New South Wales Court of Criminal Appeal CITATION : Regina v Murray [2001] NSWCCA 289 FILE NUMBER(S) : CCA 60731/96 HEARING DATE(S) : 17 July 2001 JUDGMENT DATE : 30 July 2001 PARTIES : Regina v James Francis Murray JUDGMENT OF : Stein JA at 1; O'Keefe J at 47; Simpson J at 48 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0812 LOWER COURT JUDICIAL Hosking DCJ OFFICER : COUNSEL : J C Papayanni - Appellant (Murray) E A Wilkins - Respondent (Crown) SOLICITORS : Jeffreys & Associates - Appellant (Murray) S E O'Connor - Respondent (Crown) CATCHWORDS : CRIMINAL LAW - armed robbery - conspiracy to commit - essential agreement - means required to implement the agreement - CRIMINAL LAW - conspiracy - whether impossible to commit the offence - EVIDENCE - admissability of statements - whether 'verballed' by police - exercise of discretion - EVIDENCE - admission of listening device tapes - whether terms of indictment excludes tapes - CRIMINAL LAW - sentence - whether conduct of police informer mitigates sentence Evidence Act 1995 Criminal Appeal Rules 1952 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 Crimes Act 1900 Ex Parte Bignell (1915) 32 WN (NSW) 91 CASES CITED: M v R (1994) 181 CLR 487 R v Dossi (1918) 13 Cr App R 158 R v Stringer [2000] NSWCCA 293 DECISION : 1) Appeal against conviction dismissed. 2) Leave granted to appeal against sentence. 3) Appeal against sentence dismissed. IN THE COURT OF CRIMINAL APPEAL 60731/96 STEIN JA O'KEEFE J SIMPSON J Monday, 30 July 2001 REGINA v James Francis MURRAY JUDGMENT 1 STEIN JA: Introduction 2 On 31 October 1996 the appellant, James Francis Murray, was found guilty by a jury of a charge that between 5 and 11 February 1991 he conspired with Eddie Kaadi to rob, while armed with an offensive weapon, certain named employees of Armaguard. The charge related to an agreement to commit an armed robbery on the Armaguard employees at the Macquarie Shopping Centre on 11 February 1991, following the collection of the weekend takings of the Grace Bros store situated within the Centre. 3 The appellant was sentenced to a minimum term of four years and ten months to commence on 11 March 2000, being the date of expiration of the minimum term he was then serving for an unrelated offence, and to expire on 11 January 2005. An additional term of 15 months was specified to commence on 11 January 2005 and expire on 11 April 2006. The co-conspirator, Kaadi, had been found guilty at a separate trial held earlier. 4 The indictment, to which the appellant pleaded not guilty, is as follows: That he between 5 February 1991 and 11 February 1991 at Sydney in the State of New South Wales, did conspire with Eddy Kaadi to rob whilst armed with an offensive weapon employees of Armaguard, namely Gregory Richard Hunt, Trevor Arthur Gehl and Robert James Webeck of divers large sums of money. 5 The Notice of Appeal dated 15 December 1997 specifies five grounds of appeal against conviction. The appellant also appeals against sentence. Grounds 1 to 4 are pressed while ground 5 is abandoned. Grounds 1 to 4 are as follows: 1. His Honour erred in law in directing and failing to direct the jury adequately and properly as to conspiracy and the elements of the offence. 2. His Honour erred in law in failing to exercise his discretion under the Evidence Act 1995 in particular Sections 137, 138 re evidence of Det. Lambie and Det Sgt. Brown. 3. His Honour erred in law in admitting the evidence in paragraph 2. 4. The verdict of the jury was unsafe and unsatisfactory. 6 It may be noted that the submissions of counsel for the appellant, Mr Papayanni, ranged wider than the Grounds of Appeal. Ground 1 7 The submission on behalf of the appellant makes the following points, said to be errors in the summing up. (a) Failure to direct the jury that the conspiracy was to commit the particular armed robbery. (b) Failure to summarise to the jury the evidence relating to the elements in the charge. (c) It was impossible for the offence to have been committed because the agreement was to rob the Armaguard van in the parking lot of the Macquarie Centre, whereas the procedure had been changed and the van proceeded to the loading dock at the Centre. (d) Failure to direct the jury on the mens rea of conspiracy, namely the requirement that the appellant must have intended to achieve the common design. 8 None of these directions were sought by experienced defence counsel at the trial and leave is accordingly required. 9 Although I am unpersuaded that leave ought be granted, I will deal with each of these sub-grounds seriatim on their merits. 10 (a) It is the submission of Mr Papayanni that according to the evidence, the agreement (if there was one) was to commit the particular offence set forth in the indictment. The agreement was to rob the particular Armaguard employees in the parking lot of the Centre, not in the loading dock. It is submitted that his Honour failed to put the true agreement to the jury and failed to sufficiently sum-up on it. 11 Both counsel agree that it is necessary to define the agreement. The appellant submits that his Honour did this too widely and the agreement was narrower and more specific. The Crown supports his Honour's directions on what the agreement comprised. 