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Court of Criminal Appeal 6 April 2020

Namoa v R

[2020] NSWCCA 62

Public order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION FRESH EVIDENCE WHERE NEITHER APPLICANT NOR CO CONSPIRATOR GAVE EVIDENCE AT TRIAL

Citation: Namoa v R [2020] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 6 April 2020
Judge(s): Payne JA (with Johnson J and Davies J agreeing)

Background

The appellant was convicted by a jury in October 2018 of conspiring to do acts in preparation for a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth). She was tried jointly with her co-conspirator, who was also convicted. The Crown's case rested on SMS messages exchanged between the two, a "farewell note" written by the appellant on the co-conspirator's phone, a knife and extremist flag found in the appellant's handbag, and digital files recovered from seized devices showing extensive links to violent extremism. Neither the appellant nor the co-conspirator gave evidence at trial.

The alleged conspiracy occurred between December 2015 and January 2016. The co-conspirator and the appellant had married on 30 December 2015, during the period covered by the conspiracy charge. The appellant was sentenced to 3 years and 9 months' imprisonment, and her non-parole period had already expired by the time of the appeal.

On sentence, the co-conspirator gave evidence for the first time that he had not intended to die in the planned New Year's Eve attack, and that he had sought to "manipulate" the appellant into believing the attack was more dangerous and significant than what he actually intended. The appellant brought this evidence forward on appeal as fresh evidence, and also challenged the trial judge's pre-trial ruling that no spousal immunity from conspiracy prosecution existed in Australian law.

  • Whether evidence given by the co-conspirator at the sentencing hearing (not the trial) constituted "fresh evidence" capable of grounding a miscarriage of justice.
  • Whether, if it was fresh evidence, that evidence gave rise to a significant possibility that the jury would have acquitted the appellant had it been available at trial.
  • Whether, at the time immediately before the introduction of the Criminal Code in 1995, Australian common law recognised an immunity from prosecution for conspiracy between a husband and wife where they were the only alleged conspirators.
  • Whether s 11.5 of the Criminal Code was inconsistent with any such common law immunity, effectively abrogating it.

Decision

Fresh evidence ground: The Court found that most of the co-conspirator's sentencing evidence was not "fresh" in the legal sense, as it could have been obtained and led at trial. The portion that did qualify as fresh was the co-conspirator's account that his communications were "deceptive" and that he had not planned to die in the New Year's Eve attack. The Court accepted that evidence was credible to that extent.

However, even treating that evidence as fresh, the Court found it did not give rise to a miscarriage of justice. The appellant's defence had focused narrowly on the New Year's Eve incident, while the broader body of evidence, including the extremist materials, messages, and farewell note, was sufficient on its own to support the jury's verdict. The co-conspirator's manipulation of the appellant's beliefs about the scale of the attack did not negate the fact that she had plainly agreed with him to prepare for a terrorist act as defined under the Code. There was no "significant possibility" that the jury, acting reasonably, would have acquitted her on the basis of the co-conspirator's sentencing evidence.

Spousal immunity ground: The Court confirmed that, strictly speaking, it was not necessary to decide this question in order to dispose of the appeal. Nonetheless, the Court held that the trial judge was correct: Australian common law had not recognised a spousal immunity from conspiracy prosecution at the time the Code was introduced in 1995. The Court applied the High Court's reasoning in PGA v The Queen (2012), which had addressed the evolving scope of common law rules in Australia, and declined to follow several older Commonwealth and overseas authorities that had recognised such an immunity.

On the statutory question, the Court held that the language of s 11.5 of the Code was sufficiently clear to demonstrate a parliamentary intention to exclude any such immunity. The section treats each conspirator as a "person" conspiring "with another person," language that plainly encompasses spouses. Reading the Code's complicity provisions as a whole, a construction that carved out an immunity for married conspirators would be incoherent.

Orders Made

  • Leave to appeal granted on ground 1
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that fresh evidence capable of grounding a miscarriage of justice must not merely be new material, but must create a significant possibility that the jury would have reached a different verdict had the evidence been available at trial.
  • A co-conspirator's evidence that he manipulated an appellant about the details of a planned attack did not undermine the conviction where other evidence independently demonstrated the appellant's knowing participation in preparing for a terrorist act.
  • Under the Criminal Code Act 1995 (Cth), a husband and wife are each a "person" within the meaning of s 11.5 and can be guilty of conspiring with each other, with the statutory language being sufficiently clear to exclude any suggested common law spousal immunity.
  • No common law immunity from conspiracy prosecution between spouses formed part of Australian law at the time the Code was enacted in 1995, applying the High Court's approach in PGA v The Queen; older English, New Zealand, Canadian, and Privy Council authorities recognising such an immunity were not followed.
  • Reading s 11.5 alongside other provisions in the Code's complicity division, such as s 11.2 on aiding and abetting, a construction that gave "person" a different meaning for spouses in conspiracy would produce an incoherent statutory scheme.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), Schedule, ss 11.5, 101.1, 101.2, 101.3, 101.6
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes Act 1900 (NSW), s 580D
- Family Law Act 1975 (Cth)
- Criminal Law Act 1977 (UK)

Cases:
- PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21
- Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- R v L (1991) 174 CLR 379; [1991] HCA 48
- R v LK (2010) 241 CLR 177; [2010] HCA 17
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
- R v Bayda; R v Namoa (No 3) [2018] NSWSC 1381; (2018) 274 A Crim R 1
- R v Bayda; R v Namoa (No 8) [2019] NSWSC 24
- Mawji v The Queen [1957] AC 126
- R v R [1992] 1 AC 599
- Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496; [1982] Ch 529
- R v McKechie [1926] NZLR 1
- Kowbel v The Queen [1954] SCR 498
- R v Byast [1999] 2 Qd R 384; [1997] QCA 276
- R v Won & Singh [2012] SADC 177