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

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…

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.

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Details

Case: [2020] HCATrans 163
Decision Date

CaseChat Overview and Summary

In *Namoa v The Queen*, the High Court of Australia considered an appeal from the Court of Appeal of the Supreme Court of Victoria concerning the appellant's conviction for murder. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge erred in admitting evidence obtained from the appellant's mobile phone, specifically text messages and call logs, which were seized pursuant to a search warrant. A further issue was whether the admission of this evidence, in conjunction with other aspects of the trial, rendered the proceedings unfair and thus necessitated a retrial.

The Court analysed the scope of the search warrant and the principles governing the admissibility of evidence obtained under such warrants, particularly where the evidence might be considered to be of a "fishing" nature. Nettle and Edelman JJ applied established principles of evidence law and criminal procedure, considering the potential for prejudice to the appellant against the probative value of the evidence. They examined whether the evidence was relevant and, if so, whether its admission would create an unfair trial.

Ultimately, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders