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Supreme Court 10 September 2018

R v Bayda; R v Namoa (No 3)

[2018] NSWSC 1381

Public order & justice offences
CRIMINAL LAW GENERAL MATTERS ANCILLARY LIABILITY CONSPIRACY MARRIAGE VALIDITY

Citation: R v Bayda; R v Namoa (No 3) [2018] NSWSC 1381
Court: Supreme Court of New South Wales
Date: 10 September 2018
Judge(s): Fagan J

Background

Two accused, a married couple, were charged jointly on an indictment alleging conspiracy to do acts in preparation for, or planning, a terrorist act, contrary to s 101.6 of the Criminal Code (Cth). The alleged conspiracy took place over approximately six weeks between December 2015 and January 2016 in Sydney. The particulars described a range of conduct including downloading extremist material, viewing instructions on killing non-Muslims, purchasing knives, and the wife encouraging the husband to carry out a terrorist attack.

Shortly before trial, the Crown indicated it wished to substitute the conspiracy charge with a joint substantive charge under s 101.6(1) of the Criminal Code. The defence objected that the proposed substantive charge was duplicitous because it bundled multiple distinct acts into a single count without sufficient unifying connection. Separately, both accused then applied for a permanent stay of the conspiracy count on the basis that, as husband and wife, they were immune from a charge of conspiracy between themselves alone.

Fagan J dismissed the application for a permanent stay on 31 August 2018 and published his reasons on 10 September 2018. The judgment also addresses the duplicity issue raised in relation to the proposed substantive charge.

  • Whether, at common law in Australia, a husband and wife are immune from a charge of criminal conspiracy where they are the only two alleged conspirators
  • Whether any such spousal immunity was incorporated into, or preserved by, s 11.5 of the Criminal Code (Cth)
  • Whether the proposed substantive charge under s 101.6(1) of the Criminal Code was defective for latent duplicity, given the breadth and diversity of the particularised acts

Decision

Spousal immunity from conspiracy

Fagan J held that Australian common law does not recognise a rule that a husband and wife cannot be guilty of conspiring with each other alone. His Honour traced the historical basis of the putative immunity to the now-discredited doctrine that husband and wife were one legal person in marriage. The High Court's decision in PGA v The Queen [2012] HCA 21 confirmed that the common law of Australia is not necessarily static and can be understood to have developed in keeping with social and legal change. His Honour concluded that no such spousal immunity rule formed part of Australian common law.

His Honour further held that, even if such a rule had existed at common law, it was not incorporated into s 11.5 of the Criminal Code. The Model Criminal Code Officers Committee, in its December 1992 report, expressly addressed spousal immunity and made clear that the draft provision deliberately excluded it, regarding the immunity as outdated. The absence of any explicit mention of spouses in s 11.5 was, on the Committee's own account, intentional omission rather than preservation.

Latent duplicity in the proposed substantive charge

Fagan J held that a charge under s 101.6(1) of the Criminal Code, which uses the words "does any act", cannot without more sweep in a diverse series of acts spanning weeks and treat them as a single offence. Multiple acts may be charged in a single count only where there is sufficient connection between them, whether through temporal proximity, similarity of character, or a unifying specific criminal purpose. Because the Crown did not allege any specific planned terrorist act that could serve as a unifying purpose, and because the particularised acts were diverse in type and spread over six weeks, the court required the Crown to elect amongst its particulars to narrow the case to a scope constituting a single contravention. The court observed that the conspiracy charge did not attract the same difficulty, since the alleged overt acts could more readily be characterised as acts in furtherance of one ongoing agreement.

Orders Made

• On 31 August 2018, the accused's application for a permanent stay of the conspiracy count was dismissed.

Key Takeaways

  • Australian common law does not include a spousal immunity rule that prevents a husband and wife from being charged with criminal conspiracy where they are the only alleged conspirators. Fagan J declined to recognise any such rule as part of Australian law.

  • Under s 11.5 of the Criminal Code (Cth), no spousal immunity from conspiracy is preserved. The Model Criminal Code Officers Committee deliberately omitted any such protection, viewing it as outdated, and the court treated that omission as determinative.

  • A substantive charge under s 101.6(1) of the Criminal Code (doing "any act" in preparation for or planning a terrorist act) cannot aggregate a broad range of diverse acts over an extended period into a single count unless those acts share sufficient temporal proximity, similarity of character, or a unifying specific terrorist purpose. Where none of these connecting features is present, the charge may be duplicitous.

  • Where a charge is defective for latent duplicity, the appropriate remedy is to require the Crown to make an election amongst its particulars, rather than to quash the indictment entirely: Johnson v Miller (1937) 59 CLR 467.

  • The conspiracy charge, by contrast, was found to be better suited to capturing the range of alleged conduct, since diverse overt acts committed over a period can more readily be characterised as acts in furtherance of a single ongoing agreement.

Legislation and Cases Referenced

Legislation

  • Criminal Code Act 1995 (Cth), ss 11.5, 101.4(1), 101.5(1), 101.6(1)
  • Acts Interpretation Act 1901 (Cth), s 23(b)
  • Marriage Act 1961 (Cth), Pt IV Div 1
  • Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
  • Crimes Act 1900 (NSW)
  • Evidence Act 1995 (NSW)

Cases

  • PGA v The Queen [2012] HCA 21
  • R v LK [2010] HCA 17
  • Ansari v The Queen (2010) 241 CLR 299
  • Director of Public Prosecutions v Merriman [1973] AC 584
  • Mawji v The Queen [1957] AC 126
  • Kowbel v The Queen [1954] 4 DLR 337
  • Johnson v Miller (1937) 59 CLR 467
  • Mark Little (a pseudonym) v R (2015) 44 VR 816
  • R v Moore (2015) 91 NSWLR 276
  • B v R [2008] NSWCCA 85
  • Boughey v The Queen (1986) 161 CLR 10
  • Midland Bank Trust Co Ltd v Green (No 3) [1979] 1 Ch 496; [1982] 1 Ch 529
  • R v Smith [1995] 1 VR 10
  • R v McKechie [1926] NZLR 1