Namoa v R [2020] NSWCCA 62

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Namoa v R [2020] NSWCCA 62 Hearing dates: 21 February 2020 Date of orders: 06 April 2020 Decision date: 06 April 2020 Before: Payne JA at [1]; Johnson J at [88]; Davies J at [89]. Decision: (1) Leave to appeal granted on ground 1; (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against conviction – fresh evidence – where neither applicant nor co-conspirator gave evidence at trial – where co-conspirator gave evidence at sentence that he only claimed to be preparing to carry out a terrorist attack to manipulate applicant into marrying him – whether evidence given by co-conspirator at sentence was fresh evidence – whether fresh evidence gave rise to miscarriage of justice

EVIDENCE – privileges – immunity – immunity in crime for conspiracy between husband and wife – where applicant and co-conspirator were married during timeframe of conspiracy – whether at the time immediately prior to the introduction of the Criminal Code Act 1995 (Cth) the common law of Australia recognised an immunity from prosecution for conspiracy for a husband and wife – whether the Criminal Code, s 11.5, inconsistent with any common law immunity Legislation Cited: Crimes Act 1900 (NSW), s 580D Criminal Appeal Act 1912 (NSW), s 6 Criminal Law Act 1977 (UK) Family Law Act 1975 (Cth) Schedule to the Criminal Code Act 1995 (Cth), ss 11.5, 101.1, 101.2, 101.3, 101.6 Cases Cited: Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Kowbel v The Queen [1954] SCR 498 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Mawji v The Queen [1957] AC 126 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496 Midland Bank Trust Co Ltd v Green (No 3) [1982] Ch 529 PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 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 R v Byast [1999] 2 Qd R 384; [1997] QCA 276 R v L (1991) 174 CLR 379; [1991] HCA 48 R v LK (2010) 241 CLR 177; [2010] HCA 17 R v McKechie [1926] NZLR 1 R v R [1992] 1 AC 599 R v Won & Singh [2012] SADC 177 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Texts Cited: Criminal Law Officers Committee of the Standing Committee of the Attorneys-General, Final Report Chapter 2 General Principles of Criminal Responsibility (December 1992) Glanville Williams, "The Legal Unity of Husband and Wife" (1947) 10 Modern Law Review 16 Hawkins, Pleas of the Crown 1716-1721 Vol 1 (1973, Professional Books Ltd) Leeming, The Statutory Foundations of Negligence (2019, The Federation Press) NSW Law Reform Commission, Complicity, Report No 129 (2010) Sir Matthew Hale, The History of the Pleas of the Crown (1736) Winfield, History of Conspiracy and Abuse of Legal Procedure (1982, Cambridge University Press) Category: Principal judgment Parties: Alo-Bridget Namoa (Applicant) Commonwealth 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)