R v Bayda; R v Namoa

Supreme Court of NSW|2018-08-31|Before: Fagan J

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 Alo-Bridget Namoa applied for an order permanently staying a charge of conspiracy against them to do an act in preparation for, or planning, a terrorist act, upon which they had been indicted and were then about to be tried. They claimed they were married to each other at the time of the alleged conspiracy and that, at common law and under s 11.5 of the Criminal Code (Cth), the crime of conspiracy cannot be committed by a husband and wife alone. I dismissed the application the day it was made and reserved my reasons, which I now publish.
On 1 September 2017 Bayda and Namoa were arraigned on an indictment charging the conspiracy count together with other substantive offences of a terrorist nature, laid under ss 101.4(1) and 101.5(1) of the Criminal Code. They pleaded not guilty to all counts. The Crown notified the Court and the accused on 13 July 2018 that it intended to proceed to trial only on the charge of conspiracy, which was in these terms: that between 8 December 2015 and 25 January 2016 at Sydney in the State of New South Wales and elsewhere [they] did conspire with each other to do acts in preparation for or planning a terrorist act or acts.

The Crown's proposed substantive charge under s 101.6(1)

On 27 August 2018 the Crown notified the accused that it proposed to proceed upon a single substantive count, in lieu of the conspiracy. The Crown proposed to charge the accused jointly with a substantive contravention of s 101.6(1), in these terms: that between 8 December 2015 and 25 January 2016 at Sydney in the State of New South Wales [they] did acts in preparation for or planning a terrorist act (or acts).
The accused sought particulars of the acts alleged to have been done in preparation for or in planning a terrorist act. On 28 August 2018 a three-page schedule of particulars was supplied by the Crown, describing a diverse range of acts allegedly carried out between 8 December 2015 and 25 January 2016. These included viewing Islamic ideological writings online, downloading such writings, viewing instruction manuals concerning how to kill non-Muslims (including with knives and improvised explosive and incendiary devices), downloading such instructions, purchasing knives, communicating with each other about making a violent attack upon non-Muslims, acquiring a black flag bearing an Islamic slogan in white writing and, in Namoa's case, encouraging Bayda to carry out a terrorist act.
Having received these particulars Namoa's counsel submitted to the Court that the proposed substantive charge was bad for latent duplicity and that the Crown should be put to an election as to which of the numerous particularised acts was relied upon, so as to confine its case to one instance of infringement rather than multiple instances.
Section 101.6(1) is in these terms, so far as relevant: 101.6 Other acts done in preparation for, or planning, terrorist acts (1) A person commits an offence if the person does any act in preparation for, or planning, a terrorist act. Penalty: Imprisonment for life. (2) A person commits an offence under subsection (1) even if: (a) a terrorist act does not occur; or (b) the person's act is not done in preparation for, or planning, a specific terrorist act; or (c) the person's act is done in preparation for, or planning, more than one terrorist act.
Section 23(b) of the Acts Interpretation Act 1901 (Cth) provides that "words in the singular number include the plural". Accordingly, an offence against s 101.6(1) may be committed not only if a person "does any act in preparation for, or planning, a terrorist act" but also if he or she "does any [acts] in preparation for" etc. However this does not negate the fundamental requirement of criminal pleading that only one instance of contravention of the relevant law may be alleged in a single charge. It follows that if multiple acts are alleged as the particulars of a count laid under s 101.6(1) they must have sufficient connection with each other to constitute a single contravention.
The principle is as stated in Director of Public Prosecutions v Merriman [1973] AC 584 by Lord Diplock (at 607): Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.
The connection may be temporal, as where a number of related actions are taken by the accused within a short space of time. The connection may flow from the type or character of the acts, for example if numerous repetitive or similar actions are undertaken or if there is a sequence such that each act relied upon by the Crown flows from or builds upon a previous action. In the present case there is insufficient temporal proximity between the preparatory acts alleged and insufficient homogeneity amongst them to permit the Crown's particulars to be treated as a single instance of offending, even on the most generous view of how a multi-part activity might be characterised as a single "act in preparation".
