Namoa v R

Court of Criminal Appeal (NSW)|2020-02-21|Before: Payne JA, Johnson J, Davies J, Fagan J

lth Director of Public Prosecutions (Respondent) Representation: Counsel: C O'Donnell SC with P Hart (Applicant) S McNaughton SC with B Anniwell and A Brown (Respondent)

Solicitors: Tully & Chiper Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2016/58286 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 24 Date of Decision: 31 January 2019 Before: Fagan J File Number(s): 2016/25204; 2016/58286

HEADNOTE [This headnote is not to be read as part of the judgment] On 5 October 2018, the applicant was found guilty by a jury of one count of conspiring to do acts in preparation for a terrorist act or acts contrary to ss 11.5(1) and 101.6(1) of the Schedule to the Commonwealth Criminal Code Act 1995 (Cth) (the Code). The applicant was tried jointly with her co-conspirator, Mr Bayda, who was also found guilty. On 31 January 2019, the trial judge sentenced the applicant to a total term of imprisonment of 3 years and 9 months. The Crown case was that the applicant and Mr Bayda conspired with each other between about 8 December 2015 and about 25 January 2016 to do acts in preparation for a terrorist act. Neither Mr Bayda nor the applicant gave evidence during the trial. Both Mr Bayda and the applicant gave evidence on sentence. Mr Bayda gave evidence to the effect that, contrary to what he understood the applicant to believe, he did not plan to die carrying out an attack on non-Muslims on New Year's Eve 2015. Mr Bayda gave evidence that he sought to "manipulate" the applicant to believe that the attack he planned on New Year's Eve was more significant and dangerous than the attack he in fact planned to carry out. Prior to the trial, the trial judge rejected an application for a permanent stay made on the basis that the applicant and Mr Bayda had been married on 30 December 2015. The applicant submitted that a husband and wife could not be guilty of conspiracy under the Code. The trial judge found that the immunity which had existed at common law had not been part of the common law of Australia since well before the introduction of the Code in 1995. Further, the suggested common law immunity was inconsistent with s 11.5 of the Code. The applicant pressed two grounds on appeal. The first (ground 1) was that the evidence of Mr Bayda on the sentencing proceedings was fresh evidence now available to the applicant for the first time. It was submitted that the evidence demonstrated that a miscarriage of justice occurred at the trial. Secondly (ground 3), that the trial judge erred in ruling that in the common law of Australia there is no rule that a husband and wife cannot be guilty of conspiring with each other alone and that rule, if it did exist, was not incorporated in the codification of the law of criminal conspiracy in s 11.5 of the Code. As such, the trial judge erred in dismissing the applicant's application for a permanent stay of the conspiracy charge against her.

The Court per Payne JA (Johnson and Davies JJ agreeing) held, dismissing the appeal:

The first ground relied on (ground 1)

Most of the evidence of Mr Bayda given on sentence was not "fresh": at [37]. R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 applied.
Mr Bayda's evidence that his communications with the applicant were "deceptive" and that, contrary to what he understood the applicant to believe about his plans for the attack on non-Muslims on New Year's Eve, Mr Bayda did not plan to die as part of that attack, was fresh evidence: at [39]. Mr Bayda's evidence was credible to the extent that he sought to "manipulate" the applicant to believe that the attack he planned on New Year's Eve was more significant and dangerous than the attack he in fact planned to carry out: at [40].
Nevertheless, the applicant clearly agreed with Mr Bayda in the making of preparations for a terrorist act as defined: at [41], [46].
The applicant's case focused on the New Year's Eve incident to the exclusion of the other evidence which, of itself, was sufficient to support the jury's verdict: at [50].
Mr Bayda's evidence in the sentencing proceedings would not have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the applicant. There was no "significant possibility" that the jury, acting reasonably, would have acquitted the applicant based on the evidence of Mr Bayda given in the sentencing proceedings: at [49], [52].

The second ground relied on (ground 3) 7. If it were necessary to decide, the trial judge was correct to find that at the time immediately prior to the introduction of the Code in 1995 the common law of Australia did not recognise an immunity from prosecution for conspiracy for a husband and wife, even where the husband and wife were the only alleged conspirators: at [56]. PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21, applied. R v Byast [1999] 2 Qd R 384; [1997] QCA 276; R v Won & Singh [2012] SADC 177, not followed. Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496; Midland Bank Trust Co Ltd v Green (No 3) [1982] Ch 529, explained and distinguished. R v McKechie [1926] NZLR 1; Kowbel v The Queen [1954] SCR 498; Mawji v The Queen [1957] AC 126, not followed. 8. The language of s 11.5 of the Code is sufficiently clear to demonstrate a parliamentary intention that any immunity for conspiracy between a husband and wife was no longer to apply under the Code. On the clear language of the statute, a husband and wife are each a "person" and can be guilty of conspiring with each other: at [81], [85]. Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [307]-[314] per Gageler and Keane JJ, applied.

Judgment

PAYNE JA: On 5 October 2018, Alo-Bridget Namoa, the applicant, was found guilty by a jury of one count of conspiring to do acts in preparation for a terrorist act or acts contrary to ss 11.5(1) and 101.6(1) of the Schedule to the Criminal Code Act 1995 (Cth) ("the Code"). The offence occurred between 8 December 2015 and 25 January 2016. The applicant was tried jointly with her co-conspirator, Sameh Bayda, who was also found guilty.
On 31 January 2019, the trial judge sentenced the applicant to a total term of imprisonment of 3 years and 9 months. Her non-parole period expired on 22 January 2019 and the applicant is currently on parole. There was no appeal on sentence.
The Crown case was that the applicant and Mr Bayda conspired with each other between about 8 December 2015 and about 25 January 2016 to do acts in preparation for a terrorist act. Neither Mr Bayda nor the applicant gave evidence during the trial. The key evidence relied upon by the Crown comprised: 1. SMS messages that Mr Bayda and the applicant sent each other on their iPhones, seized by investigating police on 13 January 2016 when firearm and weapons prohibition orders were served on the applicant and Mr Bayda; 2. a "Tactical" brand knife and shahada flag, described by the trial judge as "a black flag bearing the messages in Arabic 'There is no God but Allah' and 'Muhammad is the prophet of God'", found in the applicant's handbag on 13 January 2016 during the search; and 3. digital files located by forensic analysis of the iPhones, a laptop and a hard drive seized during the search of Mr Bayda's premises on 25 January 2016. These included: 1. subscriptions to various Telegram channels which promoted extremist ideology; 2. thousands of cached images consistent with an interest in and support of violent extremism; 3. explosive device instructional documents; and 4. 54 pdf documents that, according to metadata, had been saved to the applicant's iPhone which were consistent with Islamic extremism.

