Namoa v The Queen - [2021] HCATrans 40

[2021] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S188 of 2020

B e t w e e n -
ALO-BRIDGET NAMOA
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 MARCH 2021, AT 9.44 AM

MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the appellant with my learned friends, MR R.W. HADDRICK and MR D.P. FARINHA. (instructed by Zali Burrows at Law)

MR S.J. FREE, SC: May it please the Court, I appear for the respondent, with my learned friends, MR T.O. PRINCE and MS B.E.M. ANNIWELL. (instructed by Commonwealth Director of Public Prosecutions)

KIEFEL CJ: Yes, Mr Reynolds.

MR REYNOLDS: Can I ask your Honours, if it is not inconvenient, to have three documents to hand: first of all, our written synopsis of argument; second of all, our submissions in‑chief; and, third of all, our reply because I will be referring to each of those documents in due course.

Your Honours, the principal issue for determination in this case is set out at paragraph 2 of our synopsis and that is whether two spouses alone can commit the offence of conspiracy under section 11.5 of the Code. Your Honours will understand that my client says that they cannot, and she submits that that is clear from the text of section 11.5, from the decision in LK, particularly paragraphs 107 and 131, and also from the established common law position.

If it is convenient, I would like to take your Honours briefly to the terms of section 11.5(1), which conveniently is set out in the appeal book at page 119. At about line 40 on that page, your Honours will see subsection (1) - I am not going to read it out to your Honours, but your Honours will see that there are three words there which we would underline, at least notionally. The first is in the first line, where the word “conspires” is used, and on the third and fourth lines, the word “conspiracy” is used.

Whilst we are looking at the section, can I also draw your Honours’ attention briefly to subsection (3), which is on page 120, beginning at about line 11, and the short point here is that if your Honours review that briefly, your Honours will see that it is mainly about parties and yet there is not any mention in that subsection at all of the rule about parties, which is the subject of this particular case.

Can I move then to – and I said that the decision in LK (2010) 241 CLR 177 was critical. I also said that there were two critical paragraphs, paragraph 107 and also paragraph 131 and, if it is convenient, I would like to take your Honours very briefly to that decision. If I can…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Namoa v The Queen

Details

AGLC: Namoa v The Queen [2021] HCATrans 40
Case: [2021] HCATrans 40
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Namoa, against his conviction for murder. The dispute centred on the admissibility of certain evidence during his trial.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character, which the applicant argued was unfairly prejudicial and should have been excluded under s 137 of the *Evidence Act 1995* (NSW). A further issue concerned the proper application of the "tendency evidence" provisions of the *Evidence Act 1995* (NSW), specifically whether the evidence of prior convictions was admissible to prove a tendency to commit the offence charged.

The High Court held that the evidence of prior convictions was not admissible to prove a tendency to commit the offence charged, as it did not establish a sufficient degree of relevance or probative value for that purpose. Furthermore, the Court found that the prejudicial effect of admitting the evidence of prior convictions and prior bad character substantially outweighed its probative value, and therefore, its admission under s 137 of the *Evidence Act 1995* (NSW) constituted a miscarriage of justice. The Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders