R v Bayda; R v Namoa (No 3) [2018] NSWSC 1381

R v Bayda; R v Namoa (No 3) [2018] NSWSC 1381

In the common law of Australia there is no rule that a husband and wife cannot be guilty of conspiring with each other alone. The historical rule stated by Hawkins rested on the obsolete fiction that husband and wife were one legal person and that a married woman lacked independent legal capacity; that foundation has disappeared from Australian law. Even if such a rule had existed, it was an immunity or exception rather than an ingredient of conspiracy and was not incorporated into s 11.5 of the Criminal Code (Cth), whose ordinary language applies to a person who conspires with another person. Accordingly, the accused's asserted marriage did not provide a basis for a permanent stay.

Jurisdiction
Australia
Judgment Date
10 September 2018
Procedural Posture
Criminal Proceeding on Charge of Conspiracy to Do Acts in Preparation for or Planning a Terrorist Act / Application by the Accused for a Permanent Stay of Proceedings
Outcome
The application by the accused for a permanent stay of proceedings on the charge of conspiracy is dismissed.
Legal Topics
['conspiracy' 'terrorism Offences' 'spousal Immunity' 'marriage Solemnisation' 'permanent Stay of Proceedings' 'criminal Code (cth) S 11.5' 'criminal Code (cth) S 101.6']
['criminal Law' 'family Law'] ['conspiracy' 'terrorism Offences' 'spousal Immunity' 'marriage Solemnisation' 'permanent Stay of Proceedings' 'criminal Code (cth) S 11.5' 'criminal Code (cth) S 101.6']

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Procedural Posture

Criminal Proceeding on Charge of Conspiracy to Do Acts in Preparation for or Planning a Terrorist Act / Application by the Accused for a Permanent Stay of Proceedings

Legal Issues

  1. 1 ['Whether a husband and wife are immune at common law in Australia from being charged with conspiracy with each other alone.' 'Whether any common law spousal immunity from conspiracy was incorporated into s 11.5 of the Criminal Code (Cth).' "Whether the accused's alleged Islamic marriage ceremony on 30 December 2015 required a permanent stay of the conspiracy charge." 'Whether the proposed substantive charge under s 101.6(1) was bad for latent duplicity unless the Crown elected among the particularised acts.']

Ratio Decidendi

In the common law of Australia there is no rule that a husband and wife cannot be guilty of conspiring with each other alone. The historical rule stated by Hawkins rested on the obsolete fiction that husband and wife were one legal person and that a married woman lacked independent legal capacity; that foundation has disappeared from Australian law. Even if such a rule had existed, it was an immunity or exception rather than an ingredient of conspiracy and was not incorporated into s 11.5 of the Criminal Code (Cth), whose ordinary language applies to a person who conspires with another person. Accordingly, the accused's asserted marriage did not provide a basis for a permanent stay.

Court Disposition

The application by the accused for a permanent stay of proceedings on the charge of conspiracy is dismissed.

Orders

  • ['The application by the accused for a permanent stay of proceedings on the charge of conspiracy is dismissed.']