The Crown case

The Crown case relied on SMS messages between the applicant and Mr Bayda sent on 30 and 31 December 2015 located on the applicant's iPhone and what was styled a "farewell note" written by the applicant on Mr Bayda's iPhone. The Crown case may be summarised as follows: 1. from the early afternoon of 30 December 2015 SMS messages were exchanged between the applicant and Mr Bayda concerning an act of violence against non-Muslims planned by Mr Bayda and encouraged by the applicant. She expected Mr Bayda would be killed in this attack; 2. the applicant urged Mr Bayda to proceed and expressed respect for his commitment to carry out an act which would ensure he was admitted to paradise; 3. Mr Bayda and the applicant took part in an Islamic marriage ceremony at about 8:00pm on 30 December 2015. The next morning they exchanged more messages to the same effect as the previous day, indicating that Mr Bayda's proposed act was imminent; 4. at 10:18am on 31 December 2015, the applicant was with Mr Bayda and entered on his phone a note of support. This was the "farewell note" written by the applicant on Mr Bayda's iPhone. The applicant was clearly aware that Mr Bayda planned to attack randomly selected non-Muslims and to act in company; 5. during the afternoon and evening of 31 December 2015, Mr Bayda's messages indicated hesitation. The applicant continued to encourage him to carry out an attack; and 6. at 10:26pm on 31 December 2015, a photograph was taken of Mr Bayda sitting in the driver's seat of his van dressed entirely in black including a head covering and a scarf over the lower part of his face. The photograph depicts Mr Bayda making the one fingered salute which had by that time been used extensively in propaganda for the Islamic State. The photograph was sent to the applicant's phone.
The Crown case was that on New Year's Eve 2015, Mr Bayda in company with some other young men was preparing for a violent attack against randomly selected non-Muslims. The Crown asserted that on 30 and 31 December the applicant knew of the proposed attack, agreed with Mr Bayda that he should carry it out and strongly encouraged him to do so.
The Crown also relied upon events said to have occurred on 9 January 2016, when the applicant and Mr Bayda spent the night together at the Novotel, Parramatta. On that day, illustrated instructions for stabbing a person with lethal effect, and for making a bomb, were saved to the applicant's and Mr Bayda's iPhones. The Crown asserted that this conduct constituted an additional overt act in furtherance of the alleged conspiracy.
The Crown further relied upon the finding of a "Tactical" brand knife and a shahada flag in the applicant's handbag on 13 January 2016. These items, the Crown said, were given to the applicant by Mr Bayda and held by the applicant pursuant to the conspiracy with Mr Bayda.
The Crown also relied upon Mr Bayda's purchase of a "Schrade" brand knife on 22 January 2016 as an overt act in furtherance of the conspiracy.
The Crown relied upon the applicant's and Mr Bayda's possession of a significant amount of extremist material on each of their iPhones and computer hard-drives as evidence of their ideological motivation and intent with respect to preparation for a terrorist act or acts.

The case for the applicant

The applicant's case at the trial was that she was an immature 18 year-old at the time of the relevant events. It was submitted that the key text messages relied upon by the Crown, particularly those from 30 and 31 December 2015, needed to be seen in context and that they were consistent with an immature and humorous relationship and did not evidence planning for a terrorist attack.
The applicant also relied upon the proposition that the Crown case was not capable of excluding as a rational hypothesis that Mr Bayda was embarked on some type of escapade with "the boys" on New Year's Eve to rob some non-Muslims, not to engage in violence to advance the cause of the Islamic State.
A significant body of evidence of events after 31 December 2015 showed, it was submitted, that the applicant and Mr Bayda were not terrorists but rather a loving and happy couple committed to their future.
The applicant's case was that the possession of Islamist documents or images on her iPhone did not mean she adopted the content and/or sentiment of that material. It was submitted that in scrolling through social media sites she could have automatically and inadvertently saved images to her iPhone.

The case for Mr Bayda

Mr Bayda's case at the trial was that he and the applicant shared a volatile relationship characterised by immaturity. He was also 18 years-old at the relevant time.
Some of the SMS messages from November 2015 showed that while Mr Bayda was interested in marrying the applicant, call records and WhatsApp communications showed frequent telephone contact between the applicant and another man "Riz" between 18 and 25 December 2015 consistent with that being a romantic relationship in which "Riz" had proposed marriage to the applicant.
It was argued on behalf of Mr Bayda that the WhatsApp communications from the applicant showed she was torn between "Riz" and Mr Bayda and this was the background to his actions on 30 and 31 December 2015 in trying to win back and maintain her affection.
Mr Bayda's case was that the Crown could not exclude as a reasonable hypothesis the possibility that all Mr Bayda intended to do on New Year's Eve was to rob some non-Muslims. It was submitted that this would not involve a conspiracy to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Code.

Mr Bayda's evidence at the sentence hearing

Mr Bayda did not give evidence at the trial but did give evidence on sentence over two days. To some extent the evidence went further than the applicant's case at the trial. In the course of that evidence Mr Bayda stated: 1. he had known the applicant since primary school and formed a relationship with her in April 2015, but they broke up in late November or early December and had limited phone contact during a period in December when they would block and unblock each other's numbers; 2. on Christmas Day 2015, when Mr Bayda saw the applicant she told him she was dating a Turkish guy named "Riz"; 3. on 27 December 2015, Mr Bayda messaged the applicant "because I knew at that point that I was about to lose her and she was going to marry this Turkish guy she was dating". He picked her up from her friend's house and told her that "If you don't marry me, I'm going to do an attack and die"; 4. Mr Bayda claimed that despite what he told the applicant, he "definitely wasn't going to do an attack and die. I was planning on doing a robbery New Year's Eve. I told her that just to try and convince her to marry me and not the Turkish guy"; 5. on 30 December 2015, he understood that the applicant believed he was going to "do an attack and die". He said that he continued to "manipulate" the applicant to try to convince her to marry him and to believe he was going to do an attack and die. He characterised his conduct as continuing to "string her along"; 6. Mr Bayda bought the applicant a shahada flag on 31 December 2015, because she wanted it. From SMS messages the applicant sent to him on 31 December 2015, where, for example, she referred to "Jannah" (paradise), him marching forth "ligh[t] (sic) or heavy" and the "goodbye note" she wrote on his phone, Mr Bayda understood the applicant still thought Mr Bayda was going to die in the attack he had planned for that night; 7. Mr Bayda described his intention on New Year's Eve as being: "I was just going out to, you know, go bash people and steal their money but I was scared the boys would think, you know, that I'm a chicken. So at that point I always wanted to tell her that I'm not going to go anymore because I got what I wanted, you know, I got her to marry me. And I just stayed hugging her and then I just left. ... I really wish I'd told her the truth. It's a disgusting act. I just manipulated her into really believing I was going to die. She really believed I was going to die and, you know, looking back, she was very emotional. It was just a bad thing to do, you know. I lied to her. I could've done it another way, yeah"; 1. later he retrieved the "Tactical" brand knife which belonged to his father and took it with him in his car "maybe just to show off with the boys". He met up with Ahmed Obeid and Jalal Suleyman. Mr Suleyman took the photo of him wearing the turban and face-covering, which he forwarded to the applicant; and 2. Mr Bayda then drove around with Mr Obeid and Mr Suleyman looking to further their plan. When they saw a young couple, they stopped. Mr Suleyman and Mr Obeid got out of the car. Mr Obeid was armed with the baseball bat. Mr Obeid told Mr Bayda to get out of the car too but Mr Bayda refused. Mr Obeid and Mr Suleyman returned to the car. On the way back, Mr Bayda could tell that Mr Obeid appeared angry with him. Mr Bayda suggested they "[b]uy petrol and burn a bush". They drove to the house of another man named Jalal, on the way buying petrol at a service station. After collecting the other man named Jalal they went to an area that was all bushes and dark streets. There, they unsuccessfully attempted to light a fire with crude Molotov cocktails. After dropping the others off Mr Bayda saw the applicant at her friend's house and "[s]he told me, '[w]hat did youse do?' I told her, '[i]t was stupid, we didn't do anything, we just burnt a bush.' At that point she looked at me like I was an idiot, you know, I was an idiot, she looked at me like I was stupid, '[y]ou burnt a bush, you were going to do an attack'."
In cross-examination by the applicant's counsel, Mr Bayda said: "Q. She rejected your proposal and was it from that point that you came up with this plan, if I could describe it that way, to pretend to her that you would engage in an act of terrorism if she didn't marry you? A. Yes. Q. Did you maintain that pretence to her until she married you? A. Yes, even after she married me. Q. I'm sorry? A. Even after she agreed to marry me. Q. Why did you maintain it after? A. Well, I was scared she would go back to the other guy. Q. For how long after did you maintain it? Through to 31 December? A. Till late that night on 31 December. Q. And then there was no need, was there, to continue with the pretence after that? A. No."
Mr Bayda was asked during cross-examination by the Crown about what he said was his actual intention on New Year's Eve in attacking a group of randomly selected non-Muslims and robbing them: "Q. You understood that you could meet deadly force from police, didn't you? A. Well, we were hoping to get away. We weren't hoping to get caught. Q. I didn't ask you that. I said, you understood you could meet deadly force from police on New Year's Eve if you were engaged in a terrorist act, didn't you? A. Yes. Q. And if you died from that deadly force, you would die a shahid, wouldn't you? A. Yes."
That Mr Bayda understood that a "shahid" was an Islamic martyr was underlined by the following question and answer: "Q. On New Year's Eve you believed if you met with deadly force from law enforcement, you would die a martyr and go to heaven? A. Yes."

Application for a permanent stay

Prior to the trial, the trial judge rejected an application for a permanent stay made on the basis that the applicant and Mr Bayda had been married on 30 December 2015: R v Bayda; R v Namoa (No 3) [2018] NSWSC 1381; (2018) 274 A Crim R 1. It was submitted that a husband and wife could not be guilty of conspiracy under the Code and that a permanent stay should be ordered.
His Honour accepted that the Crown "probably could not disprove" that a marriage took place between the applicant and Mr Bayda on 30 December 2015. However, the trial judge did not find it necessary to decide this factual issue as his Honour found that the immunity which had existed at common law had not been part of the common law of Australia since well before the introduction of the Code in 1995. Further, the suggested common law immunity was inconsistent with s 11.5 of the Code. The use of the words "with another person" in that section includes cases of a husband and wife conspiring with each other.
The trial judge also found it was appropriate to have regard to the Model Criminal Code Officers Committee Final Report. His Honour found that it was clear the Committee considered their drafting, which was substantially adopted in s 11.5, had the effect of omitting the immunity of a husband and wife to a conspiracy charge from the codification of Commonwealth criminal law.

Grounds of appeal

The applicant's grounds of appeal which were pressed were: 1. Ground 1: a miscarriage of justice was occasioned on account of evidence now available to the applicant; and 2. Ground 3: the trial judge erred: 1. in ruling that in the common law of Australia there is no rule that a husband and wife cannot be guilty of conspiring with each other alone and that rule, if it did exist, was not incorporated in the codification of the law of criminal conspiracy in s 11.5 of the Code; and 2. in dismissing the applicant's application for a permanent stay of the conspiracy charge against her.
The applicant did not seek leave to appeal against sentence. At the hearing, Mr O'Donnell SC abandoned reliance on ground 2. Ground 2 provided that the verdict of the jury in respect of the applicant was unreasonable and could not be supported having regard to the evidence. Mr O'Donnell made it clear that ground 1 was limited to an alleged miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) by reason of the "fresh" evidence of Mr Bayda given in the sentencing proceedings.

Applicant's submissions

The applicant submitted that the evidence of Mr Bayda on the sentence proceedings was "fresh" evidence, now available to the applicant for the first time. It was submitted that the evidence demonstrated that a miscarriage of justice occurred at the trial.
The case in support of ground 1 was put by counsel for the applicant as resting on four propositions: 1. that the Crown placed such great emphasis on the events leading up to New Year's Eve that the case against the applicant must fail if the evidence about the events leading up to and including New Year's Eve was rejected; 2. that Mr Bayda's evidence at the sentencing hearing demonstrates that he was leading the applicant to believe he would perform a terrorist act on New Year's Eve in order to get the applicant to marry him; 3. that Mr Bayda lacked the intention necessary to be guilty of the offence with which he was charged; and 4. that the applicant was thus not guilty of conspiring with him to prepare for an act he had no intention of committing.
As to ground 3, the applicant submitted that the trial judge erred in holding that the common law immunity from charges of conspiracy between husband and wife did not apply to conspiracy charges under s 11.5 of the Code.