For the substantive offence to be committed it is not necessary that the accused should have formed a settled intent as to a specific terrorist act that is to be carried out: s 101.6(2)(b) and (c); B v R [2008] NSWCCA 85 at [43]-[46]. However, in any case where a specific act of terrorism is planned and numerous actions of the accused, of diverse type and character, are carried out in preparation for it, the specific purpose of committing the planned act of terrorism may of itself provide sufficient connection between the acts particularised to enable them to be seen as a single breach of s 101.6(1). Here the Crown does not allege that any specific terrorist act was planned by the accused. The acts of preparation and planning relied upon are alleged to have been directed to an act of terrorism which was as yet unidentified, either as to type, date or location. On the Crown case, there was in contemplation no terrorist act sufficiently specific to unify all the alleged acts of preparation as being referrable to it.
The terms in which a statutory offence is enacted may affect how readily the Crown may charge a connected series of acts as a single offence rather than as separate offences, one for each act. For example, the operative word "supply" in s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) has been found apt to describe a series of individual supplies which may be charged as one offence committed during an interval between dates: see Khaled Hamzy v R (1994) 74 A Crim R 34 .
The operative words of s 101.6(1), "does an act", are not naturally and obviously engaged by the doing of a series of acts between dates. The charging of multiple actions as a single contravention of this section could only be permitted where there is significant unifying cohesion between the acts alleged. It may be that the prohibition intended by s 101.6(1) would have been better achieved by operative words such as "undertakes preparation for, or planning of, a terrorist act" or simply "prepares, or plans, a terrorist act". Wording of that nature would more readily cover a range of activity over an extended interval as a single offence.
For these reasons I informed the Crown on 28 August 2018 that the Court would require it to make an election amongst its particulars, to narrow the case to a scope which could be characterised as a single infringement of s 101.6(1), thus avoiding latent duplicity in the charge. Requiring the Crown to make an election is the appropriate remedy, rather than quashing the indictment: Johnson v Miller (1937) 59 CLR 467 at 489-490; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at 110 (Kirby J). I allowed that the election might nominate a multi-act subset of the three pages of particulars given on 28 August 2018. However, I indicated that I was unable to see how the list of particulars could be narrowed by such an election and yet still leave a viable charge.
None of these difficulties attended the charge of conspiracy as originally laid by the Crown. The alleged acts of the accused, diverse as they were and extending over a charge period of six weeks, would more readily lend themselves to characterisation as overt acts of a single agreement between the accused to perform acts in preparation for, or planning, a terrorist act. The single count of conspiracy would be maintainable and not duplicitous even if the alleged objects of the conspiracy amounted to the commission of more than one substantive offence against s 101.6(1): B v R at [21]-[22], [109], [110].
In explanation of why it was sought to allege the substantive offence rather than a conspiracy, despite the apparent greater suitability of a conspiracy charge to the particulars of alleged conduct, the Crown referred to authority which suggested that at common law a man and wife could not be guilty of conspiracy with one another alone. If there was a choice, the Crown understandably wished to avoid proceeding on a conspiracy charge which would attract arguments that such authority is sound and that the common law rule has been incorporated into the offence of conspiracy created by s 11.5 of the Criminal Code. However the Crown ultimately accepted that the difficulties of proceeding on the substantive charge and of having to make an election amongst its list of particulars were too great. On 29 August 2018 the Crown announced it would proceed on the conspiracy charge, after all.

The accused's application for a permanent stay

Counsel for both accused thereupon stated they would adduce evidence to prove they were married on 30 December 2015. They foreshadowed an application for a permanent stay of the conspiracy charge on the basis that the putative common law rule that there can be no criminal conspiracy between man and wife has been incorporated into the Criminal Code. On 31 August 2018 that application was formally made. In support of it the accused called a marriage celebrant, Mr Mustafa Arjar, who gave evidence of an Islamic ceremony he performed in relation to the two accused on 30 December 2015.

Status of the marriage ceremony conducted on 30 December 2015

As will be seen from some of the authorities discussed below, in common law jurisdictions where the putative rule has been recognised it has been said to be engaged if a marriage between the alleged conspirators had been solemnised before the conspiracy was entered into. For reasons which follow I have concluded that the putative rule is not part of the law governing the charge of conspiracy against the accused. If it were, I do not consider that it would be open to me to determine on this stay application the question whether a marriage had been solemnised in this case. That question is legally and factually arguable on the application of the Marriage Act 1961 (Cth) to the evidence adduced by the accused on the stay application. I would consider it necessary to empanel a jury and proceed with the trial, in due course directing the jury that the Crown must prove beyond reasonable doubt that a marriage was not solemnised between the accused. It would in that case be necessary to provide detailed instructions on the law as to what would constitute a solemnised marriage.
If the putative rule applied, this stay application would come down to a question whether the Crown will be able to tender evidence from which the jury could conclude that no marriage was solemnised. The test to be applied in such a case is whether there is a deficiency of such proof which constitutes an "incurable vice" (R v Smith [1995] 1 VR 10 at [29] (Byrne J)) so that the Crown case is "condemned to remain" plainly hopeless (Mark Little (a pseudonym) v R (2015) 44 VR 816; [2015] VSCA 62 at [74] (Lasry and Forrest AJJA)). A permanent stay may only be granted if the Crown case is foredoomed to fail. See also R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 at [14]-[25] (Bathurst CJ) and R v Blackett [2018] NSWCCA 114 (publication restricted). On a point such as this, that pre-requisite could only be satisfied if the solemnisation of a marriage between the accused, at a time prior to the events which allegedly constituted the conspiracy, was a fact either conceded by the Crown or shown to be incapable of disproof by it.
The Crown did not concede this point. The evidence on the stay application left the question of whether the Crown can prove there was no solemnised marriage between these accused in a state of uncertainty. It is not necessary for me to decide the stay application on the issue of whether the Crown has evidence upon which the jury could find there was no marriage. In my view the putative rule against husband and wife being criminally liable for conspiracy is not part of the common law of Australia and has not been imported into the crime of conspiracy provided for in s 11.5 of the Criminal Code. The existence of a marriage will therefore not be one of the factual issues in the trial.
I will nevertheless identify where the uncertainty lies concerning the marital status of the accused. First, both the Crown and the accused assumed that a solemnised marriage for the purposes of the putative common law rule would have to be a valid marriage according to the Marriage Act. As will be seen, the rule is said to date from the mid-1300s. Since then it has not been considered in the courts except in a handful of cases decided in various parts of the English-speaking world during the 20th century. Given its ancient origin and lack of development, the concept of a solemnised marriage to which the putative rule relates would likely be a customary or religious ceremony rather than a procedure conforming to the detailed regulatory requirements of a modern act of Parliament. The accused led on the stay application unchallenged evidence of a marriage ceremony on 30 December 2015 which was effective to constitute them man and wife according to the beliefs of Sunni Islam.
Secondly, if the application of the putative rule depends upon a valid marriage under Australian law then it would become necessary to consider the authority of the celebrant who conducted the ceremony on 30 December 2015. In s 5 of the Marriage Act "authorised celebrant" is defined as follows: a) in relation to a marriage proposed to be solemnised in Australia: (i) a minister of religion registered under Subdivision A of Division 1 of Part IV; or (ii) a person authorised to solemnise marriages under Subdivision B of Division 1 of Part IV; or (iii) a marriage celebrant; or (iv) a religious marriage celebrant
Part IV of the Act provides in Div 1 for authorised celebrants. Subdivision A, comprising ss 25-38, provides that the Governor-General may by proclamation declare "a religious body or a religious organisation" to be a recognised denomination for the purposes of the Act and that a "minister of religion" of any such recognised denomination may be registered. "Minister of religion" is defined as a person "recognised by a religious body or a religious organisation as having authority to solemnise marriages in accordance with the rites or customs of the body or organisation". Upon registration such a minister may solemnise marriages in Australia: s 32.
Subdivision B provides that certain State and Territory officers may solemnise marriages. Subdivision C, comprising ss 39A-39D, provides for the registration of "marriage celebrants". Subdivision D entitles a marriage celebrant who is also a minister of religion to be identified on the register of marriage celebrants as a "religious marriage celebrant". Section 39F provides that a registered marriage celebrant, religious or otherwise, may solemnise marriages in Australia.
Mr Arjar testified that he is, and was in December 2015, a registered marriage celebrant. He did not give evidence that he is or was at the relevant time a "minister of religion". As a registered marriage celebrant Mr Arjar was in December 2015 an authorised celebrant, as defined in the Act, and by force of s 41 he could solemnise a marriage in Australia. Mr Arjar said he received a notice of intended marriage, under s 42 of the Marriage Act, from Bayda and Namoa. On presentation of this notice they wished to go through an exchange of offer and acceptance of marriage, in the presence of two Muslim men, forthwith. He stated that this was done and constituted a marriage "in the eyes of God" according to Sunni Muslim belief. He told the accused that he could not solemnise a civil marriage between them in accordance with the Marriage Act unless they came back to him within the next 1 to 18 months to exchange statutory vows. They did not return.
Section 45 provides, in part, as follows: (1) Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister. (2) Where a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words: "I call upon the persons here present to witness that I, A.B. ( or C.D.), take thee, C.D. ( or A.B.), to be my lawful wedded wife ( or husband, or spouse)"; or words to that effect.
As the evidence did not establish that Mr Arjar is a minister of religion, subs (1) of s 45 did not apply. The applicable requirements for solemnisation were as prescribed in subs (2) and were not complied with. Section 48 includes the following subsection: (3) A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.
Not being a minister of religion, Mr Arjar was not authorised by the Act to solemnise the marriage in the manner which he did on 30 December 2015. However the marriage would be valid if (a) either of the accused believed Mr Arjar was "lawfully authorised to solemnise" a purely religious marriage according to Sunni Islam and (b) "the form and ceremony of the marriage" were "such as to show an intention on the part of each of the [accused] to become thereby the lawfully wedded spouse of the other". If the Crown could rebut either of those things, s 48(3) would not save the validity of the purported marriage.
To summarise the position, if the putative common law rule requires no more than a religious or customary form of marriage as the pre-requisite for immunity from prosecution for conspiracy, then the Crown probably could not disprove that such a marriage took place on 30 December 2015. If the rule depends on there having been a valid marriage according to the Marriage Act the Crown's position would be marginally stronger but, again, it probably could not disprove the union.

