Namoa v. The Queen

Lower Court Judgment

06/04/2020 Supreme Court of New South Wales (Court of Criminal Appeal) (Payne JA, Johnson and Davies JJ)

[2020] NSWCCA 62

Catchwords

Criminal law – Conspiracy between married persons – Relationship between common law and Schedule (“Criminal Code”) to Criminal Code Act 1995 (Cth) – Where applicant tried jointly with another on one count of conspiring to do acts in preparation for terrorist act or acts, contrary to ss 11.5 and 101.6 of Criminal Code – Where prior to trial, trial judge rejected application for permanent stay on basis that applicant and co-accused were married – Where applicant and co-accused convicted – Where NSW Court of Criminal Appeal (“CCA”) dismissed appeal against conviction – Whether immediately prior to enactment of Criminal Code, it was part of common law of Australia that married persons could not commit criminal conspiracy – If so, whether that principle remains part of common law – Whether CCA entitled to depart from Privy Council decisions on principles of common law which preceded passage of Australia Acts in 1986 – Whether Criminal Code expressly or impliedly ousts common law rule as to conspiracy between married persons.