Namoa v The Queen

[2020] HCATrans 163

[2020] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S68 of 2020

B e t w e e n -

ALO-BRIDGET NAMOA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 13 OCTOBER 2020, AT 2.23 PM

Copyright in the High Court of Australia

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

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

NETTLE J:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, this case raises the issue of who can be parties to a criminal conspiracy and in particular whether a husband and wife can be parties to a criminal conspiracy both under the Criminal Code (Cth) and the common law. The issue arises under section 11.5(1) of the Code, which can be found at page 160 in the application book at line 40. Can I take your Honours to that subsection very briefly. Your Honours will see that the subsection states that:

A person who conspires –

I underline that word:

to commit an offence . . . is guilty of the offence of conspiracy to commit that offence ‑

et cetera.  Your Honours will have observed that the subsection uses the words “conspire” and “conspiracy” three times, a matter that I will come back to in a moment.

The Court of Criminal Appeal held that under section 11.5 spouses could be parties to a criminal conspiracy.  My first and principal submission is that that conclusion is directly inconsistent with the reasoning of this Court in LK, which your Honours have been given copies of.  Can I attempt to make that submission good by reference to five propositions, which I will put to your Honours now.

The first proposition is this, that if your Honours go to paragraph 107 of LK, which is on page 54, the plurality there refer, at the beginning of the paragraph, to the words “conspires” and “conspiracy” in section 11.5(1).  They say a couple of things that are relevant.  Firstly, in line 5 they say that the words “conspire” and “conspiracy”:

had an established meaning within the criminal law at the time the Code was enacted –

which was in 1995.  Further, at line 8 they say the words “conspire” and “conspiracy” in the Code are:

intended to be understood by reference to that legal meaning –

at common law.  Pausing there, what the plurality are saying is that the words “conspire” and “conspiracy” in the subsection are to be understood by reference to their meaning at common law.  Now, that is subject to one qualification, and this is my second point, that your Honours will see from paragraph 107 the qualification to that which is in the third line is that that is:

subject to express statutory modification –

So, again, pausing there, “conspire” and “conspiracy” are to be understood as having their common law signification unless the words of the Code oust the common law expressly if you do not take either of those first two propositions to be controversial. 

The third point, and I submit this is probably the critical point, is if your Honours go to paragraph 131 of LK which is at page 231, about halfway down that paragraph the plurality refer to the word “conspires” and its established meaning at common law and they make this critical point, and I quote:

may be taken to include the parties to the conspiracy ‑

In other words, the question of who are conspirators under the Code is to be determined by reference to the common law.  So, again, to repeat, that paragraph is there saying that the parties to a conspiracy under this Code, or those who may be parties, are determined by reference to the common law as established in 1995 subject only to express statutory modification.

My fourth point is that – again, this is not controversial so far as this application is concerned – as at 1995 it was very well established at common law that spouses alone could not be conspirators, that is, could not be parties to a criminal conspiracy.  Your Honours will have seen from the respondent’s submissions at paragraph 23 on page 201 that the Crown concedes that point for the purposes of this application. 

That is not surprising because there are decisions of the Privy Council, Canadian Supreme Court, New Zealand Court of Appeal, Hong Kong Court of Appeal, Queensland Court of Appeal, South Australian District Court and other authorities which say just that.  Indeed, Lord Oliver – or Justice Oliver as he was at the time – said that this proposition was one about which there was no doubt.

So, if that was the established common law position at 1995, that is, that spouses alone could not be conspirators, then in LK, as authority for the proposition that under section 11.5(1) of the Code spouses cannot be conspirators unless the Code expressly asks the common law position, that is my fifth proposition, that is to address the question of whether the Code expressly asks the common law position.  We submit that to suggest that would not be an arguable proposition. 

The Court of Criminal Appeal did not determine who was an express ouster.  They did refer, if your Honours go back to the application book at page 160, at line 40, to the word in the subject:

A person who conspires with another person –

At paragraph 85, at application book 181, they held that that was:

sufficiently clear –

to cover husband and wife.  They did not find that that amounted to an express ouster.  There would be two further problems in arguing that that did amount to express ouster.  The first is that that very argument was put to the Privy Council, the New Zealand Court of Appeal and the Canadian Supreme Court on relatively identical language and was not accepted in any of those three cases. 

