A.   That’s correct.

Q.   And so on the face of what we know from the surveillance, it is simply not possible to say which premises this car was interested in?

A.   That’s correct.

Q.   And so on the face of what we know, this car could be interested in an address in Maiden Street, couldn’t it?

A.   On the face of the surveillance document, yes.

Q.   Yes. There is no qualitative difference between the journey it makes up and down Karuah Street and the journey it makes up and down Maiden Street. That’s right, isn’t it?

A.   Correct.

Q.   And so having now got that information, that’s as good as it gets, isn’t it? In terms of trying to identify the premises and the person, that’s the high point, isn’t it, of that information? You don’t learn anything else?

A.   On the surveillance document alone, that’s correct.”

26. The reference to “this list” and the “surveillance document” in this extract is to a report logging the observations of the movement of the vehicle during this period (the “surveillance log”). The surveillance log was tendered in the defence case and the relevant portion was as follows:

0014hrs 2837 3223 2229 2369 2451 2546 2837 1579 Vehicle …. with GUISE as front passenger, UP1 as driver and now confirmed as having an unknown passenger (NFD) herein referred to as UP2, in the rear passenger seat, travelled east on Boronia Road, Greenacre, and continued via, Boronia Road, Greenacre; Juno Parade, Maiden Street, Karuah Street, Roberts Road, (U-Turn) Roberts Road, Karuah Street Maiden Street, Juno Parade, Matthews Street, (U-Turn) Matthews Street, Juno Parade, Roberts Road, Arthur Street, Homebush West, Railway Street, (U-Turn) Railway Street, Unnamed Bridge, Church Street, (U-Turn) Church Street, John Street, (U-Turn) John Street, Church Street, (U-Turn) Church Street, Lidcombe

27. In the above portion of cross‑examination DSC Roberts agreed that, after coming back to Juno Parade, the vehicle headed off to Lidcombe. This document suggests that the route they “head[ed] off” to Lidcombe was by travelling north along Roberts Road. It also suggests that before they did so the vehicle turned off Juno Parade into Mathews Street and did a “U–Turn”. The location of Mathews Street was not shown on the map tendered before the jury. A comparison of this surveillance log with the map that was tendered suggests that it was to the east of Roberts Road.

28. In the above extract from his evidence DSC Roberts confined his answers to what conclusions he could draw from the surveillance log. In re-examination he said that his conclusion that the intention was to rob a place in Karuah Street was based on the surveillance, the CCTV footage and the intercepted telephone conversation that took place as the drive commenced (see [22] above).

29. In her closing submissions, the Crown Prosecutor contended that the inference that the object of the conspiracy was to rob a person in Karuah Street was based on the undertaking of the U-turn at the end of Karuah Street. She submitted that they did not stop in Karuah Street or slow down to avoid suspicion. In this Court the Crown expanded on that submission as follows:

“66.   The respondent submits that it was open to the jury to draw the inference that premises in Karuah Street was the object of the conspiracy because this street was the last street into which JC and OG travelled before they made a U-turn on Roberts Road. It was open to the jury to have reasoned that if a house in Maiden Street was the object of the conspiracy, then the car would have performed its U-turn in Maiden Street after completing its drive by; or even at the beginning of Karuah Street, rather than turning right and driving the length of Karuah Street before making a U-turn at Roberts Road and travelling back down Karuah Street again. It was open to the jury to reason that if the conspirators wanted to scope the premises out quickly, that they would not need to drive the length of a street that was irrelevant to their goal and which would add unnecessary length to the journey. It was open to the jury to have reasoned that the conspirators travelled to the ultimate destination the object of the conspiracy to check it out, as they said they were going to do. It was open to the jury to conclude that this is what JC and OG did by driving the length of Karuah Street before performing a U-turn at Roberts Street; and driving back down Karuah Street then completing the journey back to the Hume Highway in reverse. By this reasoning, it was open to the jury to exclude the reasonable possibility that an address on Maiden Street was the target. The respondent submits that this court, after conducting its own independent assessment of the evidence, would find that it was of sufficient quality to prove the charge beyond reasonable doubt.”

