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Namoa v The Queen

Namoa v The Queen

Case [2020] NSWCCA 62 6 April 2020

Appeal

Criminal Liability

Jurisdiction

Admissibility of Evidence

Immunity

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Namoa v R [2020] NSWCCA 62
Hearing dates: 21 February 2020
Date of orders: 06 April 2020
Decision date: 06 April 2020
Before: Payne JA at [1];
Johnson J at [88];
Davies J at [89].
Decision:
(1) Leave to appeal granted on ground 1;
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – fresh evidence – where neither applicant nor co-conspirator gave evidence at trial – where co-conspirator gave evidence at sentence that he only claimed to be preparing to carry out a terrorist attack to manipulate applicant into marrying him – whether evidence given by co-conspirator at sentence was fresh evidence – whether fresh evidence gave rise to miscarriage of justice
EVIDENCE – privileges – immunity – immunity in crime for conspiracy between husband and wife – where applicant and co-conspirator were married during timeframe of conspiracy – whether at the time immediately prior to the introduction of the Criminal Code Act 1995 (Cth) the common law of Australia recognised an immunity from prosecution for conspiracy for a husband and wife – whether the Criminal Code, s 11.5, inconsistent with any common law immunity
Legislation Cited: Crimes Act 1900 (NSW), s 580D
Criminal Appeal Act 1912 (NSW), s 6
Criminal Law Act 1977 (UK)
Family Law Act 1975 (Cth)
Schedule to the Criminal Code Act 1995 (Cth), ss 11.5, 101.1, 101.2, 101.3, 101.6
Cases Cited: Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Kowbel v The Queen [1954] SCR 498
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Mawji v The Queen [1957] AC 126
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496
Midland Bank Trust Co Ltd v Green (No 3) [1982] Ch 529
PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Bayda; R v Namoa (No 3) [2018] NSWSC 1381; (2018) 274 A Crim R 1
R v Bayda; R v Namoa (No 8) [2019] NSWSC 24
R v Byast [1999] 2 Qd R 384; [1997] QCA 276
R v L (1991) 174 CLR 379; [1991] HCA 48
R v LK (2010) 241 CLR 177; [2010] HCA 17
R v McKechie [1926] NZLR 1
R v R [1992] 1 AC 599
R v Won & Singh [2012] SADC 177
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Texts Cited: Criminal Law Officers Committee of the Standing Committee of the Attorneys-General, Final Report Chapter 2 General Principles of Criminal Responsibility (December 1992)
Glanville Williams, “The Legal Unity of Husband and Wife” (1947) 10 Modern Law Review 16
Hawkins, Pleas of the Crown 1716-1721 Vol 1 (1973, Professional Books Ltd)
Leeming, The Statutory Foundations of Negligence (2019, The Federation…

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 [2020] NSWCCA 62
Case: [2020] NSWCCA 62
Decision Date: 06 April 2020

CaseChat Overview and Summary

In the case of Namoa v The Queen, the appellant sought to appeal against a conviction related to criminal activities. The High Court of Australia was tasked with determining whether the appellant's appeal, based on fresh evidence, should be allowed and if the evidence provided at the sentencing phase by a co-conspirator could be considered fresh evidence. Additionally, the court had to assess whether this fresh evidence led to a miscarriage of justice, as neither the appellant nor the co-conspirator had testified at the trial.

The legal issues before the court involved the interpretation of the concept of fresh evidence and its relevance to the appeal against conviction. The court needed to consider whether the evidence presented by the co-conspirator at the sentencing phase, which claimed that he only purported to be preparing a terrorist attack to manipulate the appellant into marriage, could be classified as fresh evidence. Furthermore, the court examined whether this fresh evidence resulted in a miscarriage of justice. Another significant issue was whether, under the common law of Australia prior to the introduction of the Criminal Code Act 1995, a husband and wife could claim immunity from prosecution for conspiracy. The court also needed to determine if section 11.5 of the Criminal Code was inconsistent with any common law immunity that might have existed.

The court held that the evidence given by the co-conspirator at the sentencing phase was not fresh evidence as it did not materially affect the trial's outcome. The court found that the co-conspirator's testimony did not give rise to a miscarriage of justice because it did not significantly alter the understanding of the events or the appellant's culpability. Regarding the immunity in crime for conspiracy between a husband and wife, the court concluded that at the time immediately prior to the introduction of the Criminal Code Act 1995, the common law of Australia did not recognise such immunity. The court also found that section 11.5 of the Criminal Code was not inconsistent with any common law immunity that might have existed. Consequently, the appeal against conviction was dismissed.

The final orders of the court were that the appeal against conviction be dismissed, and no orders were made regarding the immunity issue as it was found not to be relevant to the appeal.

Orders