Respondent's submissions

As to ground 1, the Crown submitted that the evidence relied upon did not amount to "fresh" or new evidence. Secondly, even if fresh, it was submitted that the evidence lacked credit such that this Court would not act on it. Finally, it was submitted that the evidence does not, in any event, have the significance it is contended to have by the applicant.
As to ground 3, the Crown submitted that if it were necessary to decide the issue, the spousal immunity rule formed no part of the common law of Australia at the time of the enactment of the Code. In any event, it was submitted that the plain intention of the legislature was that no such rule was incorporated in the Code.

Ground 1

At the relevant time s 11.5 of the Code provided: 11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. Note: Penalty units are defined in section 4AA of the Crimes Act 1914. (2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. (2A) Subsection (2) has effect subject to subsection (7A). (3) A person may be found guilty of conspiracy to commit an offence even if: (a) committing the offence is impossible; or (b) the only other party to the agreement is a body corporate; or (c) each other party to the agreement is at least one of the following: (i) a person who is not criminally responsible; (ii) a person for whose benefit or protection the offence exists; or (d) subject to paragraph (4)(a), all other parties to the agreement have been acquitted of the conspiracy. (4) A person cannot be found guilty of conspiracy to commit an offence if: (a) all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or (b) he or she is a person for whose benefit or protection the offence exists. (5) A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person: (a) withdrew from the agreement; and (b) took all reasonable steps to prevent the commission of the offence. (6) A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so. (7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. (8) Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of Public Prosecutions. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, an offence of conspiracy before the necessary consent has been given.
A "terrorist act" is defined in s 100.1 of the Code. That section provided at the relevant time: Terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. … (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public.
The trial judge described the elements of the definition relevant to this case in the following terms in R v Bayda; R v Namoa (No 8) [2019] NSWSC 24 at [6] (which were not criticised on appeal) as: 1. involving the use of a weapon or weapons which would in the ordinary course of events cause serious physical harm or death to one or more persons; 2. which is intended to advance the cause of Islam by violence; and 3. which is intended either to: 1. coerce or intimidate the government of the Commonwealth or that of New South Wales; or 2. intimidate the public or a section of the public (or both (a) and (b)).
As to the negative limb of the definition of a "terrorist act", the trial judge observed correctly that: "[7] A further statutory criterion of a 'terrorist act' is that it should not constitute mere 'advocacy, protest, dissent or industrial action': see s 100.1(3) [of the Code]. That negative stipulation will in most cases be redundant and it was of no significance in this case."
The principles to be applied in considering a ground of appeal based on what is submitted to be "fresh evidence" are well known. In R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] Kirby J (with whom Mason P and Levine J agreed) summarised them thus: 1. fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence; 2. great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his or her trial; 3. the court is ultimately concerned with whether there has been a miscarriage of justice. The fresh evidence must be examined in the context of the evidence given at the trial: Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 at 301 per Toohey and Gaudron JJ; 4. the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought; 5. where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the court's satisfaction, or the court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new. Here, an acquittal is sought; 6. where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where: 1. the evidence is fresh; 2. the evidence is "credible" or at least capable of belief (Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 at 395 per Gibbs CJ), or "plausible" (Mickelberg v The Queen at 301 per Toohey and Gaudron JJ); and 3. the evidence, in the context of the evidence given at the trial, would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen at 410 per Brennan J) or, if there is a practical difference, there is a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen at 402 per Mason and Deane JJ); and 1. the concept of a miscarriage of justice is not an abstract investigation of the truth. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better: Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 at 517 per Barwick CJ.
I have concluded that most of the evidence of Mr Bayda given on sentence described at [18]-[21] above was not "fresh". The evidence was essentially to the same effect as that contained in Mr Bayda's electronic record of interview which, whilst not admissible against the applicant, was available to be deployed by her at the trial if she chose to rely on it. In that interview Mr Bayda said: 1. "I've never had the intention to hurt someone and kill someone. No. Never. I've never had that intention." 2. "I'm too soft man. I don't, never even think of hurting someone with a knife. I'm telling you. It's not something I'd do, no." 3. "I told you, I've got nothing to do with it, man, I never intended to hurt anyone. Man, if I knew this shit was on my phone, I wouldn't even have it there. ... l wouldn't have saved it on my phone, man." 4. "I never intended to hurt no-one. Never had the intention or plan to even hurt someone, man. It's not, as a Muslim, it's not something I'd ever do." 5. When asked whether he had ever spoken to anyone about "doing anything like this" Mr Bayda replied "No. No. Never. Never. I tell you, I'd never hurt someone or kill someone, no. It's not me, man. It's not me." 6. "If I had this stuff on my phone, man I would not even had it if I knew this shit was dangerous and actually meant this. I actually read it and knew what I had on my phone, no, I wouldn't have it to start with, man. I never intended to hurt anyone or planned anything man."
That is, evidence was available to the applicant from Mr Bayda, if she chose to rely on it, to the effect that Mr Bayda did not intend to hurt or kill anybody, including on New Year's Eve in 2015.
The only matter of substance appearing in Mr Bayda's evidence on sentence which was not in his record of interview was his characterisation of his communications with the applicant as "deceptive". The content of that "deception" was that, according to Mr Bayda, contrary to what he understood the applicant to believe about his plans for the attack on non-Muslims on New Year's Eve, Mr Bayda did not plan to die as part of that attack. Given the "great latitude [which] must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his [or her] trial" (R v Abou-Chabake at [63]), I am prepared to accept that this evidence was "fresh" within the meaning of the authorities.
I also conclude, as did the trial judge for the purpose of sentence, that Mr Bayda's evidence that he was exaggerating the scale of the planned attack to the applicant, for the purposes of securing her favour, was credible evidence. I accept that Mr Bayda's evidence was credible to the extent that he sought to "manipulate" the applicant to believe that the attack he planned on New Year's Eve was more significant and dangerous than the attack he in fact planned to carry out.
I do not accept, however, that Mr Bayda was demonstrated by this evidence to be a "pretence conspirator" as submissions on behalf of the applicant sought to characterise him. The Crown was not obliged by the charge preferred to prove that acts were done in preparation for any specific terrorist act or acts. What was necessary was that the Crown prove that the applicant and Mr Bayda agreed to do acts in preparation for a terrorist act which involved, relevantly, the detonation of an improvised explosive device, the use of an incendiary device or the use of a bladed weapon, which were acts to be done with the relevant intention and in circumstances identified in the statutory definition. In the context of the evidence at the trial, Mr Bayda's evidence at the sentencing hearing, at its highest, did not demonstrate any miscarriage of justice. Whether or not Mr Bayda planned to die as part of the operation he was planning on New Year's Eve formed no part of the agreement with the applicant alleged by the Crown.
Mr Bayda's evidence on sentence was that on 26 and 27 December he, Mr Suleyman and Mr Obeid began planning what Mr Bayda described as an "extremist operation". On 27 December 2015 Mr Bayda told the applicant that he was planning an "extremist operation". The applicant was initially against this but later agreed with Mr Bayda and encouraged him to carry out an "extremist operation". The fact that the applicant envisaged that Mr Bayda's New Year's Eve attack would be on a grander scale than in fact he planned is not inconsistent with the jury's conclusion that there was a conspiracy as charged.
As I have said, I accept the initial premise of the applicant's argument, namely that Mr Bayda's evidence that he did not intend to die as part of an attack planned to be carried out on New Year's Eve was both "fresh" and sufficiently credible to be taken into account. Like the trial judge in his sentencing remarks, I accept that Mr Bayda exaggerated the nature and extent of what he was planning to do on New Year's Eve to the applicant. I also agree with the finding on sentence made by the trial judge that the applicant could well have been taken in by false boasting by Mr Bayda that he planned a suicide mission.
Those conclusions do not, however, address the critical question. Even if, as the applicant submits should be done, attention is confined to the events of New Year's Eve, there is no doubt that the applicant clearly agreed with Mr Bayda in the making of preparations for a terrorist act, as defined. Accepting Mr Bayda's account given at the sentence proceedings at its highest, nevertheless, what he and the applicant agreed about and took steps in preparation for, was an event on New Year's Eve which: 1. involved the use of a weapon or weapons which would in the ordinary course of events cause serious physical harm to one or more persons; 2. was intended to advance the cause of Islam by violence; and 3. was intended to intimidate the public or a section of the public, being non-Muslims.
It is for that reason that Mr Bayda, in his evidence on sentence, said that if, contrary to his expectation, in the course of carrying out the attacks on New Year's Eve he was confronted by the police he would "die a shahid".
The fact that Mr Bayda did not plan to die in the course of the planned attack on non-Muslims on New Year's Eve 2015 does not affect the clear and compelling evidence, from Mr Bayda himself on sentence, that despite exaggerating the likelihood of his death as part of the attack, the applicant and Mr Bayda agreed about the making of preparations for a terrorist attack.
Accepting the degree of exaggeration in his account, Mr Bayda nevertheless planned, on his own account during the sentencing proceedings, to go out in company on New Year's Eve and select a random group of non-Muslims and subject them to a violent attack. In doing so he did not plan to be caught, nor to die in a confrontation with police officers. He nevertheless conspired with the applicant to do acts in preparation for a terrorist act or acts as the indictment alleged.
I am satisfied on all the evidence that the trial judge was correct in his conclusion reached for the purpose of sentence that: "[39] … The fact that she envisaged he might carry out on New Year's Eve an attack of greater scale than in fact he actually intended is not inconsistent with the jury's finding that there was a conspiracy between them as charged."
In the context of the evidence given at the trial, the fresh evidence relied upon would not have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the applicant. There was no "significant possibility" that the jury, acting reasonably, would have acquitted the applicant based on the evidence of Mr Bayda given in the sentencing proceedings.
There is an additional reason why ground 1 must fail. The discussion to date has accepted the premise of the applicant's case, that the events planned for New Year's Eve should be focused upon, to the exclusion of all else. The charge upon which the applicant was convicted was not so limited. The applicant's case under ground 1 failed to grapple with the whole of the evidence in the case and had wrongly focused on the New Year's Eve incident to the exclusion of other evidence which, of itself, was sufficient to support the charge.
Leaving the events concerning the planned New Year's Eve attack to one side, the jury were nevertheless entitled to find that the applicant and Mr Bayda agreed with each other to do one or more acts in preparation for a terrorist act or acts as defined. It was open to the jury to find them guilty on the basis that they agreed to do acts in preparation without having resolved upon a particular terrorist act. In reaching this conclusion the following additional matters bear particular emphasis: 1. the applicant and Mr Bayda had an ongoing and detailed engagement with content on the social media platform "Telegram" which glorified the Islamic State and violent jihad; 2. the applicant and Mr Bayda discussed over the telephone on 12 January 2016 the desirability of violent jihad; 3. when served with the weapons and firearm prohibition orders on 13 January 2016, Mr Bayda immediately telephoned the applicant and said "get the messages off the phone"; 4. that Mr Bayda had given the applicant a knife and shahada flag to keep with her which the Crown contended was so that he would have nothing at his house if raided. The planning between the applicant and Mr Bayda for a terrorist attack included continuing preparations for a knife attack. For that reason, Mr Bayda gave the applicant the knife and flag to hold. The knife was to do the stabbing and the flag was to be left as an indication, or displayed as an indication, of what the attack was about, namely, Islamic extremism. The trial judge correctly found that "[i]t was open to the jury to infer beyond reasonable doubt that these items were being held by [the applicant] for safekeeping pursuant to an arrangement between herself and Bayda. That is the inference I draw" (at [22]) and that "[t]he evidence concerning possession of the knife and flag established overt acts pursuant to this agreement." (at [23]); and 5. whilst the limited preparations of holding the Tactical knife and the shahada flag were not accompanied by any formed intent as to a particular attack or to a degree of violence or property damage which would be inflicted, they were evidence of the continuance of the conspiracy after 1 January 2016, albeit with only a nebulous object of some act of terrorism at some future time.
Mr Bayda's evidence in his sentence proceedings would not have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the applicant. There was no "significant possibility" that the jury, acting reasonably, would have acquitted the applicant based on the evidence of Mr Bayda given in the sentencing proceedings.
Ground 1 should be dismissed.

Ground 3

The applicant framed the issues raised by ground 3 as, first, whether at the time immediately prior to the introduction of the Code in 1995 the common law of Australia recognised an immunity from prosecution for conspiracy for a husband and wife, at least where the husband and wife were the only alleged conspirators. The second question was whether, if so, the Code, and in particular s 11.5, continued to recognise that common law immunity.
The reason for the applicant framing the questions in this way is that in R v LK (2010) 241 CLR 177 at 224; [2010] HCA 17 at [107] a plurality of the High Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) explained that in relation to s 11.5 of the Code: "[107] Spigelman CJ's conclusion that the words 'conspires' and 'conspiracy' in s 11.5(1) are to be understood as fixed by the common law subject to express statutory modifications is to be accepted".
If it were necessary to decide the issue, I would conclude that the trial judge was correct to find in R v Bayda; R v Namoa (No 3) at [78] that at the time immediately prior to the introduction of the Code in 1995 the common law of Australia did not recognise an immunity from prosecution for conspiracy for a husband and wife, even where the husband and wife were the only alleged conspirators.
In PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21 the question was whether a man charged in 2010 with rape of his wife allegedly committed in 1963 could not be guilty on the basis that upon their marriage his wife had given her consent to sexual intercourse and thereafter could not retract her consent, at least while they remained lawfully married. That in turn raised the question of the content of the common law of Australia in 1963. As is well known, one of Sir Matthew Hale's legal maxims in The History of the Pleas of the Crown (1736) was, at least until the late 20th century, often understood to provide a basis for the conclusion that at common law a husband could not be guilty of raping his lawful wife. [1] In PGA French CJ, Gummow, Hayne, Crennan and Kiefel JJ held at [64] that: "[64] By the time of the enactment in 1935 of the [Criminal Law Consolidation Act 1935 (SA)], if not earlier (a matter which it is unnecessary to decide here), in Australia local statute law had removed any basis for continued acceptance of Hale's proposition as part of the English common law received in the Australian colonies. Thus, at all times relevant to this appeal, and contrary to Hale's proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife. Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape."
In reaching this ultimate conclusion the plurality explained at [29]-[30]: "[29] This creative element of both inductive and deductive reasoning in the work of the courts in Australia includes the taking of such steps as those identified by Sir Owen Dixon in his address 'Concerning Judicial Method' [(1956) 29 Australian Law Journal 468, 472]. In his words, these are: (i) extending 'the application of accepted principles to new cases'; (ii) reasoning 'from the more fundamental of settled legal principles to new conclusions'; and (iii) deciding 'that a category is not closed against unforseen instances which in reason might be subsumed thereunder'. [30] To these steps may be added one which is determinative of the present appeal. It is that where the reason or 'foundation' [See the statement by Lord Penzance in Holmes v Simmons (1868) LR 1 P & D 523 at 528‑529] of a rule of the common law depends upon another rule which, by reason of statutory intervention or a shift in the case law, is no longer maintained, the first rule has become no more than a legal fiction and is not to be maintained."
There is little doubt that there was once a common law rule that a husband and wife could not be guilty of conspiracy. Hawkins, Pleas of the Crown 1716-1721 Vol 1 states at ch 72 s 8: "It plainly appears from the Words of the Statute [referring to the Ordinatio de Conspiratoribus, 33 Edward I, Stat 2, made in 1305], That one Person alone cannot be guilty of Conspiracy within the Purport of it; … upon the same Ground it hath been holden, that no such Prosecution is maintainable against a Husband and Wife only, because they are esteemed but one Person in Law, and are presumed to have but one Will." (Footnotes omitted.)
The applicant in the present case accepted that the basis for the rule suggested by Hawkins and many subsequent text-writers could no longer be supported. The applicant specifically disavowed the submission that the "rule" that a husband and wife could not be guilty of conspiracy on the basis that they were in law one person with one will (or soul) remained part of the common law of Australia: "PAYNE JA: What's the [rationale] for this? I understand what you say about the model law, but what's the rationale for it being any part of the common law of Australia? Is it still the one flesh doctrine or is it something else? O'DONNELL: Of course not no, I don't advance that. PAYNE JA: Well what is it? O'DONNELL: That's an archaic proposition. But the notion more modern, which is evidence would have been accepted in at least some jurisdictions is marital - the right word might be - I think it's referred to in dealing with one of the decisions, stability of marriage."
The basis in authority for the original proposition stated by Hawkins is also elusive. The following passages from Winfield, History of Conspiracy and Abuse of Legal Procedure (1982, Cambridge University Press) at 64 and 88 are relevant: "Text-books tell us that the writ would not lie against husband and wife, thought it would against husband and wife and a third party; for husband and wife are one person. The authorities cited for the first proposition is not, as reported, satisfactory. In Hil 38 Ed III f 3, the writ was brought against husband, wife and a third party, and it was argued that husband and wife could not conspire. The writ was abated because it did not shew by whom it was sued, and because there was mere advice, and not procurement. No opinion was expressed on the main point. In 19 Ed III, where a writ was brought against husband and wife and others, and exception was taken to it on the ground that a woman, and particularly a femme covert could not be understood in law to conspire, the writ was adjudged to be good." "On the other hand, 19 Y.B. Ed. III 346 is against any such view. The writ was against a man, his wife and others, and exception was taken to it on the ground (among others) that it cannot be understood in law that a woman could be supposed to conspire, and particularly a femme covert. But the writ was adjudged to be good, and there is evidence that suitors had experimented with a writ in the 14th century. It is difficult to think of any intelligible reason for the alleged immunity, but perhaps a confused analogy with the rule that the writ did not lie against husband and wife - a rule itself of doubtful foundation - may have been the root of it." (Footnotes omitted.)