12 His Honour commenced his summing up by reading the indictment to the jury. At pages 10 - 11 of the summing up his Honour said: In this case the allegation is that it was intended to divest the Armaguard employees of a large amount of cash by putting them in fear by pointing this quite fearsome weapon at them and the Crown must establish that the plan included robbing these named employees, who were named in the indictment, each of whom gave evidence before you, of money they had in their immediate and personal care and responsibility. 13 The summing up then continued in terms of the specific agreement alleged in the indictment. For example: … If there was an agreement between Kaadi and the accused to commit this armed robbery, well then there would be a conspiracy and if you accept that, it would be open to you to convict. [My emphasis added] 14 Again, his Honour directed the jury that: … in order for you to find the accused guilty, the Crown must satisfy you beyond reasonable doubt so far as this accused is concerned of three matters to prove he was party to a conspiracy. First of all, that there was an agreement to rob Armaguard at the Macquarie Centre; … [Emphasis added] 15 Thereafter his Honour directed the jury on the details of the evidence with regard to the specific armed robbery at the Macquarie Centre, being the subject of the indictment. 16 In my opinion, his Honour instructed the jury on the fundamental matters which had been agreed upon between the conspirators. The essential agreement between the appellant and Kaadi was to rob the named Armaguard employees on 11 February 1991 at the Macquarie Centre. It was not a term of the agreement but a peripheral part of the joint plan to rob the Armaguard employees from a lift within the Centre after they had parked in the parking area. The agreement contended for by counsel for the appellant was not the agreement the subject of the indictment. 17 In any event, the evidence indicates that the conspirators did not have an immutable plan, and that they accepted that changes may have to be implemented if circumstances altered. For example, the possibility of Armaguard having a back-up vehicle was considered. The matters relied on by the appellant are concerned with the means required to implement the fundamental agreement, not with the agreement itself. In my opinion, his Honour properly instructed the jury on the agreement between the appellant and Kaadi and this aspect of ground 1 should be dismissed. 18 (b) There is no substance in the submission that his Honour failed to summarise the evidence with respect to the elements in the charge. Indeed, he did so in some considerable detail. A fair reading of the summing up confirms this. It may be that this aspect of the submission made on behalf of the appellant is more directed to criticism of the judges' Summing-Up as erroneous because of his Honour's use of the words 'being involved' and 'participated'. I can see no error in his Honour's use of the words when considered in their context. The words used did not have the capacity to mislead the jury. The direction on conspiracy reveals no error. 19 (c) Given the content of the agreement, it is difficult to comprehend how it can be asserted that it was impossible to commit the offence which was the object of the conspiracy. The conspirators discussed the need to change the detail of the plan on the day if necessary. Their plan called for Stansfield (who, unbeknown to the appellant and Kaadi, was a wired-up police informer) to be the look-out at Grace Bros once they arrived at the centre and to give the appellant and Kaadi 'the nod'. 20 There was no reason why the conspirators could not have changed the detail of their plan on the day given that they knew they would have to wait half an hour while the Armaguard employees collected the moneys from Grace Bros. There was evidence (from Mr Webeck of Armaguard) that regardless of whether the loading dock or the car park was used by their van, it was necessary for the guards to walk through a public area to get to the Grace Bros pay office, and that the lifts were used by them every day, see T 173 - 174. It follows that the conspirators could still gain access to the guards to rob them. There is no evidentiary basis for the assertion that it was impossible to commit the offence the subject of the agreement between the conspirators. In the circumstances it is unnecessary to address the authorities and any conflict which may be inherent in them. R v Barbouttis (1995) 37 NSWLR 257, R v Smith [1975] AC 476, DPP v Nock [1978] AC 979, R v Mai [1992] 26 NSWLR and R v Lee (1990) 47 A Crim R 187 21 (d) This submission is also lacking in substance. His Honour did sum up on the mens rea of the conspiracy. His Honour referred to the requirement of the Crown to establish the necessary intention by the conspirators to carry out the common design to rob the Armaguard employees. On pages 10 and 11 of the summing up, his Honour referred on four occasions to the need for the Crown to prove that the appellant intended to achieve the common design to carry out the armed robbery. This discussion culminated in his Honour directing the jury that the Crown must 'prove an intention by the conspirators to permanently deprive the owner of the money …'. 