R v Bayda; R v Namoa (No 3) - [2018] NSWSC 1381

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Bayda; R v Namoa (No 3) [2018] NSWSC 1381
Hearing dates: 28-31 August 2018
Date of orders: 31 August 2018
Decision date: 10 September 2018
Jurisdiction: Common Law
Before: Fagan J
Decision:
The application by the accused for a permanent stay of proceedings on the charge of conspiracy is dismissed.

Catchwords:
CRIMINAL LAW – general matters – ancillary liability – conspiracy – two accused charged with conspiracy to do act in preparation for terrorist act contrary to Criminal Code (Cth), s 101.6 – accused married in Islamic marriage ceremony – whether spouses immune from charges of conspiracy – no such rule in common law for Australia – spousal immunity from conspiracy not incorporated into Criminal Code
FAMILY LAW – marriage – validity – marriage ceremony performed by authorised celebrant – celebrant not minister of religion – Marriage Act 1961 (Cth), Pt IV Div 1 – where marriage ostensibly solemnised in Islamic nikah marriage ceremony
Legislation Cited: Acts Interpretation Act 1901 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Criminal Code Act 1924 (Tas)
Criminal Code (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Marriage Act 1961 (Cth)
Cases Cited: Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 18
Attorney-General (NT) v Kearney (1985) 158 CLR 500
B v R [2008] NSWCCA 85
Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29
Byast v The Queen (1997) 96 A Crim R 61
Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427; [1972] HCA 28
Director of Public Prosecutions v Merriman [1973] AC 584
Johnson v Miller (1937) 59 CLR 467
Kowbel v The Queen [1954] 4 DLR 337
Mark Little (a pseudonym) v R (2015) 44 VR 816; [2015] VSCA 62
Mawji v The Queen [1957] AC 126
Midland Bank Trust Co Ltd v Green (No 3) [1979] 1 Ch 496
Midland Bank Trust Co Ltd v Green (No 3) [1982] 1 Ch 529
PGA v The Queen [2012] HCA 21
R v Blackett [2018] NSWCCA 114 (publication restricted)
R v Cox & Railton (1884) 14 QBD 153
R v LK [2010] HCA 17
R v McKechie [1926] NZLR 1
R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
R v Smith [1995] 1 VR 10
R v Won & Singh [2012] SADC 117
Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Texts Cited: William Hawkins, Pleas of the Crown (1716-21)
Category: Procedural and other rulings
Parties: Regina (Crown)
Sameh Bayda (accused)
Alo-Bridget Namoa (accused)
Representation:
Counsel:
Mr N T Robinson QC/Ms B E M Anniwell (Crown)
Ms A Moen (accused Bayda)
Mr C O’Donnell SC (accused Namoa)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Fay Rose Legal (accused Bayda)
Tully & Chiper Lawyers (accused Namoa)

File Number(s): 2016/25204; 2016/58286

Judgment

On 31 August 2018 Sameh Bayda and…

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: [2018] NSWSC 1381
Decision Date: 10 September 2018

CaseChat Overview and Summary

In the case of R v Bayda; R v Namoa (No 3), the respondents were charged with conspiracy to engage in an act in preparation for a terrorist act. The respondents were married in an Islamic marriage ceremony, and their defence was that, as spouses, they were immune from charges of conspiracy under the common law. The respondents sought to have the conspiracy charges dismissed on the basis that their marriage provided them with immunity from prosecution for any conspiracy between them. The High Court of Australia was asked to determine whether the common law doctrine of spousal immunity extended to charges of conspiracy under the Criminal Code.

The court examined whether spousal immunity, as it existed under the common law, applied to charges of conspiracy under the Criminal Code. The court considered whether the doctrine of spousal immunity was incorporated into the Criminal Code or whether the common law principle should be applied. The court noted that the common law doctrine of spousal immunity did not apply to charges of conspiracy under the Criminal Code, and that the doctrine had not been incorporated into the Criminal Code. The court also considered whether the validity of the marriage ceremony performed by an authorised celebrant, rather than a minister of religion, affected the application of the doctrine of spousal immunity.

The court held that the doctrine of spousal immunity did not apply to charges of conspiracy under the Criminal Code. The court noted that the doctrine had not been incorporated into the Criminal Code and that the common law principle did not apply to the facts of the case. The court also held that the validity of the marriage ceremony performed by an authorised celebrant did not affect the application of the doctrine of spousal immunity. The court rejected the respondents' defence that their marriage provided them with immunity from charges of conspiracy.

The court dismissed the appeal and upheld the conspiracy charges against the respondents. The court held that the doctrine of spousal immunity did not apply to charges of conspiracy under the Criminal Code and that the common law principle had not been incorporated into the Criminal Code. The court also held that the validity of the marriage ceremony performed by an authorised celebrant did not affect the application of the doctrine of spousal immunity. The court rejected the respondents' defence and upheld the conspiracy charges against them.

Orders