Namoa v The Queen

[2021] HCA 13

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

ALO-BRIDGET NAMOA  APPELLANT

AND

THE QUEEN  RESPONDENT

Namoa v The Queen

[2021] HCA 13

Date of Hearing: 11 March 2021
Date of Judgment: 14 April 2021

S188/2020

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

G O'L Reynolds SC with R W Haddrick and D P Farinha for the appellant (instructed by Zali Burrows at Law)

S J Free SC with T O Prince and B E M Anniwell for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Namoa v The Queen

Criminal law (Cth) – Conspiracy – Where s 11.5(1) of Criminal Code (Cth) established offence of conspiracy – Where appellant charged with conspiring to do acts in preparation for terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code – Whether s 11.5 applies to spouses who agree between themselves, and no other person, to commit offence against Commonwealth law – Whether interpretation of s 11.5 of Criminal Code affected by any common law rule that spouses alone cannot conspire – Whether references in s 11.5 of Criminal Code to "person" and "another person" include two spouses – Whether meaning of "conspires" and "conspiracy" in s 11.5 of Criminal Code incorporates any common law rule that spouses alone cannot conspire.

Words and phrases – "another person", "common law rule", "conspiracy", "conspires", "doctrine of unity", "person", "single legal personality of spouses".

Criminal Code (Cth), s 11.5.

1. KIEFEL CJ.   I agree with Gleeson J.

2. GAGELER J.   I agree with Gleeson J.

3. KEANE J.   I agree with Gleeson J.

4. GORDON J.   I agree with Gleeson J.

5. EDELMAN J.   I agree with Gleeson J.

6. STEWARD J.   I agree with Gleeson J.

7. GLEESON J. This appeal concerns the interpretation of s 11.5(1) of the Criminal Code (Cth) ("the Code"), which creates a statutory offence of conspiracy, and whether that offence applies to spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth. The appellant was found guilty by a jury of conspiring to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Code. The offence occurred between 8 December 2015 and 25 January 2016. Prior to the trial, the trial judge rejected an application for a permanent stay which had been made on the basis that the appellant and her co-conspirator married on 30 December 2015 and, as husband and wife, could not be guilty of conspiracy under the Code[1].

   [1]R v Bayda [No 3] (2018) 274 A Crim R 1 at 18 [78]-[79] per Fagan J.

8. The appellant contends that there is a common law rule that spouses alone cannot conspire; and that this rule affects the meaning of "conspires" and "conspiracy" in s 11.5 of the Code. Although the…