Common law immunity of spouses from charges of conspiracy

The common law rule for which the accused contended is stated in these terms in Hawkins' Pleas of the Crown, a learned commentary originally published between 1716 and 1721: 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.
Discussion of support for this rule must have regard to the chronology of the rule's origin and of the principal references to it in the cases, as follows: 1. 1345-1366: Year Book entries relied upon by Hawkins as authority for the rule. 2. 1716-1721: Hawkins' Pleas of the Crown, Book 1, c 72, s 8. 3. R v McKechie [1926] NZLR 1, a majority decision of the New Zealand Court of Appeal accepting and applying the rule. 4. Kowbel v The Queen [1954] 4 DLR 337, a majority decision of the Supreme Court of Canada accepting and applying the rule. 5. Mawji v The Queen [1957] AC 126, a Privy Council decision in which the existence of the rule was assumed upon the Crown not disputing it. 6. Midland Bank Trust Co Ltd v Green (No 3) [1979] 1 Ch 496, a decision of Oliver J and on appeal, under the same case name, [1982] 1 Ch 529. 7. The Criminal Code Act 1995 (Cth). 8. Byast v The Queen (1997) 96 A Crim R 61, a decision of the Queensland Court of Appeal accepting that the rule applied to conspiracy under s 11.5 of the Criminal Code but not in the case of a merely de facto marriage. 9. R v Won & Singh [2012] SADC 117, a decision of the South Australian District Court (Judge Soulio) applying the rule in relation to a conspiracy under s 11.5 of the Criminal Code.

Dependence of the rule upon jurists rather than judicial decisions

In Midland Bank Trust Co Ltd v Green (No 3) at 510D Oliver J referred to "the doubtful basis of the rule which, so far as actual authority goes, appears to rest solely on arguments reported in three cases in the Year Books". His Lordship cited Year Book entries from 1345, 1364 and 1366 (years 19, 38 and 40 in the reign of Edward III) and said (at 503): It has always been assumed, although I do not think it has ever actually been decided in terms by any English court, that spouses cannot be successfully indicted at common law for the crime of conspiracy where they are the only parties to the conspiracy alleged … .
Read in translation from their original Law French, the Year Book entries do indeed appear to record only arguments. The scant reports contain no reasoning, judicial or otherwise, to accompany the bare assertion of the purported rule. Oliver J cited (at 510F) what he termed "an impressive list of legal writers both ancient and modern" who have supported the proposition and (at 520G) he described it as "jurist-made law", in contradistinction to judge-made law.
Taschereau J, giving the leading judgment among the majority in Kowbel v The Queen, cited (at 339-340) numerous texts on criminal law and pleading which have stated the rule. However in Fauteux J's dissent in the same case it was pointed out (at 344) that all of these authors "trace the rule to Hawkins' Pleas of the Crown, on whose authority it rests". The authority of the commentators rises no higher than that source and it, in turn, depends upon brief Year Book entries from the 14th century. It has been uniformly observed, wherever the putative rule has been discussed, that from the mid-1300s until R v McKechie in 1926 there was never any judicial reaffirmation or application of it in any decided case.
In PGA v The Queen [2012] HCA 21 the plurality said: [22] The fourth and fifth senses of "common law" identified by Professor Simpson [in The New Oxford Companion to Law (2008) at 164-166] are as follows: "The term 'common law' came, in a fourth sense, to have the connotation of law based on cases, or law evolved through adjudication in particular cases, as opposed to law derived from the analysis and exposition of authoritative texts. Indeed sometimes 'common law' is more or less synonymous with the expression 'case law'. Since the common law was developed by the judges, interacting with barristers engaged in litigation, the expression 'common law' came, in a related fifth sense, to mean law made by judges." This draws attention to a difficulty in the appellant's reliance in this case upon a principle of the common law based upon a statement in a text published in 1736, many years after the death of the author, without citation of prior authority and lacking subsequent exposition in cases where it has been repeated.
The same may be said with at least equal force of the accused's reliance in the present case upon Hawkins' Pleas of the Crown dating from 1716-1721. Oliver J in Midland Bank Trust Co Ltd v Green (No 3) acknowledged that the putative rule depended entirely upon its reiteration by successive text writers and that the concept of a man and wife as one legal person with "but one will" was a fiction which had once pervaded many fields of the law but had long since been abandoned in all of them - except, questionably, criminal conspiracy. I find it surprising, therefore, that his Lordship considered the rule expressed by Hawkins to be "too often stated now to be in doubt". I am unable to accord such authority to the unreasoned repetition by jurists and commentators of a rule based upon "the 'impossible dogma' that husband and wife are in law one person" (Oliver J at 511G, quoting Professor Maitland).
I do not consider it valid to assume that the absence of reported cases on the putative rule is an indication that over the intervening centuries it was so well respected that no attempt was made to lay charges in disregard of it. The fact that the rule is of ancient origin, dating from 1364, is against its continuing validity in the absence of re-endorsement and application by the courts over the intervening 600 years.