30. Thus, this submission differentiates between the drive back and forth on Karuah Street and the drive back and forth on Maiden Street on the basis that Karuah Street was the last street that Guise and Curuenavuli drove down before turning around and that they were in a hurry as suggested by that part of the telephone call in which Guise indicated that he and Curuenavuli were proposing to undertake the surveillance quickly (“sus it out quickly”) before travelling to Lidcombe. This is logical but it is reasonably open, even if not equally reasonably open, to infer that Guise and Curuenavuli might have been conducting surveillance on a house in Maiden Street and took the (slightly) extra precaution of travelling down Karuah Street before turning around. Given that the U-turn occurred almost immediately upon their entry onto Roberts Road it is conceivable that it would attract attention from anyone living in Karuah Road but not someone living in Maiden Street. To this cause for doubt there must be added the drive along Juno Road to Mathews Street and the U-turn in that street before driving back along Juno Parade and turning into Andrews Road. Unless they got lost on leaving Greenacre, this route is hard to reconcile with the Crown’s reasoning as to why Karuah Road was the object of the surveillance, especially as they were in a rush. The possibility that they got lost only emphasises the degree of conjecture and speculation in relation to this aspect of the Crown case.

31. Confined as I am by the manner in which the Crown pleaded and conducted its case, I am not satisfied that a jury, acting reasonably, could have rejected as a rational inference that the object of the conspiracy was to rob a house on a street other than Karuah Street. In those circumstances I am satisfied that it was not reasonably open to the jury to convict the Applicant on the charge on the indictment (Pell supra).

The Applicant’s Participation in the Conspiracy

32. I am satisfied that it was reasonably open to the jury to be satisfied beyond reasonable doubt that he was a party to a conspiracy to rob someone (albeit not necessarily a person in Karuah Street, Greenacre).

33. The evidence of the Applicant’s attendance with Guise at the park in Bankstown, meeting with the other conspirators at the shopping centre, his flight from police at the bus stop, as well his subsequent arrest and the location of his bum bag has already been described.

34. An intercepted telephone call between Guise and Curuenavuli on the afternoon of 18 November 2019 records them discussing the recruitment of co-conspirators. At one-point Curuenavuli suggests “and what about Eman”. Guise responds, “that’s five”. In another call later that night Guise tells an unknown male that he is at Bankstown “I’m just here, just with Issa and Eone”. In an intercepted call at 9.48pm on 19 November 2019, Guise asked Curuenavuli “have you spoke to …. ah Eman”.

35. In an intercepted call at 10.37pm on 19 November 2019 Guise and Curuenavuli speak to “Eman” as follows:

“OG   ‘yeah’

JC   ‘oi’

OG   ‘yeah’

JC   ‘oi is it one hundred percent’

OG   ‘yeah. Yeah. Speak to Eman. Here’

JC   ‘oi Eman’

Male Voice   ‘yeah’

JC   ‘hey is it one hundred percent’

Male Voice:   ‘yeah that’s what Pate was telling me. All he, Pate was telling me if I can get a driver. I was like yeah set’

JC   ‘alright. Oi I’m not gonna leave the area until Pate confirms that’

Male Vlice    ‘huh’

JC   I’m not gonna leave the area until Pate confirms’

Male Voice   ‘did you call him’

JC   ‘yeah I called him but he said call him in 30 minutes’

Male Voice   ‘yeah then call him, call him then’

JC   ‘but he’s down here’

Male Voice    ‘what do you mean’

JC   ‘like he’s downthese ways’

Male Voice   ‘yet set. So you get him to come past’

JC   ‘year that’s what I mean. I’m not gonna cut until I get the confirmation. Set’

Male Voice   ‘later’

JC   ‘alright’”

