By Paul Gregoire and Ugur Nedim
Emmanuel Rubasha and Obed Guise were in Bankstown on the evening of 20 November 2019, waiting for Jesse Curuenavuli to pick them up in his mother’s car. Travelling with Curuenavuli were two others, Brooke Mohi and Albert Nitiva.
The trio travelling in the car collided with another in Bankstown, so Rubasha and Guise met them in a park near where the damaged car was parked. The group of five then entered a local shopping mall for about 20 minutes, exiting at 8.55 pm.
A number of NSW police officers subsequently approached the group as they were standing at a bus stop. The officers arrested Mohi, while the remaining group members took off. Police chased the others down, eventually catching them all, having found Rubasha and Nitiva in the carpark of another local shopping centre.
The arresting officers found that Mohi was in possession of firearm, being a .22 calibre rifle, with one round in the chamber and eight more in a plastic bag. The items were held in a backpack. He was also found to be in possession phone that police had been surveilling, as did Curuenavuli and Guise.
Police alleged the group were conspiring to commit a robbery, using the firearm, on Karuah Street in Greenacre.
During an interview following arrest, Rubasha said he wasn’t privy to any such robbery, but was there with a view to smoking cannabis with Guise in Bankstown.
A common law offence
A NSW District Court jury found Rubasha guilty on one count of conspiracy to rob whilst armed with a dangerous weapon on 19 February 2021.
Conspiracy to perpetrate a crime is a common law offence, which means it doesn’t appear in legislation. Rather, it’s been established over time via case law. In other words, the offence of conspiracy has been developed via precedents set out in various criminal case rulings.
There are a number of conspiracy offences set out in NSW legislation, including conspiracy to murder under section 26 of the Crimes Act 1900 (NSW).
Unless a discrete conspiracy offence appears in legislation, it is to be considered under the common law, as was the case with Rubasha’s prosecution.
As conspiracy is a generally common law offence, the penalties are at large, which means determined by the court. And while there is no prescribed maximum sentence, the penalty must not be excessive considering all of then circumstances of the case.
There are a number of elements at common law that must be proven in order to establish that an accused has committed a conspiracy, and NSW District Court Judge Helen Syme set out three that applied to Rubasha’s alleged crime for the jury to consider.
The first was that there was an agreement between two or more people to commit an unlawful act, with the second element consisting of whether the agreed to unlawful act specifically consisted of robbing an unknown person on Karuah Street in Greenacre using a dangerous weapon.
The third element was whether Rubasha became part of the conspiracy on 19 November, which was later than some of the others, with police contending the plan began on the night of 18 November, when Curuenavuli and Guise were spotted driving up and down Karuah Street.
On receiving the guilty verdict, Judge Syme went on to sentence Rubasha, on 9 April 2021, to 2 years and 10 months imprisonment, with non-parole set at 1 year and 8 months.
Conspiracy too specific
Rubasha appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) on 3 December 2021. He did so based on two grounds: that the verdict was unreasonable given the scope of the suggested conspiracy, and that the judge made an error when answering a jury question.
Regarding the first ground, Rubasha’s lawyer raised two points: that it was not open to the jury to be satisfied beyond reasonable doubt that the subject of the robbery was a person on Karuah Street and that it was neither open to find his client was involved in any conspiracy.
Chief Judge at Common Law Robert Beech-Jones explained that both points were circumstantial, meaning that the only logical conclusion based on the proven circumstances must reflect these outcomes and no other potential scenarios.
So, in regard to the first point, the circumstances need to convey that the planned robbery was set to occur against an unknown person on Karuah Street in Greenacre and no other possibilities.
The police had been surveilling Curuenavuli and Guise on 18 November, listening to their calls and monitoring their driving. But while the pair did drive up and down Karuah Street, they neither stopped or slowed at any point, and they further drove in a similar manner along other streets.
On the point of whether it was reasonable to consider Rubasha was part of a conspiracy to rob, his Honour found that based on the evidence from a number of intercepted phone calls the only rational conclusion was that the accused was recruited and willing to take part in the unlawful act.
So, the first ground was upheld due to the conspiracy to robbery charge having been specifically linked to Karuah Street, while it was easy, based on the known circumstances, to consider the robbery may have been planned for another location.
Street specific
The second ground entailed the jury having asked the sentencing judge whether the whole case fell apart if they were unsure about the robbery being specifically set for Karuah Street. And in the absence of the jury, Judge Syme had remarked in response, “The short answer to that is yes.”
Her Honour then called the jury back and addressed their question somewhat indirectly, in that she explained that they must go through each element of the offence and then agree with them in entirety to find the accused guilty. So, she didn’t specifically address the Karuah Street inquiry.
Yet, Judge Beech-Jones found this second ground was not made out, as, while the primary judge hadn’t addressed the jury question directly, she had touched upon it with her explanation on how to come to a verdict.
Free to go
On 21 December 2021, his Honour ordered that, in light of ground one having been made out, Rubasha’s April 2021 conviction should be quashed and an order of acquittal be entered.
And NSWCCA Justices Stephen Rothman and Helen Wilson both agreed with their colleague’s orders.
