Spouses are not a single legal personality in the crime
The High Court has clarified the interpretation of section 11.5(1) of the Criminal Code (Cth), which creates the statutory offence of conspiracy, when it ruled that married couples can be charged with the crime.
In a 14 April decision regarding Alo-Bridget Namoa v The Queen (2021), the court upheld the decision of the Court of Criminal Appeal of the NSW Supreme Court (CCA) when it ruled that the offence applies to spouses “who agree between themselves and no other person, to commit an offence against a law of the Commonwealth.”
On 23 July 2018, the Crown had charged Namoa and her husband with conspiring to do acts in preparation for a terrorist act contrary to sections 11.5(1) and 101.6(1) of the Criminal Code. Section 11.5(1) states that conspiracy is committed when “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 spouses applied for an order permanently staying the charge of conspiracy on 31 August 2018 on the grounds that they were married to each other at the time of the alleged crime. Consequently, “conspiracy could not be committed by husband and wife alone” as per a common law rule indicating that a married couple is one person in law and therefore legally incapable of committing the crime.
The trial judge rejected the application.
The NSW Supreme Court convicted Namoa that year following a trial by jury. She then filed an appeal with the CCA. On 6 April 2020, the CCA held that the language of the Code was clear. A husband and wife are each a “person,” as stated under the law; thus, they can be guilty of conspiring with each other.
Namoa appealed to the High Court by grant of special leave, arguing that the common law rule affected the meanings of “conspires” and “conspiracy” in section 11.5.
The High Court did not accept the argument and upheld the CCA’s decision, ruling that section 11.5(1) of the Code is not affected by any common law rule. The court explained that regardless of historical position, there is no longer any principle in Australian common law respecting the single legal personality of spouses. Thus, if spouses agree between themselves and no other person to commit an offence against a law of the Commonwealth, they can be charged with conspiracy.
