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Court of Criminal Appeal 30 July 2001

Regina v Murray

[2001] NSWCCA 289

Theft & propertyPublic order & justice offences
CRIMINAL LAW ARMED ROBBERY CONSPIRACY TO COMMIT ESSENTIAL AGREEMENT CRIMINAL LAW CONSPIRACY

Citation: Regina v Murray [2001] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 30 July 2001
Judge(s): Stein JA; O'Keefe J; Simpson J

Background

The appellant was convicted by a jury in the District Court of conspiring with a co-offender to rob, while armed with an offensive weapon, named employees of Armaguard at the Macquarie Shopping Centre on 11 February 1991. The planned robbery concerned the collection of weekend takings from a Grace Bros store within the Centre. The co-conspirator had been convicted at a separate earlier trial.

A police informer, unbeknown to the appellant and his co-offender, had been involved in the planning and was fitted with a listening device. Tapes from that device formed part of the prosecution evidence. The appellant was sentenced to a minimum term of four years and ten months, to commence after the expiry of a minimum term he was already serving for an unrelated offence, with an additional term of 15 months.

The appellant appealed against both conviction and sentence.

  • Whether the trial judge adequately directed the jury on the elements of conspiracy, including the nature of the agreement and the required mental element
  • Whether it was legally impossible to commit the offence because the Armaguard van's route had changed from the parking lot to a loading dock
  • Whether the trial judge erred in admitting statements from two police detectives, including by failing to exercise discretion under ss 137 and 138 of the Evidence Act 1995
  • Whether listening device tapes were admissible, given the appellant's argument that the terms of the indictment excluded their use as evidence
  • Whether the sentence was excessive, and in particular whether the conduct of the police informer warranted mitigation

Decision

Conspiracy directions (Ground 1): The Court found no error in the trial judge's summing up on the nature of the agreement. The essential agreement was to rob the named Armaguard employees at the Macquarie Centre on the relevant date. The Court held that the specific location within the Centre (parking lot versus loading dock) concerned only the means of implementing the agreement, not the agreement itself. The conspirators had also acknowledged the possibility of varying their plan if circumstances changed, which undermined any suggestion that a change in the van's route made the plan immutable or fundamentally different.

Impossibility: The Court rejected the argument that the offence was impossible to commit. Because the conspirators had discussed adapting their approach in response to changing circumstances, there was no reason why the agreement could not have been carried out. The police informer's role as a look-out at Grace Bros did not render commission of the offence impossible.

Admissibility of evidence: The Court was not persuaded that the trial judge erred in admitting the detectives' evidence or in the exercise of discretion under the Evidence Act 1995. On the listening device tapes, the Court rejected the argument that the indictment's terms confined the admissible evidence to events on 11 February 1991 alone, finding that earlier events were clearly admissible to prove the conspiracy charged.

Sentence: The Court declined to intervene on sentence. Given the seriousness of the offence (which involved a sawn-off shotgun, albeit unloaded) and the appellant's significant criminal history, the Court considered the sentence may even have been lenient. The Court rejected the submission that the police informer's conduct warranted a reduction, finding it was not clearly established that the informer had instigated or encouraged the appellant's participation. The trial judge was entitled to find no special circumstances justifying a longer additional term, given the appellant's poor prospects for rehabilitation.

Orders Made

  • Appeal against conviction dismissed
  • Leave granted to appeal against sentence
  • Appeal against sentence dismissed

Key Takeaways

  • In a conspiracy charge, the essential agreement is defined by its core criminal object, not by the specific means the parties intended to use to carry it out. Changes to peripheral operational details do not alter the fundamental agreement.
  • A conspiracy is not impossible to commit merely because circumstances changed after the agreement was formed, particularly where the parties themselves contemplated adapting their plan in response to changed conditions.
  • The Court of Criminal Appeal confirmed that evidence of events preceding the date specified in a conspiracy indictment is admissible to prove the existence of the alleged agreement, provided it is relevant to the charge.
  • Conduct by a police informer involved in the planning of an offence does not automatically mitigate sentence. The informer's role must be clearly established as having instigated or materially encouraged the offender's participation before it can weigh in mitigation.
  • No error in a summing up will be treated as a ground of appeal where experienced defence counsel at trial did not seek the relevant direction, without first obtaining leave from the appellate court.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 137, 138
- Criminal Appeal Rules 1952 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 58(g)
- Crimes Act 1900 (NSW), s 360

Cases:
- Ex Parte Bignell (1915) 32 WN (NSW) 91
- M v R (1994) 181 CLR 487
- R v Dossi (1918) 13 Cr App R 158
- R v Stringer [2000] NSWCCA 293