22 In my opinion, the various ways in which ground 1 is put ought all be rejected. Grounds 2 and 3 23 These grounds relate to the admission of two statements alleged to have been made by the appellant at the scene of the arrest at the Macquarie Centre and about an hour later at the Eastwood Police Station. The first statement was that police alleged that the appellant said 'Fucking dog. Shouldn't have trust him'. The later statement at the police station was to similar effect but contained a little more detail. Neither conversation was recorded by audio or video. This was in February 1991, before the days of the ERISP. The second statement was recorded by a police officer in a note book but not signed by the appellant. A voir dire was held as to the admissibility of the statements. The appellant denied making the statements. He also alleged that he was assaulted by police at the scene of his apprehension at the Macquarie Centre. However, he did not claim that the statements were made because of the assault. He simply denied that he made them. 24 Although his Honour was critical of the police evidence, especially the failure to call Detective Inspector Davidson, he concluded that he was 'unable to make a finding that excessive force was used' (in the arrest of the appellant). He added: Personally, I doubt if I were the ultimate tribunal of fact that I would be satisfied to the requisite degree that the accused uttered the words attributed to him, but that is not the test. Whether or not there was a fabrication of evidence by police is a jury question. 25 His Honour observed that the appellant was in a catch-22 situation. He said: On the one hand he denies the conversation, but on the other he alleges police brutality. I do not totally reject the evidence of the accused, however, his testimony goes to the question of fabrication, not unfairness. 26 His Honour ruled that s 84 of the Evidence Act 1995 was inapplicable and this is not challenged. He continued concluding that he was unable to make a finding that the appellant had been 'verballed' by the police. 27 His Honour's conclusion was as follows: … no proper basis exists, in my opinion, for me to reject evidence of the alleged conversation at North Ryde, even on a discretionary basis . [My emphasis added] 28 Although the Notice of Appeal refers to ss 137 and 138 of the Evidence Act, the submission made on the appellant's behalf also embraces ss 88, 90, 135 and 142 of the Act. 29 His Honour discussed the dispute between the appellant and the police about the authenticity of the alleged admissions during his summing up. He suggested to the jury that they decide the case on the other evidence (to which he referred) rather than the disputed admission. While it was a matter for the jury, as the judge of facts, that is what he said he would do if he was the judge of fact. Later his Honour said: I have already warned you about the extreme care that you should take in evaluating that material. 30 From the above, it is apparent that his Honour found that no issue of fairness arose and directed that whether or not the words were said by the appellant was a matter for the jury. Also, his Honour did not find any police misconduct associated with the arrest or interview. His Honour further indicated that there was no discretionary basis to reject the evidence. Although his Honour did not specifically refer to the relevant sections in Part 3.11 of the Evidence Act, it is clear from his Honour's remarks that he considered his discretion to exclude the evidence, as well as the discretion contained in s 90 of the Act. His Honour was a very experienced judge and it is difficult to conclude that he was not referring to the provisions in the Evidence Act regarding the discretion to exclude evidence and admissions, when he ruled that the evidence should not be rejected on discretionary grounds. 31 In any event, his Honour made his view of the particular evidence very plain to the jury. He invited the jury to ignore it and to decide the case on other evidence. In this circumstance, it is hard to perceive how the admission of the evidence, assuming it to be in error, could have lead to a miscarriage of justice. It is likely that the jury decided the case on the very strong evidence against the appellant to be found in the listening device tapes, together with the surveillance evidence of 8 and 11 February 1996 and the contents of the motor vehicle when the arrest took place. In the vehicle was a sawn-off 12 gauge shot gun, white gloves, a red bandanna (with cut-out eye-holes) and sunglasses. The appellant had also dyed his hair black prior to the proposed robbery. All of this material could have been relied on by the jury to conclude that the appellant was guilty beyond reasonable doubt. The contested evidence of the so-called 'admissions' pales into insignificance alongside the balance of the evidence against the appellant. This is all the more so in light of his Honour's remarks to the jury about the care which should be taken in considering the evidence. 