The final point I would made about express ouster is that one would expect that if there was going to be an express ouster, it would have been found in subsection (3) which is at page 161.  It is there noted that:

A person may be found guilty of conspiracy to commit an offence even if –

If your Honours go to paragraph (b), paragraph (d) and paragraph (e) are matters relating to parties.  So, just pausing there, we submit there is no doubt that there is an express ouster and we respectfully submit that that is either not arguable – that it is not arguable to suggest the contrary or barely….. 

So pausing there, your Honours, if those five propositions are correct, it will follow that the Court of Criminal Appeal’s reasoning is directly inconsistent with the reasoning of this Court…..LK.  It would appear – even though they have conceded it for the purposes of this application – that probably the only way around that argument would be for the Crown to submit that as at 1995, contrary to all those authorities, it was established at common law that spouses alone could be conspirators…..

EDELMAN J:   Or alternatively, Mr Reynolds – sorry to interrupt, Mr Reynolds.  I think we have a time lag.  But the alternative possibility is that this Court in R v LK when it referred to “subject to express provision” also contemplated the possibility of implied provision to the contrary.

MR REYNOLDS:   Is your Honour suggesting that the word – talking about the word “express” in LK means imply?

EDELMAN J:   No, just that the issue of whether something could be altered by implication was not in issue in R v LK and it was not necessary to decide that point.  Plainly, any such expression by implication can amend the common law.

MR REYNOLDS:   Well, I would say a couple of things.  The first is that would involve a challenge to LK.  This reasoning is pivotal to LK and there would have to be a challenge to that aspect of it because that reasoning tracks through all the way from paragraphs 131 to 135 to the critical finding in paragraph 141. 

The other thing we would say is that an argument about an implicit ouster would be dependent on finding that the rationale of a rule related to there being only one – that husbands and wives were only person and we submit that there are any number of policy reasons which would…..the established common law rule which is set out in our submissions at page 190 from about line 15 through to line 35. 

We submit that LK is very clear on this point.  It does require express statutory modification and that is not to be found anywhere and in particular not in the opening words of section 11.5(1) and there was no holding in those other cases, I might add, that have either express or implied ouster by reference to those words.

EDELMAN J:   Mr Reynolds, in any of the authorities that you have referred to, is there a rationale, or one of the rationales you have identified said to be the basis of the husband and wife exception identified as dependent upon anything other than the unity principle?

MR REYNOLDS:   Yes.

EDELMAN J:   In other words, are any of the rationales you have identified drawn from the particular authorities?

MR REYNOLDS:   Yes.  Your Honours will find they are collected on page 190, and this is an aggregation of statements that have…..and in academic writings and by Law Reform Commissions, and which has led to statutory enactments adopting the rule as we would like it.  So, for example, at page 190 at line 15 they talk about:

“impairing the quality of marital relationships”.

Then, and this is at line 18, that if such agreements could constitute conspiracies, that:

might offer excessive scope for improper pressure on a husband or a wife”.

Then at line 20:

Making a husband and wife liable would represent a factor tending to undermine the stability of the marriage; (b) A change in the law might offer excessive scope for improper pressure to be applied to spouses in particular cases; (c) Public trials on charges of conspiracy in respect of communications between spouses only might be likely to have a significant effect in discouraging marital confidences. (d) Faced with an apparent conflict between their duty to each other and their duty to society the making of an agreement between spouses might be much less reprehensible than one between –

other persons, and:

(e) The agreement of one spouse to the project of the other is less likely to bring in additional resources or make the agreement a formidable one than the agreement of a stranger would be.

So just getting back to what your Honour Justice Edelman put to me, if your Honours were to grant leave, the common law position would be significant, and I would envisage arguing that your Honours would embrace the established common law position by reference to these policy factors, not by reference to any notion of unity, and although I would not formally disclaim that at this point, I would doubt that I would rely on the argument about unity if leave were granted.  The other point I would mention is that the ‑ ‑ ‑ 

EDELMAN J:   Sorry, Mr Reynolds, just to clarify, these policy factors that you refer to that, described in the Law Reform Commission report, do they appear in any of the common law authorities over the lengthy period of time in which the common law immunity existed?