Foundation of the rule in the ancient status of married women

As articulated by Hawkins the putative rule contained within its own terms the statement of its sole legal rationale: the status of a married woman as having in the law, generally, no independent legal personality, capacity or will. That may have been the position in the mid-14th century but it clearly is not so in Australian law at the present time and had not been for many years prior to enactment of the Criminal Code in 1995.
In his dissenting judgment in R v McKechie, Ostler J referred (at 15-18) to numerous changes in New Zealand legislation, equitable principles and common law which in his Honour's view had by 1926 changed the status of married women in so many aspects of the law that Hawkins' proposition could no longer be accepted. Similar historical surveys of developments in the legal status of married women appear in the judgment of Oliver J in Midland Bank Trust Co Ltd v Green (No 3) at 512G-520D and in PGA v The Queen [2012] HCA 21 at [44]-[49] and [61]-[63].
In 2018 (and for many decades past) the invalidity of the premise of Hawkins' proposition is (and has been) apparent not merely from specific legal changes which have contributed to the separate legal capacity of married women but from the complete absence of any remaining legal disability of married women under any branch of Australian law. One would search in vain for any respect in which a married woman's legal capacity is subsumed in or merged with that of her husband. A married woman is independent from her husband, in Australian law, with respect to dealing in real or personal property, inheritance under a will or leaving property by will, voting in parliamentary elections, jury service, commencing or carrying on or defending legal proceedings, eligibility for public office or for any profession, directorship of a company or formation of a partnership, entry into contracts and every other form of transaction or activity which may be affected by the law.
In determining whether the putative common law rule is part of the common law of Australia it is not necessary to form a view about current social conditions or to compare them with social conditions of the period from which the rule emerged. Nor is it necessary to examine the law regarding the status of married women in the 1300s. Rather, because the putative rule expressly rests upon the supposed merging of a married woman's legal personality with that of her husband, it is only necessary to consider whether that merging holds good under the current law. It does not. The rule therefore rests upon a legal premise which, assuming it was correct in 1364, has since disappeared.
The approach adopted above is, I consider, consistent with the reasoning of the plurality (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) in PGA v The Queen. Their Honours there said at [30] (citation omitted): [W]here the reason or "foundation" 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.
The question in that case was whether by marriage a wife consented irrevocably to sexual intercourse with her husband so that he could not be guilty of raping her. At [64]-[65] their Honours' conclusion that "lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape" did not depend upon "judicial perceptions today of changes in social circumstances and attitudes". Instead the conclusion flowed from changes made to statute law, as interpreted by the courts, bearing upon the legal incidents of marriage.
In Midland Bank Trust Co Ltd v Green (No 3) Oliver J concluded (from an analysis set out at 511G-521E) that the notion of a husband and wife as in law one person to which Hawkins referred had in mediaeval times been a fiction of the common law, rather than an accurate characterisation of other substantive rules. "Fiction" in this context means a rule of a purely conventional nature, not purporting to have any factual basis in reality. Oliver J traced the erosion and discarding of this fiction. His Lordship considered (at 521) whether the rule might alternatively be supported on the basis that a wife's will should be regarded as in all cases overborne by that of her husband, so that she would be incapable of concluding an agreement with him to commit a crime. His Lordship then said (at 521B): But if it rested on this alone it could not logically survive the development in the law which recognised the retention by a married woman of a distinct legal capacity and certainly could not have survived the contractual capacity conferred by the Married Women's Property Acts of 1882 and 1893. It is an absurdity to hold that a married woman is capable of entering into a commercial contract with a husband … but to deny that she is capable of agreeing with him to commit a crime.
Oliver J was concerned to enquire whether Hawkins' rule was sound in the criminal law of conspiracy, as a prelude to determining whether the tort of conspiracy could be committed by man and wife. It was held that the tort could be committed by spouses. The Court of Appeal agreed. On appeal it was not found necessary to examine, as Oliver J had done, the law of criminal conspiracy. The Court merely noted that immunity of spouses from prosecution for conspiracy had been enacted in the Criminal Law Act 1977 (UK). Lord Denning MR said (at 538): The authorities cited by Mr Munby show clearly enough that mediaeval 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 eroded by the judges who have created exception after exception to it. It has been cut down by statute after statute until little of it remains. 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 [that the doctrine of unity between husband and wife is established in English law].
In R v McKechie, Ostler J quoted from the following passage in an article written by Sir John Salmond before his elevation to the bench (The Theory of Judicial Precedents, (1900) 16 Law Quarterly Review 376). The same passage was invoked, with approval, by the plurality in PGA v The Queen at [24]: The statement that a precedent gains in authority with age must be read subject to an important qualification. Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits. So with the authority of judicial decisions. A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions. Without having been expressly overruled or intentionally departed from, it may become in course of time no longer really consistent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all authority and validity. The law becomes animated by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative.
That describes what has happened to Hawkins' rule. It has been deprived of all authority and validity, it has become obsolete and inoperative and, at least in Australia, it is not part of the common law and has not been since well before 1995.

