In Namoa v The Queen [2021] HCA 13, April 14, 2021, the accused, who were spouses, were convicted of the offence of conspiring to do acts in preparation for a terrorist act contrary to sections 11.5(1) and 101.6(1) of the Criminal Code. On appeal to the High Court of Australia, they argued that they should have been acquitted because at common law the offence of conspiracy cannot be committed by “spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth” (at paragraph 7). In Mawji v The Queen, [1957] AC 126, the Privy Council concluded that the “words ‘conspires’ and ‘conspiracy’ in English criminal law are not applicable to husband and wife alone”.
The Statutory Framework:
In Canada, section 465(1)(c) of the Criminal Code indicates that “every one who conspires with any one to commit an indictable offence…is guilty of an indictable offence”. In Australia, section 11.5(1) of the Criminal Code, stated at the time of the offence that:
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, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
The High Court:
The High Court referred to the decision of the Supreme Court of Canada in R. v. Kowbel, [1954] SCR 498, in which the Court concluded that the words “every one” did “not include husbands and wives because they lacked capacity to conspire on the basis of a common law defence ‘because judicially speaking they form but one person’”(at paragraph 19).
In dismissing the appeal, the High Court concluded that “[w]hatever may have been the historical position, there is no longer any principle in Australian common law respecting the single legal personality of spouses” and thus, “the statutory offence of conspiracy in s 11.5(1) applies to spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth. It is unnecessary to consider whether the common law includes or included at any relevant time a rule by virtue of which the common law of conspiracy does not apply to spouses” (at paragraphs 13 and 34).