36. At the trial the Crown contended that the “male voice” in this conversation was the Applicant. The Crown pointed to a telephone call between the Applicant and his mother on 19 May 2020 after his arrest which was intercepted and played to the jury. The Applicant told his mother that he had seen the “brief now” and “I’m beating this [ie the charge] easy”. He told his mother about a call the prosecution said he made the “day before it” (ie, on 19 November 2019). He said that the “day ended, I stayed home” which I understand to be a reference to the fact that it was proposed to carry out the robbery on the evening of 19 November 2019 but a firearm could not be located. The Applicant’s mother told him he needed to write down that he “made this phone call the day before”. The Applicant replied:

“It was the day before the thing. I said, Oh, and it doesn’t relate to anything, do you know what I mean. I just said, oh Pate said he can get a driver, do you know what I mean.”

37. The Crown submitted that this intercept leads to the irresistable inference that it was the Applicant who participated in the telephone call the day before the attempt to committ the robbery and he answered to “Eman”. I agree. This conversation clearly conveys that he did participate in the conversation on 19 November 2019 about whether “Pate”could get a driver. The Applicant wrongly thought that there was something excuplatory in that conversation.

38. As noted for many days, the co-conspirators had discussed recruiting Eman into the conspiracy and this material demonstrates that by 19 November 2010 he had joined. This was confirmed his conduct the following day. There was undoubtedly reasonable evidence, apart from the acts or words of the co-conspirators, that the Applicant was a participant in the conspiracy (Ahern v R (1988) 165 CLR 87; [1988] HCA 39 at 100). Once that conclusion is reached the actions and words of the co-conspirators along with his own words and actions were and are available to demonstrate not just the existence of the conspiracy but his participation in it (Ahern id). In this case the only reasonable inference open on the evidence was that the Applicant was a participant in a conspiracy to rob. Having reviewed all of the evidence I am satisfied that it was reasonably open to the jury to be satisifed beyond reasonable doubt that the Applicant was a participant in a conspiracy to rob (albeit not the precise one charged).

Conclusion on Ground 1

39. I would uphold ground 1.

Ground 2: Response to Jury’s Question

40. Ground 2 of the appeal contends that the trial judge’s “approach to, and content of, attempting to address [the] jury’s uncertainty or confusion led to a miscarriage of justice.”

41. This ground concerns the trial judge’s response to the question noted above (at [12] above). As explained during her summing up, the trial judge told the jury of the necessity to be satisifed beyond reasonable doubt that the object of the conspiracy was to rob a person in Karuah Street, Greenace and that was reiterated in the document given to the jury setting out the elements of the offence. In the discussion that followed the jury’s question, the trial judge stated that the “short answer” to their question was ‘yes’. However her Honour observed that it was necessary to go “back over a few of my general directions” especially so far as the need for unanimity was concerned.

42. Her Honour called the jury back in and read the question to them. Her Honour said that she proposed to return to the document the jury had been given containing the elements of the offences, the salient parts of which are set out above (at [10]). Her Honour explained the necessity for them to be unanimous and that, with element 1, if only six of them “only get to element number 1 and do not go any further, and the other six keep on going and think something else that is not a unanimous verdict, so you really have to go through the whole process”. Her Honour then reminded them any “verdict on a whole charge must be a verdict of you all”. Her Honour asked the jury whether she had answered their question. The transcript continues:

“Juror: Its number 2

Her Honour: I know it is number 2. So, the same process with number 2.

If you are satisfied with number 1, if you are all of the opinion that number 1 is proven beyond reasonable doubt, then you go onto another element. I am not telling you that you have to go on to element number 2, but if you choose because it sort of makes sense that you go then on to element 2, then you would consier whether the Crown have proven element 2 beyond reasonable doubt.

If some of you think that the Crown have proven that element beyond reasonable doubt and some of you think that the Crown have not proven that element beyond reasonable doubt, then again that is the time for discussion about why some of you have reached that conclusion and why some of you have not reached that conclusion.