Alternative rationalisations of the rule

In Midland Bank Trust Co Ltd v Green (No 3) Oliver J said: 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 upon a supposed inability to agree as a result of some fictional unity, but upon 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.
In this passage Oliver J has concluded that the rule continues, on the basis of jurists' commentaries and in the absence of decided cases other than R v McKechie and Kowbel v The Queen, then imputed or inferred that a policy justification must underpin the rule. In the Court of Appeal Fox LJ agreed with this reasoning (at 541). But, with respect, it inverts the sequence in which I find it necessary to approach the problem. The rule is not independently supported by judicial authority. The historical writings lack any defensible, currently valid rationale. The rule therefore can no longer be recognised. I do not assume the rule, in the absence of judicial support for it, and then search for a rationale by which to legitimise it.
In R v Won & Singh his Honour Judge Soulio advanced a policy rationale similar to that of Oliver J, as follows: [31] There seems little argument that the original suggested rationales for the common law rule regarding conspiracy between husband and wife have been discredited - namely that the husband and wife were one person with one mind and will, or that a wife had no independent legal rights, or that a wife was bound to do as instructed by her husband. [32] The rationale contended for by the applicants here is that the common law encourages the stability of marriage and the criminalisation of mere agreement between husband and wife would have a significant effect in discouraging marital confidences and the quality of marital relationships.
The accused advanced this same policy justification on the application before me for a permanent stay. It would not be open to me to adopt it. Where the rule in its origins was inseparably dependent upon the legal fiction of a married woman's legal incapacity, and where that fiction has long since vanished, it is not the role of the Court to re-enact the rule upon arguable social policy grounds which were not invoked at its inception.
Counsel for the accused urged that the public policy rationalisation of fostering and protecting marital confidence drew support from a report of the Victorian Law Reform Commission concerning an amendment to s 339 of the Crimes Act 1958 (Vic). The report was entitled Working Paper No 2, dated January 1975. The Commission's discussion of policy appears in cll 62-65. The amendment proposed in the report subsequently passed into law, enacting immunity of spouses from prosecution for criminal conspiracy with each other, except in cases of conspiracy to commit murder or treason. The fact that the Law Reform Commissioners saw the need to adopt a modern rationale, of preserving marital confidences, to my mind merely emphasises that the original legal basis of the rule has disappeared and that the enactment of rule upon a new basis is a matter for parliaments, evaluating competing policy considerations, not for courts.
The rationale suggested by Oliver J, Judge Soulio and the Victorian Law Reform Commission is not so obvious and indisputable that the courts could take it to justify continuance of the rule. In another field, courts have been astute to protect the confidence of communications between legal professionals and their clients, in order to facilitate the furnishing of advice and the conduct of litigation. However it is not considered that the preservation of even that relationship, of such importance to the law, would warrant immunity from prosecution if a lawyer and his or her client should conspire with one another to commit a crime: s 125 Evidence Act 1995 (NSW); R v Cox & Railton (1884) 14 QBD 153; Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 511-513 (Gibbs CJ).

Absence of binding judicial decisions in Australia

I am not constrained to accept the putative rule by any binding decision of an Australian court. In Byast v The Queen the Queensland Court of Appeal accepted the existence of the rule and its absorption into the Commonwealth offence of conspiracy under s 11.5. However this was not necessary to the Court's decision because, on the facts, the rule could not apply even assuming its validity. The appellants in that case relied only upon a de facto marital relationship, not a solemnised marriage.
The decision of the South Australian District Court in R v Won & Singh is not binding upon me although I have given it full consideration in view of the careful reasoning of Judge Soulio.
In Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427; [1972] HCA 28 Barwick CJ observed (at 438): the common law for Australia … is not necessarily the same as the common law in the United Kingdom.
I would not therefore be bound to follow any decisions of English courts which might appear to sustain the rule. As it happens, I do not consider the decisions cited to me establish that the supposed rule is, or was during the 20th century, part of the common law of the United Kingdom.
In Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9 Barwick CJ repeated his observation in Cooper v Southern Portland Cement Ltd and said (at 94): Where this Court has not spoken, [State courts] may regard themselves as bound by an apt decision of the Privy Council. However, if an appeal is brought to this Court from a decision of a State court which has followed a decision of the Privy Council which this Court is not prepared to accept as properly expressing the relevant law, this Court will so decide and the State court, and State courts generally, will, in my opinion, thereafter be bound by the decision of this Court. See also the judgments of Gibbs and Mason JJ (as their Honours then were) (at 119 and 135, respectively).
In Mawji v The Queen the Privy Council said (at 135): Their Lordships accept the submission 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.
The continued operation of the fiction in relation to criminal conspiracy, and hence the existence of the rule, was assumed by their Lordships. The Crown did not dispute it. In their advice the Privy Council therefore gave no consideration to whether the rule could be supported as still current, in 1957, in the common law of the United Kingdom or of Commonwealth nations. I therefore do not consider that I am bound to accept Hawkins' putative rule upon the basis of that case. The appeal was from a decision of the Court of Appeal for Eastern Africa and arose out of a criminal prosecution in Tanganyika. The ratio of the decision concerned only whether the assumed rule would operate with respect to a marriage which was potentially polygamous.
Just as the common law for Australia is not necessarily the same as that for the United Kingdom, so also it is not necessarily the same as that for New Zealand or Canada. The majority decisions in R v McKechie and Kowbel v The Queen are entitled to respect and I have considered them carefully but they are not binding on me. The reasons in those cases do not state any support or justification for the rule beyond the matters I have already addressed.

Statutory treatment of the putative rule

It was submitted on behalf of the accused that confirmation of the authority of the rule may be found in its enactment by the Tasmanian Parliament in s 297(2) of Schedule 1 to the Criminal Code Act 1924 (Tas). Similar reliance was placed on s 339 of the Crimes Act 1958 (Vic), as referred to at [52]. In New South Wales s 580D of the Crimes Act 1900 (NSW) was inserted in these terms in 1998: Any common law rule that a husband and wife cannot be found guilty of conspiracy together is abolished.
This is by no means a complete survey of statutory inclusions or exclusions of the putative rule in the States and Territories. I do not take any of the decisions of the legislatures, to adopt, abolish or modify the putative rule, as any support for its currency, at any time, in the common law of Australia. Provisions may be introduced or repealed by legislatures upon misapprehensions regarding the state of the common law or for more abundant caution with respect to an assumed common law position.

