Case Law Assignment - Final Assignment for LLB101 PDF

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Answers for the final assignment in LLB101 which is the case law assignment. Meets the CRA and the word count....

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CASE NOTE: Namoa v The Queen [2021] HCA 13

Material Facts

The appellant, Alo-Bridget Namoa, was found guilty in conspiring to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) (“the Code”).1 The offence occurred between 8 December 2015 and 25 January 2016.2 Prior to the trial, an application for permanent stay had been rejected by the trial judge.3 The application was rejected because Alo-Bridget Namoa and her co-conspirator were married and as husband and wife, could not be guilty of conspiracy under the Code.4

The Court of Criminal Appeal of the Supreme Court of New South Wales concluded the AloBridget Namoa and her co-conspirator was guilty of conspiring with each other within the meaning of s 11.5.5 Therefore, s 11.5 of the Code applied to the appellant and the appeal must be dismissed.6

Issues Can the appellant appeal that there is a common law rule that spouses alone cannot conspire because the rule affects the meaning of “conspires” and “conspiracy” in s 11.5 of the Code?7

Decision and Reasoning

The Majority Judgment Judges Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ collaborated to deliver a joint judgement. The unanimous decision was made to dismiss the appeal.8

1 Namoa v The Queen [2021] HCA 13, [7]. 2 Ibid. 3 Ibid. 4 Ibid. 5 Ibid [9]. 6 Ibid. 7 Ibid [8]. 8 Ibid [9].

The judges maintained the interpretation of the statutory code and its meaning which was intended to do no more than restate the common law.9 The common law cannot be invoked in the interpretation of a code for the purpose of creating an ambiguity.10 The judges agreed with Judge Spigelman CJ’s conclusion from the R v LK case.11 Spigelman CJ concluded that the words ‘conspires’ and ‘conspiracy’ in ss11.5(1) in the Code had an established meaning within the criminal law at the time the Code was enacted.

Furthermore, the senior counsel for the appellant had made a proper acknowledgement that the common law rule which is being contended cannot depend upon any proposition that husband and wife form a single person.12

Additionally, in R v LK, the meaning of “conspires” and “conspiracy” in s 11.5(1) were further explained that the meaning of ‘conspiring’ is that a person entered into an agreement with one or more other persons and that the person and at least one other party intended to commit conspiracy.13

His Honours had also referred to another case by the New Zealand Court of Appeal, R v McKechie.14 The court held, by majority, that there should be two persons to constitute a conspiracy.15 The majority reasoned that:

At common law, as regards a charge of conspiracy, husband and wife are not two persons but only one, and there is no indication that that basic rule is reversed.16

However, another overseas case disagreed which was the Canadian case of Kowbel v The Queen.17 In that case, Kerwin and Taschereau JJ along with Estey and Cartwright JJ concluded that husbands and wives were not included in the definition of “every one”

9 Ibid [11]. 10 Mellifont v Attorney-General (Q) (1991) 173 CLR 289. 11 Ibid [12]; R v LK (2010) 241 CLR 177. 12 Namoa v The Queen [2021] HCA 13 [13]. 13 Namoa v The Queen [2021] HCA 13, [16]; R v LK (2010) 241 CLR 177. 14 Namoa v The Queen [2021] HCA 13, [18]; R v McKechie [1926] NZLR 1. 15 R v McKechie [1926] NZLR 1. 16 Ibid [12]. 17 Namoa v The Queen [2021] HCA 13, [19].

because they lacked capacity to conspire.18 This was concluded on the basis of a common law defence: Because judicially speaking they form but one person.19

In Mawji v The Queen, the Privy Council had also concluded that husband and wife cannot be guilty of conspiracy.20 Their Lordships argued that husband and wife cannot alone be found guilty of conspiracy because they are considered as one person under the eyes of the law and are presumed to have but one will.21 Furthermore, their Lordships held that:

Their Lordships are of opinion that the rule is incorporated into the provisions of section 110(a). The words 'conspires' and 'conspiracy' in English criminal law are not applicable to husband and wife alone; the words 'other person' in section 110(a), if English criminal law is applied to their 'interpretation' or 'meaning,' cannot in this context include a spouse.22

Finally, His Honours disagreed with the conclusion of the case the appellant sought to rely on which was Midland Bank Trust Co Ltd v Green [No 3].23 The Judge of the case, Oliver J, found that the criminal conspiracy requires an agreement between the accused and some person than his or her spouse.24 His Honour further concluded that:

There is no good logical or historical reason for slavishly applying in the law of tort, simply because the tort is called the 'tort of conspiracy,' the primitive and inaccurate maxim that spouses are one person, so as to confer upon them an immunity from civil liability not accorded to the unmarried.25