If there is disagreement about whether the Crown has proven or not proven any particular element, then you as a jury have not yet reached a verdict. Okay. But, members of the jury, can I suggest to you I do not think anybody in this Court expects a verdict in five minutes. The evidence was presented to you very efficiently. Can I simply urge you to consider the evidence that has been presented and the submissions from counsel about what you should do with that evidence.

I am fully aware that a lot of you, or some of you, might have a particular view about a partiuclar element, that is fine, I do not try to dissuade you from any of that. What I am saying is for the Crown to prove its case you must be satisfied beyond reasonable doubt of each individual element for a guilty verdict to be returned. For a not guilty verdict to be returned, all of you must be of the view that the Crown have not proven its case on any one of those elements.”

43. Her Honour then provided a similar explanation for the third element and reminded the jury that “[i]f you have not proven beyond reasonable doubt any one of those elements, and you do not have to tell me which one, if you are on that view as an entire jury, then the appropriate verdict is not guilty.”

44. Her Honour then enquired of the jury if they had any queries and observed that “We’ve got a few nods then”. The jury then retired to further consider their verdict.

45. In the jury’s absence, Counsel for the Applicant submitted that the jury should have been told that if they were not satisifed that the object of the conspriacy was to rob someone at Karuah Street then the verdict should be not guilty. The Crown Prosecutor submitted that it was not necessary for the jury to be told anything further. Her Honour did not provide the jury with any further instruction.

46. On appeal it was contended that a miscarriage of justice arose from the failure of the trial judge to correct the uncertainty or confusion said to be evident from the question the jury asked concerning the object of the conspiracy. The written submissions referred to R v Salama [1999] NSWCCA 105 where a jury sent a note querying whether an accidental discharge of a firearm was a discharge with disregard for safety but a verdict was taken before the question was answered. Kirby J (with whom Wood CJ at CL and Ireland J agreed) held that the failure to answer the question before the verdict was taken was an error justifying a new trial (at [72]). His Honour observed that the note “betrayed confusion” which “went to the heart of the charge” and “it was important that the question be answered” before a verdict was taken (at [71]). The Applicant referred to other instances where requests by a jury for assistance or answers to questions were not addressed before a verdict was taken and the jury’s verdicts was quashed (namely R v Hickey [2002] NSWCCA 474; R v Alameddine [2012] NSWCCA 63).

47. To similar effect in Gage v R [2021] NSWCCA 222 at [20] I observed that:

“One of the many functions of questions from the jury to the trial judge is to enable any possible misapprehension the members of the jury may be labouring under about the applicable law to be identified, disclosed to the parties, the subject of submissions and, if necessary, redirection (Smith v The Queen [2015] HCA 27 at [59]). It follows, that if those questions reveal a fundamental misunderstanding about the issues the jury have to decide and that misunderstanding is uncorrected, then that may constitute a miscarriage of justice. In such cases it will depend on what the issues were at the trial, what the jury were told, and what can be ascertained from an objective assessment of any communication from the jury in the context of the trial as a whole.”

48. I agree that it would have been preferable for the trial judge to include in her answer to the jury’s note an express statement to the effect it was essential for the Crown to prove beyond reasonable doubt that the object of the conspiracy was to rob a person at Karuah Street, Greenacre. However just because making that statement would have been preferable does not mean that a miscarriage of justice was occasioned by the failure to make it. Consistent with the authorities relied on the by the Applicant, if the effect of her Honour’s response was to leave the jury’s question in substance unaddressed then a conclusion that a miscarriage of justice was occasioned would most likely follow. However, considered in its totality I consider her Honour did address the jury’s question. The import of her Honour’s direction was the necessity for all the jury to be satisfied of all the elements beyond reasonable doubt before they could convict the Applicant and that included element 2 with its reference to Karuah Street, Greenacre. As I understand her Honour was concerned that, if her response only focussed on element 2 it may have the effect of suggesting that element 1 and element 3 need not be considered. Whatever the reasoning behind her Honour’s response to the jury’s question it did respond to the jury’s question in a roundabout way. For what it is worth, this jury were clearly not inhibited in speaking out about their concerns and no further direction was sought after this direction.