Omission of any such common law rule from s 11.5 of the Criminal Code

Chapter 2 of the Criminal Code entitled "General principles of criminal responsibility", commences with s 2.1 as follows: 2.1 Purpose The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
Within Chapter 2, Part 2.4 is entitled "Extensions of criminal responsibility" and includes s 11.5, relevant extracts of which are as follows: 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, commits 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. (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.
As a matter of ordinary English usage the words "with another person" in s 11.5(1) would include cases of a male accused and his wife conspiring with each other. A person is, in ordinary English, nonetheless "another person" for being the spouse of a first mentioned person. The Dictionary at the end of the Code leaves the meaning of "person" at large because it does no more than include a Commonwealth authority within the definition. Section 2C(1) of the Acts Interpretation Act does not contract the meaning of the word. It provides that a "person" includes "a body politic or corporate as well as an individual". A spouse is, of course, an individual.
In R v LK [2010] HCA 17 the High Court considered a prosecution for conspiracy to commit money laundering offences, the substantive offence being one which would be committed if the perpetrator was reckless as to whether moneys dealt with were proceeds of crime. The question was whether proof of a conspiracy to commit this crime required proof that the conspirators knew the subject moneys were proceeds of crime. In concluding that the Crown did have to prove the conspirators' knowledge of this fact, being a fact essential to the offence they allegedly agreed to commit, the Court drew upon what is embraced in the concept of conspiring in the common law.
French CJ said at [72]: [Spigelman CJ in the court below] proceeded correctly on the basis that the Code imported the common law concept of conspiracy. So a person cannot enter into a conspiracy under the Code without knowing the facts that make the agreed conduct unlawful.
Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [97] (citations omitted): The words "conspires", "conspiracy" and "overt act" each had an established meaning in the criminal law at the time of the enactment of the Code. None is defined within the Code. The principle that the appellant calls in aid, that a code should be construed according to its natural meaning and without any presumption that it was intended to do no more than to re-state the existing law, is qualified with respect to the adoption in a code of a word or expression having an established meaning under the pre-existing law.
Their Honours adopted the following statement of Brennan J in Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29 at 30-31 (citations omitted) as also applicable to interpretation of the Criminal Code: It is erroneous to approach the Code [the Criminal Code (Tas)] with the presumption that it was intended to do no more than restate the existing law but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law including decisions subsequent to the Code's enactment. The meaning of the words and phrases to be found in a Code is controlled by the context in which they are found but when the context does not exclude the common law principles which particular words and phrases impliedly import, reference to those common law principles is both permissible and required.
In R v LK Gummow, Hayne, Crennan, Kiefel and Bell JJ held at [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 modification is to be accepted. Contrary to the appellant's written submission it involves no departure from principle. These are words that had an established meaning within the criminal law at the time the Code was enacted. Their use, without definition, in the statement of the Code offence was intended to be understood by reference to that legal meaning.
R v LK is a decision about the way the common law informs the meaning of "conspires" and "conspiracy". In Ansari v The Queen (2010) 241 CLR 299 at 318; [2010] HCA 18 the plurality of the High Court applied R v LK and said that use of the term "conspiracy" in s 11.5 is "to be understood by reference to the common law subject to express modification under s 11.5". It does not follow that a common law rule about spousal immunity from prosecution for conspiracy, assuming such a rule was part of the common law of Australia in 1995, informs the meaning of either the word "conspiracy" or the phrase "with another person" in s 11.5.
The putative common law rule is an exception to the otherwise complete generality of criminal liability of persons who conspire with one another to commit an offence. Where s 11.5 has enacted that the crime of conspiracy is committed by "a person who conspires with another person", far from importing the putative exception under a conventional term which has acquired a particular meaning in the common law, the section has omitted the exception by describing the persons between whom a conspiracy may be made in ordinary English language of the widest general application.
In R v Won & Singh it was held (at [42]) that in the 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". I respectfully do not agree that Hawkins' putative rule is embedded in the common law concept of "conspiracy" so as to have been carried into s 11.5 by the usage of that term. Even assuming the rule, I do not see the negativing of a marriage relationship as an element of the offence. Rather, the supposed rule is at best an exception or immunity from criminal liability for conspiracy. If it was to be part of the law encoded by s 11.5 it would need to have been stated.
Pursuant to s 15AB of the Acts Interpretation Act, material not forming part of the Criminal Code may be considered in order to confirm that the meaning of "with any other person" in s 11.5 is the ordinary meaning conveyed by the text. Consideration of extraneous material is not confined to cases of ambiguity. The Criminal Code was drafted by a Model Criminal Code Officers Committee. The Committee issued a final report in December 1992 which includes explanation of what was intended to be achieved by the draft. It has been recognised in a number of cases, including R v LK, that it is appropriate to have regard to the Committee's report when interpreting the Code.
Section 11.5 substantially follows clause 405.1 of the draft contained in the Committee's report. Part of the Committee's commentary on that clause is in the following terms (at 103 of the report): 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 v The Queen [1957] AC 126; Kowbel v The Queen [1954] SCR 498, and discussion by the Gibbs Committee at paragraph 39.3. Some Griffith codes are also outdated on this issue: see s 33 Queensland Code (recommended for repeal by O'Regan, page 5), and s 297(2) Tasmanian Code, both taking the common law position.
It is quite clear from this that the Committee considered their drafting of clause 405.1, which was substantially adopted in s 11.5, had the effect of omitting the putative common law rule from the codification of Commonwealth criminal law. The Committee incorporated in the Code some express modifications to the common law of criminal conspiracy, for example in subs (2)(c). The absence of any explicit statement in s 11.5 that the putative immunity of spouses was abolished does not indicate that the Committee meant to retain it. The report makes it apparent that they thought omission was sufficient.

Conclusion

In the common law of Australia there is no rule that a husband and wife cannot be guilty of conspiring with each other alone. If, contrary to this understanding, there did exist such a rule, it was not incorporated in the codification of the law of criminal conspiracy in s 11.5 of the Criminal Code.
It is for these reasons that on 31 August 2018 I dismissed the accused's application for a permanent stay of the conspiracy count with which they are charged.

Amendments 11 September 2018 - typographical error in [56] 13 September 2018 - typographical errors in [20], [37], [42], [46], [56], [69], [71], [74] 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: 13 September 2018

Criminal Code Act 1924(Tas)

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