MR REYNOLDS:   Certainly some of them do, your Honour.  I do not know - I cannot say that I have gone through and ticked off all of these, but things like impairing the quality of marital relationships, discouraging marital confidence, also the notion of improper pressure, which is repeated there twice, they are definitely things that are mentioned in the cases as rationales for the rule, which are different from this notion of unity.

The other thing is this, your Honours, that the test in LK is by reference to the law which was established - this is paragraph 107 - as at 1995.  We say that whether or not your Honours would wish to, as it were, re‑embrace the proposition, the established common law as at 1995 was clear, even if your Honours…..hold that your Honours did not think that it should be good or as at 2020 because the distinction is there drawn, as your Honours can see, between what was established as at 1995 and we would say what the current law is. 

So, the difficulty, the principal difficulty, we submit, for the Crown is that they cannot undermine any of those five propositions…..the common law position which they - this is the fourth point - have conceded for the purposes of this application and which I think is supported by every Commonwealth…..that I am aware.  That matter which…..that is that issue, we would respectfully submit, a quintessential…..on a special leave point that is for your Honours to re‑examine - not re‑examine, to examine the common law position on that point and perhaps re‑examine the statements in LK, if the Crown wishes to challenge them. 

If your Honours go to the factors in section 35A of the Judiciary Act, we submit first that the decision in the Court of Criminal Appeal is contrary to the reasoning in LK.  It is also contrary to the reasoning in the South Australian decision of R v Won and there is ever a need for this Court, we submit, to resolve that difference of opinion that exists. 

Secondly, we submitted, in accordance with those five points, that the Court of Criminal Appeal’s decision is clearly wrong, and we submit that it is therefore in the interests of the administration of justice that leave by granted.  The third point is that the question of whether spouses can be conspirators under the Criminal Code (Cth) is, we submit, clearly a question of law which is of public importance and, fourthly, the closely related question of whether at common law spouses can be conspirators is also a question of law which is of the highest public importance, both relevant to the construction of the Code and particularly relevant to South Australia which is still a straight common law jurisdiction.

Your Honours, this is an appropriate vehicle to determine all of those issues and the case presents a very clean, crisp vehicle for the determination of those issues which is not dependent on the resolution of any factual

questions.  We submit unless the Crown can undermine those five propositions that this, I respectfully submit, is a case that would warrant special leave.  Unless there is anything your Honours would wish to ask me, those are my submissions. 

NETTLE J:   Thank you, Mr Reynolds.  Mr McGuire?

MR McGUIRE:   Yes, thank you, your Honours.  The respondent submits that the Court would not grant special leave in this case for two reasons.  Firstly, the first and second special leave questions, in our submission, simply do not arise and, secondly, the applicant has no prospects of success in relation to the third special leave question. 

In our submission, at its heart, this application raises one single question of law, that is, whether married spouses are immune for an offence of conspiracy under section 11.5.  We submit that that question can readily be resolved by reference to orthodox principles of statutory construction, a reference to the text and the context of section 11.5 and the relevant extrinsic materials. 

Your Honours, I am not going to take the Court’s time by repeating what we say are the relevant general principles.  They are found in our written submissions at application book 199 where we refer to Federal Commissioner of Taxation v Consolidated Media which, in a nutshell, states that the task of statutory construction both begins and ends with the consideration of the statutory text and its context.

NETTLE J:   Mr McGuire, what do you say to Mr Reynolds’ proposition that if one were to interpret legislation in the way in which you suggest it would run directly contra to what was said in R v LK?

EDELMAN J:   In particular, paragraphs 107 and 131?

MR McGUIRE:   Yes, your Honours, we accept that proposition for this reason.  In our submission, LK does not deal with and is not authority for the proposition as to who can and who, more importantly, cannot be parties to a conspiracy.  LK is about the nature of the conduct and the quality of the conduct that is necessary for it to amount to a conspiracy.  LK is not about the identification or, relevantly, the identification of those who cannot be pro‑conspirators. 