49. I am not satisfied that a miscarriage of justice was occasioned by her Honour’s response to the jury’s question or the summing up as a whole. I would grant leave to raise ground 2 of the appeal but reject the ground.

Conclusion

50. It follows from the conclusion in relation to ground 1 that I would allow the appeal and quash the Applicant’s conviction on the charge of which he was convicted. This Court was not asked to address whether the entry of an acquittal would preclude the Applicant being retried on a conspiracy charge that was formulated differently (see Gerakiteys at 322 per Gibbs CJ and at 337 per Deane J). On that topic I express no opinion.

51. Accordingly I propose the following orders:

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.

52. ROTHMAN J: I have had the considerable advantage of reading, in draft, the reasons for judgment of the Chief Judge at Common Law. I agree with his Honour’s conclusions as recited in his reasons for judgment and with the orders that he proposes.

53. I have now also seen the note from Wilson J and I agree with her Honour’s comments. Without in any way detracting from my agreement with the reasons for judgment of Beech-Jones CJ at CL, I wish to make comment on one issue.

54. In the past, the High Court and this Court, including me, and many other courts have used, interchangeably, the term “rational influence” and “reasonable inference”. If someone seeks to draw a conclusion of fact on the basis of indirect evidence and that conclusion of fact is irrational, the conclusion cannot be drawn and the inference does not arise.

55. The drawing inferences is plain common sense. Referring to the judgment of each of Menzies and Windeyer JJ in Jones v Dunkel, Mahoney JA, in Fabre v Arenales, said:

“There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, “plain commonsense”. A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, ‘human experience would be contradicted if’ Z did not exist: see the cases referred to in Jones v Sutherland Shire Council. It follows that the inference will or may be drawn if general human experience (plain commonsense) will not be contradicted if the inference be drawn.” (citations omitted)

56. In criminal proceedings and for the purposes of criminal proof, an inference that arises must be proved to such a degree that there is no reasonable probability that it does not exist. But in order to draw an inference to establish guilt, or that is inconsistent with guilt, assuming there is no direct evidence as to the conclusion, it must be, at least, a reasonable inference from some matter proved in evidence. It cannot be conjecture.

56. If indirect facts go no further than showing that it is possible that a fact may exist, its existence does not go beyond mere conjecture. In Carr v Baker, Sir Frederick Jordan CJ said:

“It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established: This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established.”

58. An inference can never be irrational. It either arises as a matter of common sense from other proven facts, or it does not. As a consequence, in my view, it is necessary to treat the term “rational inference” as meaning “reasonable inference”. All inferences are rational.

59. I make this comment in the knowledge that, in previous judgments, I have used the term “rational inference" and in so doing recognise there is high authority for the use of the term. I make the comment lest it be thought that an inference inconsistent with guilt is capable of arising by conjecture or otherwise than on the basis of evidence of fact and the establishment of reasonable possibilities from inferences.

60. The foregoing comments are not in any way a criticism of the eloquent reasons of the Chief Judge at Common Law. Nor do they detract from my agreement with the reasons of his Honour, the conclusions his Honour has reached or the orders to be issued.

61. WILSON J: I agree with the orders proposed by the Chief Judge at Common Law, for the reasons his Honour has given. It was both unnecessary and unwise for the Crown to frame the indictment as it did, elevating what should have been, at most, a particular of the charge to an element to be proved beyond reasonable doubt. Whilst the evidence was capable of establishing to that standard that the appellant was a participant in a conspiracy to rob some person in Greenacre when armed with a dangerous weapon, it could not establish that the person was situated in Karuah Street.

62. It must be acknowledged that it may seem a non-sensical result to order the acquittal of an appellant on the narrow basis that applies here, in circumstances where the jury concluded, as was well open to it, that the appellant conspired with others to commit a very serious crime involving the use of a loaded gun. However, the outcome is inevitable given the way in which the Crown confined and presented its case.

**********

Decision last updated: 21 December 2021