That conspiracy is also a tort should not be forgotten and appears to form the backdrop of some of the confusion in this area. Leeming JA writing extra-judicially in Leeming, The Statutory Foundations of Negligence (2019, The Federation Press) at 109 explains the history in Australia of tort reform relevant to the "one will" or "one soul" doctrine with customary precision: "Secondly, what if the other person enjoyed an immunity? One common problem was where two spouses were in a motor vehicle accident, with one driving and the other a passenger, and the passenger was injured because of the negligence of both the spouse and a driver in a second vehicle. That other driver was unable to seek statutory contribution against the spouse driver, because one spouse was immune from being sued in tort by another spouse, and so the spouse driver was not an 'other tort-feasor liable in respect of that damage'. The rule was an expression of the common law doctrine of unity, [For the misleading nature of the label given to this doctrine, see G Williams, "The Legal Unity of Husband and Wife" (1947) 10 MLR 16] which had been preserved by the married women's property legislation, [See, for example, Married Women's Property Act 1882 (UK), s 12 and K Pearlston, "Male Violence, Marital Unity, and the History of the Interspousal Tort Immunity" (2015) 36 J of Leg Hist 260 at 291-295] although the interpretation of the provision caused considerable difficulty. [See S Cretney, Family Law in the Twentieth Century: A History (Oxford University Press, Oxford, 2003), p 99.] By 1930, this was justified on the basis that litigation between spouses was 'unseemly, distressing and embittering': Gottliffe v Edelston [1930] 2 KB 378 at 392. This was abrogated in New South Wales only in 1964, and then only in relation to the protection of property, or bodily injury or death arising out of the use of a motor vehicle. [By the Law Reform (Married Persons) Act 1964 (NSW), amending the Married Women's Property Act 1901 (NSW) (ss 16, 16A and 16B)]. The course of other State and Territory legislation abrogating this immunity in the 1960s may be passed over, [It is summarised in Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [194]] because federal law in the form of s 119 of the Family Law Act 1975 (Cth) removed all immunity between the parties to a marriage in cases of tort and contract: 'Either party to a marriage may bring proceedings in contract or in tort against the other party'."
Most of the states and territories have addressed the issue of any immunity between husband and wife for the offence of conspiracy by legislation. In NSW the abolition of any immunity was effected by s 580D of the Crimes Act 1900 (NSW). As discussed by the NSW Law Reform Commission in its report on Complicity, Report No 129 (2010) at 181: "6.57 The position, at common law, is that a husband and wife cannot be guilty of conspiring with each other. The common law immunity has been abolished in a number of jurisdictions, including NSW and the Northern Territory, and by the Commonwealth and ACT codes by implication. 6.58 Some jurisdictions, for example, Tasmania, and England and Wales, have retained the immunity, which has been criticised as 'outdated'. The Law Commission has recommended the repeal of the provision in England and Wales on a number of occasions. 6.59 The Victorian Working Group recommended retention of the common law rule, which had previously been partially repealed, in relation to conspiracies between spouses to commit treason or murder, an outcome now preserved in the Crimes Act 1958 (Vic)." (Footnotes omitted.)
The only intermediate appellate authority dealing with this issue under the Code, R v Byast [1999] 2 Qd R 384; [1997] QCA 276, was a case where the two people charged with conspiracy were not lawfully married, and it was held that on any view of the immunity it could not apply. In reaching that conclusion the Queensland Court of Appeal assumed at 385 that: "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."
That is, the Queensland Court of Appeal assumed, without deciding, that the immunity survived at common law and, further, that the common law immunity would otherwise have applied to the Code. Critically for present purposes, the Queensland Court of Appeal assumed that the basis for the immunity was that a husband and wife "are considered as the one person, possessed of the one will."
It will be recalled that the applicant disclaimed reliance upon that basis for the continued existence of the immunity and conceded that she could not support the continued application of the immunity on that basis. That concession was correctly made. By the time of the enactment of the Code in 1995, statutory intervention in the status of married women had made the proposition that a married couple possessed "one will" and were considered to be "one person" untenable. As the High Court explained the correct approach in PGA at [30] in such a case the first rule (here the immunity) "has become no more than a legal fiction and is not to be maintained."
The only Australian authority relied upon by the applicant for the continued existence of the immunity was a decision of the South Australian District Court in R v Won & Singh [2012] SADC 177. Importantly, Soulio DCJ held at [32]-[33] that there was an immunity for conspiracy under the Code between husband and wife which was not due to the "one will" or "one person" doctrine. That is, the decision in Won & Singh does not support the existence of the immunity at common law based on the doctrine that a husband and wife legally comprise "one person" sharing "one will".
In Won & Singh Soulio DCJ upheld the existence of an immunity at common law, which his Honour found applied to the Code by reason of public policy considerations being "the stability of marriage and the criminalisation of mere agreement between husband and wife which would have a significant effect in discouraging marital confidences and the quality of marital relationships": at [33]. Soulio DCJ concluded: "[42] At common law it is an essential ingredient of the offence of conspiracy that the criminal agreement is between an accused and someone other than their spouse. Despite what may be regarded as an anachronistic view of the nature of a relationship between husband and wife, that common law rule remains in place, even if it is thought that public policy has changed. [43] Accordingly, for the purposes of s 11.5(1), I accept that the common law definition of conspiracy applies, and that, in turn, a husband and wife cannot be guilty of conspiracy, if they are the only conspirators."
The principal authority relied upon by Soulio DCJ for this new basis for the existence of the immunity was the first instance decision of Oliver J in Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496. In that case the immunity afforded a husband and wife for the tort of conspiracy was conceded by the plaintiff and not in contention (at 520). Oliver J, in a passage referred to by Soulio DCJ held (at 521): "I infer therefore, that the continued existence of the rule, in relation to the crime of conspiracy rests, as the more modern cases suggest, not on a supposed inability to agree as a result of some fictional unity, but on a public policy which, for the preservation of the sanctity of marriage, accords an immunity from prosecution to spouses who have done no more than agree between themselves in circumstances which would lay them open, if unmarried, to a charge of conspiracy."
Two points should be made about this case: 1. the case was a civil conspiracy case. In England and Wales s 2(2)(a) of the Criminal Law Act 1977 in force at the time explicitly provided a statutory immunity for a husband and wife from a charge of criminal conspiracy; 2. the decision went on appeal where the suggested rationale for the immunity was different. No member of the Court of Appeal supported the suggestion by Oliver J about a new rationale for the immunity.
On appeal in Midland Bank Trust Co Ltd v Green (No 3) [1982] Ch 529, the three Court of Appeal judgments provided no support for this new basis for the immunity: 1. Lord Denning MR (at 538-9) rejected the doctrine altogether, save to the extent it was preserved by statute: "The authorities cited by Mr Munby show clearly enough that medieval lawyers held that husband and wife were one person in law: and that the husband was that one. It was a fiction then. It is a fiction now. … It has been so much eroded and cut down in law, it has so long ceased to be true in fact, that I would reject Mr Munby's principle. … The severance in all respects is so complete that I would say that the doctrine of unity and its ramifications should be discarded altogether, except in so far as it is retained by judicial decision or by Act of Parliament." 1. Fox LJ (at 540) referred to the position in crime and the then recent Criminal Law Act 1977: "It is clear that a husband and wife cannot be convicted of the crime of conspiracy if they are the only parties to the conspiracy alleged. That has long been the law. It was confirmed by the Criminal Law Act 1977." 1. Sir George Barker (at 542) sourced the immunity in a biblical reference: "The legal doctrine, in so far as there was ever one, of unity of husband and wife, whether founded originally on unity of flesh from Genesis, Chapter 2, verse 24 … or on the subjugation of women to man resulting in the submersion of the wife in the husband, he being the head, 'the two are one and that one is the husband,' survives in the very limited rule now to be found in the exemption from liability for conspiracy."