Despite the wording in paragraph 131 that there is a reference to the parties to the conspiracy, it was not in issue in LK to determine who can and who cannot be a conspirator.  It is a very different case than the current question that is before the Court and it is not an authority for the proposition that parties to a conspiracy in the Code has the same meaning as it once had under the common law.

EDELMAN J:   So your submission, as I understand it, would be that section 11.5 is based upon the common law definition of “conspiracy” but shorn of any common law rules as to who are parties to a conspiracy?

MR McGUIRE:   Yes, your Honour, certainly the second part of that we adopt that the offence provision does not adopt the common law about who may or may not be parties and that LK does not change the analysis.

EDELMAN J:   It would be odd, would it not, for it to be based upon common law notions of conspiracy but without the immunities that might on one view be integrally associated with the conspiracy?

MR McGUIRE:   That is why I answered your Honour’s question in a guarded way.  We accept the second part of your Honour’s proposition, but not the first.  The reference in LK does not extend what we otherwise can read in section 11.5 as to what is necessary and what are the elements for a conspiracy to some other meaning under the common law.  It simply does not do that.

EDELMAN J:   What does paragraph 107 mean?

MR McGUIRE:   Would your Honour bear with me just one moment.  Your Honour, it means that the words “conspire” and “conspiracy” can be understood as fixed by the common law.  Those words are relevantly not defined or explained in the Code other than what we can expressly see in the subsection to 11.5 as to what the relevant elements are in the Commonwealth statute books for a conspiracy, that is, the particular elements about the nature of the agreement, how that fits in with overt acts, et cetera. 

So it is to be understood – this is paragraph 107 – in its terms that the concept as to what conduct amounts to a conspiracy is fixed and remains fixed by the common law.  With respect, that does not extend those concepts in any way that would change the way in which the elements of section 11.5 are to be understood.

Your Honour, the other way of testing the propositions propounded by our learned friends is this, that beyond the standard principles for statutory interpretation, we maintain that because we are here dealing with the provisions of a Code, that the word, or at least the phrase “another person” has to be properly understood by reference to authorities dealing with the construction of the Code, including Brennan v The King, an authority that is referred to in our submissions, and the more recent authority decided I think in late May by this Court, Pickett v Western Australia. 

Because that case was decided after our written submissions were prepared, it is not there referred to.  We have, though, asked for the Registrar to make copies of that authority available to your Honours and we have advised our opponents accordingly.  The relevant passage of that decision is at paragraphs 22 through to 24 of the High Court decision in Pickett.  I will not read it out, but your Honours will see that it firstly adopts and refers to the principle from Brennan v The King, which includes the core of this submission, that is that it is not the proper course, again, in constructing the words of the Code:

by finding how the law stood before the Code –

was enacted and then to see if the Code bears an interpretation that would leave the law unfettered, or certainly unaltered.  That passage is recently adopted in Pickett and applied.  There are, of course, two exceptions to that principle and they are that it is possible to have regards to the common law in two specific cases, we submit, neither of which apply here.  The first is where ‑ ‑ ‑ 

EDELMAN J:   The applicant’s submission, as I understand it, is not really one that is concerned with or engaging with the meaning of the word “persons”, but it is a submission that there is an immunity that is part and parcel with the notion of conspiracy, and that it is caught up with the meaning and the understanding of conspiracy.  So irrespective of what is meant by “persons” or “other persons”, there is this present immunity from the common law that was imported into the Code, because there was no express provision otherwise.

MR McGUIRE:   Our submission in response to that, with respect, your Honour, is that Pickett and Brennan are authorities for the proposition that, in effect, the way in which the applicant puts its case, to use the vernacular, really is putting the cart before the horse.  One does not look at the common law and then construe the Code, one looks at the plain, ordinary meaning of the words in the Code, by reference to extrinsic material, and, unless the case falls within one of these two exceptions, one does not have recourse to the common law to help determine what is meant by the term “another person” in the Code. 

