Citation: Rubasha v R [2021] NSWCCA 319
Court: NSW Court of Criminal Appeal
Date: 21 December 2021
Judge(s): Beech-Jones CJ at CL; Rothman J; Wilson J
Background
The appellant was convicted in the District Court of conspiracy to rob, following a trial before Judge Syme and a jury in February 2021. The indictment alleged that, between 17 and 21 November 2019, the appellant conspired with four named co-offenders to rob a person at Karuah Street, Greenacre, whilst armed with a dangerous weapon. The jury returned a guilty verdict on 19 February 2021, and the appellant was sentenced to two years and ten months imprisonment.
The Crown's case rested on telephone intercepts, physical surveillance, CCTV footage, aerial surveillance, and DNA evidence. One co-offender was arrested in possession of a backpack containing a loaded shortened .22 calibre rifle. The appellant was found near a bumbag containing items including a glove, and DNA analysis identified him as a major contributor to a sample taken from that glove.
The critical feature of the trial was that the Crown repeatedly and consistently confined its case to proving the object of the conspiracy was to rob someone specifically at Karuah Street, Greenacre. Both the indictment and the Crown's conduct at trial treated the street location as an element of the offence that had to be proved beyond reasonable doubt.
Legal Issues
- Whether the verdict was unreasonable or unable to be supported by the evidence, given the Crown confined its case to a conspiracy to rob at a specific street address
- Whether the evidence was sufficient to establish that the appellant was a participant in the conspiracy
- Whether a miscarriage of justice arose from the trial judge's direction to the jury in response to a jury question about the importance of the Karuah Street location
Decision
On the first and dispositive ground, the Court of Criminal Appeal held that the verdict was unreasonable and could not be supported by the evidence. Because the Crown had framed and prosecuted the case entirely on the basis that the object of the conspiracy was to rob a person at Karuah Street specifically, it was bound to prove that particular conspiracy. The evidence, while capable of establishing a conspiracy to rob someone in Greenacre armed with a dangerous weapon, could not establish beyond reasonable doubt that the target location was Karuah Street.
The jury itself revealed its difficulty with this issue by asking whether the case would "fall apart" if they were not sure the planned robbery was at Karuah Street. The trial judge acknowledged in the absence of the jury that the short answer was yes. The Court confirmed that the Crown, having confined itself to that precise allegation, had to prove it to the requisite standard, and the evidence fell short.
The Court noted that nothing in the judgment should be taken as holding that the Crown was required to particularise the location in the way it did. The judgment was expressly directed to the principle that the Crown must prove the conspiracy it actually alleged and prosecuted, not some other conspiracy. The question of whether the indictment could have been amended did not arise.
The remaining grounds, including the sufficiency of evidence that the appellant was a participant in the conspiracy and the direction given in response to the jury question, were rejected. Wilson J observed that the evidence was well capable of establishing the appellant's participation in a conspiracy to rob someone in Greenacre whilst armed, but that the specific Karuah Street element could not be proved to the required standard. The Court expressed that the acquittal may appear anomalous in the circumstances, but described the outcome as inevitable given how the Crown had conducted its case.
Orders Made
• Agreement with the orders proposed by the Chief Judge at Common Law
• Acquittal of the appellant on the basis that the Crown could not establish beyond reasonable doubt that the person was situated in Karuah Street
Key Takeaways
- The Court of Criminal Appeal confirmed that where the Crown confines and presents its case on a specific factual basis, it must prove that case and not some broader or differently framed version of it.
- A verdict of guilty for conspiracy to rob was set aside as unreasonable where the indictment and the Crown's entire trial conduct tied the object of the conspiracy to a particular street, but the evidence could not establish that location beyond reasonable doubt.
- Sufficient evidence existed to prove the appellant's participation in a conspiracy to rob someone in Greenacre whilst armed with a dangerous weapon, but that broader finding could not sustain the conviction as charged.
- Rothman J noted, in a brief concurrence, that the term "rational inference" in this area of law is better understood as meaning "reasonable inference," since all inferences are, by definition, rational, and an inference either arises from proven facts as a matter of common sense or it does not.
- Wilson J acknowledged the apparent incongruity of ordering an acquittal where the jury was well entitled to conclude the appellant had conspired to commit a serious armed offence, but confirmed the outcome was compelled by the way the Crown framed and confined its prosecution.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Cases:
- 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