Midland Bank Trust Co Ltd v Green (No 3) on appeal does not on analysis provide any support for the tentative new basis for the immunity which appealed to Oliver J. The context was so completely different as to make the conclusion that Oliver J's obiter formed part of the common law of Australia at the time of the introduction of the Code untenable.
An important contribution to the literature on this topic is contained in Glanville Williams, "The Legal Unity of Husband and Wife" (1947) 10 Modern Law Review 16. Glanville Williams noted that text-writers have said a husband and wife cannot be guilty of conspiring together and that it (at 20): "seems fairly clear that this rule, if it exists, owes its origin to the doctrine of unity, or at any rate to the doctrine of the wife's subordination".
Glanville Williams doubted whether the rule could be supported in 1947 on the grounds of policy (at 20-1). Glanville Williams noted at 21 that: "[i]f it is thought desirable that the police should be able to take preventive and deterrent action against conspirators, there would seem on the whole to be no adequate reason for exempting the husband and wife from the operation of the general rule".
Decisions where the immunity rule has been "unreflectingly followed", as described by Glanville Williams at 21, include R v McKechie [1926] NZLR 1 where a majority of the New Zealand Court of Appeal held that there was an immunity for conspiracy between husband and wife because husband and wife are legally one person; Kowbel v The Queen [1954] SCR 498 where a majority of the Supreme Court of Canada held that a husband and wife could not be found guilty of conspiracy, because judicially speaking they form but one person, and are presumed to have but one will and Mawji v The Queen [1957] AC 126, where the Privy Council held at 135 that: "Their Lordships accept the submissions of the respondent that the rule is an example of the fiction that husband and wife are regarded for certain purposes, of which this is one, as in law one person. Some of the consequences of the fiction have been removed or modified by statute. This has not."
If it were necessary to decide this issue, I would conclude that this is a case where, like PGA, a rule of the common law depended upon another rule which, by reason of statutory intervention or a shift in the case law, is no longer able to be maintained. The underlying basis for the rule that legally husband and wife were "one person" has not been true in Australia since, at the latest, 1975 when the Family Law Act 1975 (Cth) removed all immunity between the parties to a marriage in cases of tort and contract. The common law rule that a husband and wife cannot be guilty of the crime of conspiracy had, at least by the time immediately prior to the enactment of the Code in 1995, become no more than a legal fiction and should not now be maintained.
I have concluded that the trial judge was correct to find that, even assuming the common law immunity in relation to criminal conspiracy had survived until 1995, it would be inconsistent with s 11.5 of the Code.
As is well known, the critical background to the introduction of the Code was the work of the Model Criminal Code Officers Committee. The Final Report of the Committee specifically addressed this issue: "No protection is provided for spouses. Clearly a husband and wife can be guilty of conspiring with each other. Marital immunity is outdated; any objections to husband/wife conspiracies are objections which go to the nature of the conspiracy offence itself; see Majwi [1957] AC 126; Kowbel [1954] SCR 498 and discussion by the Gibbs Committee at para 39.3. Some Griffith Codes are also outdated on this issue: see s 33 Queensland Code (recommended for repeal by O'Regan, p 5) and s 297(2) Tasmanian Code, both taking the common law position." Source: Criminal Law Officers Committee of the Standing Committee of the Attorneys-General, Final Report Chapter 2 General Principles of Criminal Responsibility (December 1992) at 101-2.
The applicant relies upon the principle of legality as supporting the proffered construction. In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [307]-[314] Gageler and Keane JJ explained the principle of legality as one of construction and said: "[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'." (Footnote omitted.)
Here, to borrow from the analysis of their Honours in Lee, the relevant context of legislation, the Model Criminal Code Officers Committee upon which this part of the Code was based, makes it plain that the legislature has directed its attention to the question of the abrogation or curtailment of the immunity in question and has made a legislative determination that the immunity is to be abrogated or curtailed.
Further, the language of s 11.5 is a sufficiently clear statement of the legislature's intention that, as the Model Criminal Code Officers Committee put it: "no protection is provided for spouses". A "person" is defined inclusively in the Dictionary to the Code in the following way: person includes a Commonwealth authority that is not a body corporate, and another has a corresponding meaning. Note: This definition supplements subsection 2C(1) of the Acts Interpretation Act 1901. That subsection provides that person includes a body politic or corporate as well as an individual.
The use of the words "with another person" in s 11.5 includes a husband and wife conspiring with each other. It would only be if a husband and wife should not be seen as a separate "person" that the language could be understood as providing immunity to a husband and wife.
The language used in the remaining provisions of pt 2.4 div 11 of the Code is also inconsistent with the continued existence of immunity between a husband and wife for conspiracy. For example, s 11.2 which is headed "Complicity and common purpose" provides that a "person" who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
A "person" (being a husband) within the meaning of s 11.2 may be complicit in an offence by "another person" (being a wife). It would not be a coherent reading of the provisions as a whole to conclude that a "person" in s 11.5 had a different meaning to a "person" in 11.2.
The language used is sufficiently clear to demonstrate a parliamentary intention that any immunity for conspiracy between a husband and wife was no longer to apply under the Code. On the clear language of the statute, a husband and wife are each a "person" and can be guilty of conspiring with each other.
Ground 3 should be dismissed.

Conclusion and orders

As ground 1 of this appeal does not raise a pure question of law, leave to appeal is required. For the foregoing reasons I propose that the Court make the following orders: 1. Leave to appeal granted on ground 1; 2. Appeal dismissed.
JOHNSON J: I agree with the reasons of Payne JA and his Honour's proposed orders.
DAVIES J: I agree with Payne JA.

Endnote

See, for example, R v R [1992] 1 AC 599; R v L (1991) 174 CLR 379; [1991] HCA 48. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2020

(UK) Family Law Act 1975(Cth)

Law Consolidation Act 1935(SA)

Law Reform (Married Persons) Act 1964(NSW)

Married Women's Property Act 1901(NSW)

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