Now, the reason I submit that those exceptions do not apply, the term “another person” does not have a well‑established technical meaning, and the language in the section, we submit, is unambiguous.  For those reasons, failing ambiguity and absent technical terminology, with great respect, we say the applicant’s approach to the case and to LK reveals a fallacy in that

submission – that is, by looking at the common law and using the common law retrospectively to understand what applies to section 11.5 they have gone outside the orthodox rules in Brennan and in Pickett which require the Code to be read on its terms by reference to text, context and extrinsic material.

I will not take the Court to it, but the extrinsic material that we particularly rely on of course is the model committee’s note in relation to there being – I will turn up the precise words – no protection provided for spouses.  That is a term which is picked up in the judgment below at application book pages 179 and 180.  In our submission, that clearly reveals the drafter’s express intention that no protection was to be provided and whatever common law immunity once may have existed was not incorporated into the conspiracy provisions of the Code.

Your Honours, turning to a question which your Honour Justice Edelman asked of our learned friend about the rationale for this, we say archaic common law concept, our response to your Honour’s question is there is no authority which refers to any rationale, apart from this concept of unity of legal persona.  That is relevant for a number of reasons.

Despite law reform reports and various commissions postulating that there may well be other ways of formulating a rationale, we are not aware of any authority that actually refers to and adopts any other rationale.  If it is not the concept of unity, one asks rhetorically what is it, and if it is the concept of unity, can I remind your Honours that in the court below, learned senior counsel then appearing for the applicant disavowed any reliance on the concept of unity and he did so and it is recorded in the judgment of the Court of Criminal Appeal at paragraphs 60 and 66.  Your Honours will find those passages in application book pages 173 and 176.

We submit that absent reliance on this archaic concept of unity of legal persona, the terms in the Code are clearly unambiguous, that the term “another person” unambiguously includes reference to either a wife or a husband or a spouse, no matter what the gender combination is of the marital pairing, and that for those reasons the five propositions that our learned friend started with simply do not apply and your Honours would not be minded to grant special leave.  Those are our submissions.

NETTLE J:   Thank you, Mr McGuire.  Mr Reynolds, any reply?

MR REYNOLDS:   Your Honours, just to deal with the point my learned friend was making about the rationale not being referred to in the cases.  That paragraph I took your Honours to at application book page 190, line 28, subparagraphs (a) to (e), was quoted verbatim in the English decision of Midland Bank v Green at pages 535 to 536 in argument.  There are references to that report in the judgment at page 542 and my recollection is that these rationales are matters which are discussed in the various cases - we just do not have them with us today. 

The other point I would make is simply to take your Honours back to paragraph 131 of LK which I respectfully suggest my learned friend has not really fronted up to, that is, fronted up to the difficulties for him in that paragraph.  In the second half it says:

It is by the adoption of the word “conspires”, with its established legal meaning, that the drafters of the Code chose to deal with questions that are not otherwise addressed in s 11.5.  These may be taken to include the parties to the conspiracy and the sufficiency of their dealings to constitute the agreement.  Section 11.5(1) is the specification of a physical element of the offence, namely, conspiring with another person to commit a non‑trivial offence.  Central to the concept of conspiring is the agreement of the conspirators.

Now, this is not, according to LK, the usual situation with a Code where the…..starts not with the common law but with the words of the Code and generally does not have to resort to the common law.  By reason of the holding of this Court in LK, the common law as to what amounts to an agreement and as to who are conspirators is imported by the use of the words “conspires” and “conspiracy” in section 11.5(1).  That is the central difficulty for the Crown on this application and I respectfully submit it is a difficulty that they have not overcome.  If the Court pleases, those are my submissions.

EDELMAN J:   Mr Reynolds, just before you finish, can I just understand, is your submission one that a husband and wife are incapable of being parties to a conspiracy or that if a husband and wife could be parties to a conspiracy, that there is an immunity from liability for either or both of them?

MR REYNOLDS:   Your Honour, it would be a matter of, in the end, characterisation as to how one puts it.  The one caveat I would put on what your Honour puts to me is that it is not that husbands and wives cannot be conspirators, it is that husbands alone can be conspirators.  But I would submit that the best way of putting it would be the way Lord Oliver put it in Midland Bank when he was Mr Justice Oliver.  He said this – your Honours do not have this, but it is only one sentence at page 510C:

There can, I think, now be no doubt that, at common law, no indictment for the crime of conspiracy would lie in any case where the only parties to the conspiracy alleged were husband and wife.