18 Kowbel v The Queen [1954] SCR 498 at 499 per Kerwin and Taschereau JJ, 503 per Estey J, 505 per Cartwright J. 19 Namoa v The Queen [2021] HCA 13, [19], quoting Kowbel v The Queen [1954] SCR 498. 20 Namoa v The Queen [2021] HCA 13, [20]. 21 Ibid. 22 Namoa v The Queen [2021] HCA 13, [23], quoting Mawji v The Queen [1957] AC 126. 23 Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529. 24 Midland Bank Trust Co Ltd v Green [No 3] [1979], [520]. 25 Namoa v The Queen [2021] HCA 13, [26], quoting Midland Bank Trust Co Ltd v Green [No 3] [1979], [520].

While the appellant sought to rely upon s 11.5(3) which she observed did not address explicitly the position of spouses, the respondent accepted but ultimately dismissed the appeal.26 Citing Mawji and Midland Bank [No 3]:

Conspiracies to commit offences against Commonwealth laws are of a kind likely to be made between spouses.27

Therefore, His Honours concluded that the statutory offence of conspiracy in s 11.5(1) applies to the spouses who agree between themselves, and no other person, to commit conspiracy.28

Overall Result of the Appeal

The New South Wales Supreme Court of Criminal Appeal unanimously dismissed the appeal of Alo-Bridget Namoa and her co-conspirator.

Process in Finding A Reported Decision Firstly, find the paragraph in the case, Namoa v The Queen [2021] HCA 13, that states the rejection of Namoa’s application for permanent stay. Secondly, identify the footnote and the corresponding relevant case. Thirdly, enter the case name and year into a legal case database such as CaseBase (LexisNexis).

Federal Legislation

The New South Wales Supreme Court heard the trial. s 71.16 of the Criminal Code (Cth) gives the New South Wales Supreme Court jurisdiction to do so.29

Determination by Trial Judge That Previous Case Were Not Binding 26 Namoa v The Queen [2021] HCA 13, [28]. 27 Namoa v The Queen [2021] HCA 13, [30], quoting Midland Bank Trust Co Ltd v Green [No 3] [1979], [520]. 28 Namoa v The Queen [2021] HCA 13, [34]. 29 Criminal Code (Cth) s 71.16

R v McKechie Is R v McKechie binding? A court will be bound by the decision of a superior court in the same hierarchy.30 R v McKechie was decided in a superior court to R v Namoa [No 3]. However R v McKechie was decided in New Zealand31. Therefore, R v McKechie is not binding.

Kowbel v The Queen Is Kowbel v The Queen binding? A court will be bound by the decision of a superior court in the same hierarchy.32 Kowbel v The Queen was decided in the same court hierarchy as R v Namoa [No 3] and in Canada.33 Therefore, Kowbel v The Queen is not binding.

Mawji v The Queen Is Mawji v The Queen binding? A court will be bound by the decision of a superior court in the same hierarchy.34 Mawji v The Queen was decided in a court that is not superior to the court in R v Namoa [No 3].35 Therefore, Mawji v The Queen is not binding.

Byast v The Queen Is Byast v The Queen binding? A court will be bound by the decision of a superior court in the same hierarchy.36 Byast v The Queen was decided in a court that is superior to the court in R v Namoa [No 3].37 However Byast v The Queen was decided in Queensland.38 Therefore, Byast v The Queen is not binding.

R v Won & Singh Is R v Won & Singh binding? A court will be bound by the decision of a superior court in the same hierarchy.39 R v Won & Singh was decided in a court not superior to the court in R v Namoa [No 3] and in South Australia.40 There R v Won & Singh is not binding. 30 Broome v Cassell & Co Ltd [1971] 2 QB 354. 31 R v Namoa [No 3] [2018] NSWSC 1381, [31(3)]. 32 Ibid (n 30). 33 R v Namoa [No 3] [2018] NSWSC 1381, [31(4)]. 34 Ibid (n 30). 35 R v Namoa [No 3] [2018] NSWSC 1381, [31(5)]. 36 Ibid (n 30). 37 R v Namoa [No 3] [2018] NSWSC 1381, [31(8)]. 38 Ibid. 39 Ibid (n 30). 40 R v Namoa [No 3] [2018] NSWSC 1381, [31(9)].

Therefore, His Honour is not bound by any of the cases presented.

Date Application Was Heard and Which Justice Heard It The application was heard on 13th October 2020 by Justice Nettle J and Edelman J.41

1267 words.

41 Namoa v R [2020] HCATrans 163....