32 Finally, should the admission of the evidence be in error, the proviso to s 6 of the Criminal Appeal Act 1912 ought be applied. The evidence did not mean that the appellant was deprived of the chance of an acquittal. Grounds of appeal 2 and 3 are rejected. Ground 4 33 It is submitted that the verdict of the jury was unsafe and unsatisfactory. A number of 'dot points' are relied on in the written submissions filed on behalf of the appellant. Little was added in the oral address of counsel. None of the points sought to be made have any cogency to this ground. On the whole of the evidence adduced at the trial, it was plainly open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant (M v R (1994) 181 CLR 487). Further Submission 34 During his oral address to the Court, counsel for the appellant submitted that the listening device tapes of 11 February 1991 should not have been admitted into evidence. It was submitted that this was so because the first and last mentioned dates in the indictment should be excluded from consideration on the basis that the indictment alleges the commission of the conspiracy between 5 and 11 February 1991. 35 The trial took place in 1996. The indictment was not demurred to nor was any objection made to its form. No objection to the admission of the tapes was made to the court on the basis now sought to be advanced. If objection had been taken to the form of the indictment, it could doubtless have been cured. 36 Leave to raise this ground is required under rule 4 of the Criminal Appeal Rules. I am firmly of the view that leave should be refused. The point is, in any event, lacking in merit and I will briefly state why that is so. 37 In R v Dossi (1918) 13 CR App R 158 it was stated that: From time immemorial a date specified in an indictment has never been a material matter unless it was actually an essential part of the alleged offence … 38 In R v Stringer [2000] NSWCCA 293 10 August 2000, Grove J said: Although it is usual to insert the date or dates between which offences alleged to have been committed, time has been stated to be of the essence in four situations, namely: (i) when an act is criminal only when done within a certain time of some other act or event; (ii) when it is an essential ingredient of a particular offence that certain consequences should follow a particular act; (iii) when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night; and (iv) when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged. 39 See now s 58(g) of the Criminal Procedure Act 1986 and, prior thereto, s 360 of the Crimes Act 1900. 40 Time is not of the essence with respect to the offence alleged in the subject trial and none of the exceptions mentioned in Stringer apply. The evidence of the events of 11 February 1991 were clearly admissible to prove the conspiracy charged. 41 To the extent that remarks made by Ferguson J in Ex Parte Bignell (1915) 32 WN (NSW) 91 are relied on, it is sufficient to note that the remarks were obiter and related to an alleged defect in an information before a magistrate. Sentence 42 It is argued that the sentence is excessive. In particular, it is submitted that the additional term of 15 months was about one-quarter of the sentence (of 58 months) and that, in the absence of special circumstances, his Honour did not explain why it was not one-third. It is also submitted that the sentence should have been mitigated because of the conduct of the police informer in instigating or, at least, encouraging the offence. 43 I am firmly of the view that the sentence appeal should be dismissed. Bearing in mind the serious nature of the offence, involving a sawn-off shot-gun (albeit unloaded) and the appellant's appalling criminal history, the sentence may be seen to be lenient. His Honour was clearly entitled to find that there were no special circumstances given that the appellant was unlikely to benefit from rehabilitation. The conduct of the police informer provides no basis to reduce the sentence. It is by no means clear that he instigated the planned robbery or encouraged the appellant to participate. 44 It is plain that the appellant willingly entered into the agreement and participated in its furtherance. The tapes reveal this to be the fact. There were, in fact, little or no mitigating factors. 45 Notwithstanding the relatively short additional term, I do not believe that this Court should intervene. Overall, the result of the sentence was a fair one and within the discretionary range available to the trial judge. While leave to appeal against sentence should be granted, the appeal should be dismissed. Orders 46 1. Appeal against conviction dismissed. 2. Leave granted to appeal against sentence. 3. Appeal against sentence dismissed. 47 O'KEEFE J: I agree with Stein JA. 48 SIMPSON J: I agree with the orders proposed by Stein JA and with his reasons therefor. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.