That is the proposition that I would, with respect, adopt.  As your Honour, with respect, appreciates, there are various ways that one could get to that result jurisprudentially.  One would be to focus on the principles of common law pleading.  One would be to say that, as a matter of policy, this is simply a rule - that is sometimes the way it is put.  That is the way it is put in the United States, that there is a rule that you cannot have husband and wife as conspirators.  Another way of putting it would be to characterise it as an immunity.

They are the possible jurisprudential rationales that come to mind, but the point that I would underline for present purposes is that your Honour is pointing to an important jurisprudential difficulty about all this, and a difficulty which, I submit, is…..looked at by this - the highest Court in this country, just as it has been looked at by, I believe, almost all of the other ultimate appellate courts in the Commonwealth jurisdictions who are all as one on this point.

In the ultimate courts of appeal it never reached the Lords because, although the Court of Appeal, as I have said, said it was good law, the legislature adopted the immunity by legislation in the UK.  So, your Honour, the point your Honour raises is not a matter that I can answer today, other than by pointing to what Lord Oliver said, but there are various ways that one can justify that proposition but that only underlines the importance, I submit, of your Honours having a careful look at this very important common law principle.  If the Court pleases, those are my submissions.

NETTLE J:   Mr Reynolds, before we retire, there is one question which, I apologise, I should have put to you before.  Could I do so now?  At page 169 of the application book, paragraphs 50 and 51 of the judgment of the Court of Criminal Appeal, is that correct or incorrect, which is to say, even if the rule against -  that married persons cannot conspire applies, nonetheless the charge covered more than the period for which the two accused were married and therefore would still have been made out.

MR REYNOLDS:   As your Honour probably appreciates, this is not a point the Crown has taken against us.  Would your Honour bear with me while I read the paragraph?

NETTLE J:   Thank you. 

MR REYNOLDS:   My response to your Honour’s question is there is nothing in the opening seven lines of paragraph 51 which would support the proposition that even if the argument I have put to your Honours here today

were to succeed that it would nonetheless mean that my client fails on the appeal because of what is contained in that paragraph.

There is, to put it another way, in that paragraph a suggestion that even if husbands and wives cannot be parties to a conspiracy under the Code, that the alternative basis of justifying the Court of Criminal Appeal’s decision - if that paragraph is capable of that interpretation, I am afraid I am not understanding, with respect, what the difficulty is.

NETTLE J:   Thank you.  Do you want to say anything like that, Mr McGuire, or are you prepared to leave it where stands?

MR McGUIRE:   Can I just say something very briefly about that?  Your Honour’s drawing our learned friend’s attention to those paragraphs is apposite for this reason.  The evidence about the dealings between the co‑accused preceded by some days their Islamic marriage ceremony and although there has, both below and in this Court, been a focus on the events after the marriage, we accept that the Court of Criminal Appeal below was right in holding that in any event a finding of guilt of both husband and wife was still open on the facts of the case in relation to their conduct before they were married.

NETTLE J:   I suppose Mr Reynolds is right that it would not necessarily follow that the jury would have convicted.  It is just that it might have been open for them to do so.

MR McGUIRE:   Yes, quite.

NETTLE J:   The Court will adjourn briefly to consider this matter.

AT 3.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.09 PM:

NETTLE J:   In this matter there will be a grant of special leave.  How long do you think it will take to argue, Mr Reynolds?

MR REYNOLDS:   A day, your Honour.  It may be shorter than that but I do not think it would be safe to estimate less than that.

NETTLE J:   Thank you.  Mr McGuire, do you agree with that estimate?

MR McGUIRE:   We do agree with that, your Honours, yes.

NETTLE J:   Thank you, gentlemen.  The parties’ instructing solicitors will need to consult with the Registry as to the interlocutory steps in advance of the hearing.  The Court will now adjourn until 10.00 am tomorrow.

AT 3.09 PM THE MATTER WAS CONCLUDED