R v Byast

[1997] QCA 276

IN THE COURT OF APPEAL

[1997] QCA 276

SUPREME COURT OF QUEENSLAND

C.A. No. 273 of 1997

Brisbane

[R v Byast]

T H E Q U E E N

v

MARY HELEN BYAST

(Applicant)

Davies JA Pincus JA de Jersey J

Judgment delivered 5 September 1997

Judgment of the Court

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL AGAINST

CONVICTION AND SENTENCE REFUSED.

CATCHWORDS:	Conspiracy to import cannabis - whether co-accused properly convicted together - “husband and wife” exception - referable only to duly solemnized marriages - overt act - sentence not manifestly excessive.
Counsel:	The applicant appeared on her own behalf Mr G.C. Davey for the respondent
Solicitors:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	25 August 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 5 September 1997

The applicant seeks an extension of time within which to appeal against conviction and sentence. She was convicted in the District Court at Cairns on 4 June 1997, after a trial, of the Commonwealth offence of conspiracy to import not less than the trafficable quantity of cannabis, contrary to the Customs Act. She was sentenced to two years imprisonment, on the basis that she be released after nine months upon entering into a recognisance to be of good behaviour and keep the peace for the balance of one year three months.

She filed her application for leave to appeal on 3 July 1997. She had apparently signed it on 24 June, but there was delay in its despatch to the court. She offers some explanation for that delay. Whatever be the merit of that explanation, we prefer to pass at once to a consideration of the grounds upon which she would seek to rely for her appeal.

The charge arose from telephone conversations, intercepted by the Australian Federal Police, between the applicant, then at Daintree, and David Nicholas Byast while he was in Papua New Guinea. Their conversations supported a conclusion that they had agreed to import the cannabis into Australia. Those conversations occurred between 22 March and 17 April 1996. In fact on 16 April 1996, on re-entering Australia, Mr Byast was found in possession of 300 grams of cannabis, described in a subsequent telephone conversation between the two accused persons as “token”.

The applicant would first seek to complain that she could not have been found guilty of conspiracy, together with Mr Byast, because he was her husband. We return to the issue whether the applicant correctly described her co-offender as her husband for purposes of the rule to which we now turn.

It is true that a husband and wife cannot at common law be found guilty of conspiracy together, because they are considered as the one person, possessed of the one will. See Mawji v R [1957] AC 126, where the Privy Council affirmed the principle stated in Archbold’s Criminal Pleading, Evidence and Practice, 33rd ed., p.22: “A husband and wife ... are esteemed but one person in law, and are presumed to have but one will.” Lord Somervell, speaking for their Lordships, described the “rule” - that is, that “the accused being husband and wife could not be guilty of conspiracy” (p.133) - as “an example of the fiction that husband and wife are regarded for certain purposes ... as in law one person” (p.135). His Lordship pointed out that some of the consequences of that fiction have been removed by statute, although not this one. See also Kowbel v R (1954) 4 DLR 337, where the Supreme Court of Canada took the same view.

For the purposes of that exceptional position, husband and wife should be taken to mean husband and wife constituted as such by a lawfully solemnized union. See s.41 of the Marriage Act 1961, which requires that a marriage be solemnized by or in the presence of an authorized celebrant. That approach would be consistent with the age of those critical authorities. There is no authority we have found, or to which we have been referred, suggesting that the exception would extend to so called “common law” marriages.

One may gain some assistance by looking to the common law context of the admissibility of a woman’s evidence against a man with whom she lives: the assumption there has been that the evidence is admissible unless they were husband and wife in the sense of having gone through the form of marriage prescribed by law. See R v Fuzil Deen (1895) 6 QLJR 302, R v Algar [1954] 1 QB 279 and D.S. Yacoob (1981) 72 Cr App R 313. There is no reason to believe that so far as this exceptional “fiction” has been applied in relation to conspiracy, the law has taken a more expansive view of what species of married relationship might be sufficient.

The applicant and Mr Byast were not lawfully married, so cannot be regarded as husband and wife for the purposes of the principle. Although the applicant asserted to the trial judge that she and her co-accused were “in all due respects, married”, the only evidence put before the jury was to the contrary. A police officer, B.R. Davis, gave evidence of asking the applicant: “You’re legally married. Is that correct?” to which she responded, “No”. Following her assertion to the learned trial judge, and her nomination of a date upon which she claimed a civil marriage ceremony had taken place, the Crown tendered a certificate to the effect that the Registry of Births, Marriages and Deaths contained no record of any such marriage involving the applicant over a period including her nominated date. Neither the applicant nor her co-accused gave evidence.

In Yacombe v Yacombe (1961) 105 CLR 355, 360, the High Court said that “proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married ... which is rebuttable only by clear and cogent evidence ...”. To the extent that there may, through the conduct of this case, have been a suggestion that the applicant and her co- accused maintained a de facto husband and wife relationship, the evidence put before the jury by the Crown excluded their being husband and wife as the result of a duly solemnized lawful marriage. There is therefore no substance to the first ground of appeal on which the applicant would seek to rely.

Her second challenge to the conviction concerned the admission into evidence against her of Mr Byast’s having introduced the 300 grams of cannabis on 16 April, an offence to which he had pleaded guilty. That evidence was admitted against her as involving an overt act occurring in the course of the wider conspiracy: it occurred within the time frame of the incriminating telephone conversations, it related to the same drug, and it involved an instance of importation, the subject of subsequent reference between them. In those circumstances, it may reasonably have been regarded by a properly directed jury as done in furtherance of the common design essential to the conspiracy, established by other evidence, and was on that basis admissible against the applicant.

Neither of the grounds of challenge to the conviction has substance.
As to sentence, the applicant was 47 years old at the time with no prior criminal history.

The learned judge rightly referred however to the prevalence of the offence and the need for deterrence, and its seriousness because of a commercial aspect - drawn from reference to substantial quantities in the taped telephone conversations. It could not seriously be contended that an effective sentence of two years suspended after nine months was in those circumstances manifestly excessive for a crime of this character.

The application for extension of time within which to appeal against conviction and sentence is therefore refused.