HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

ALO-BRIDGET NAMOA APPELLANT

AND

THE QUEEN RESPONDENT

Namoa v The Queen

[2021] HCA 13
Date of Hearing: 11 March 2021
Date of Judgment: 14 April 2021
S188/2020

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

G O'L Reynolds SC with R W Haddrick and D P Farinha for the appellant

(instructed by Zali Burrows at Law)

S J Free SC with T O Prince and B E M Anniwell for the respondent

(instructed by Commonwealth Director of Public Prosecutions)

Notice: This copy of the Court's Reasons for Judgment is subject

to formal revision prior to publication in the Commonwealth Law
Reports.
CATCHWORDS

Namoa v The Queen

Criminal law (Cth) – Conspiracy – Where s 11.5(1) of Criminal Code (Cth)

established offence of conspiracy – Where appellant charged with conspiring to
do acts in preparation for terrorist act contrary to ss 11.5(1) and 101.6(1) of
Criminal Code – Whether s 11.5 applies to spouses who agree between
themselves, and no other person, to commit offence against Commonwealth law
– Whether interpretation of s 11.5 of Criminal Code affected by any common law
rule that spouses alone cannot conspire – Whether references in s 11.5 of
Criminal Code to "person" and "another person" include two spouses – Whether
meaning of "conspires" and "conspiracy" in s 11.5 of Criminal Code incorporates
any common law rule that spouses alone cannot conspire.

Words and phrases – "another person", "common law rule", "conspiracy",

"conspires", "doctrine of unity", "person", "single legal personality of spouses".

Criminal Code (Cth), s 11.5.

1 KIEFEL CJ. I agree with Gleeson J.
 Gageler J

2.

1 GAGELER J. I agree with Gleeson J.

 Keane J

3.

2 KEANE J. I agree with Gleeson J.

 Gordon J

4.

3 GORDON J. I agree with Gleeson J.

 Edelman J

5.

4 EDELMAN J. I agree with Gleeson J.

 Steward J

6.

5 STEWARD J. I agree with Gleeson J.

 Gleeson J

7.

6 GLEESON J. This appeal concerns the interpretation of s 11.5(1) of the

Criminal Code (Cth) ("the Code"), which creates a statutory offence of
conspiracy, and whether that offence applies to spouses who agree between
themselves, and no other person, to commit an offence against a law of the
Commonwealth. The appellant was found guilty by a jury of conspiring to do
acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the
Code. The offence occurred between 8 December 2015 and 25 January 2016.
Prior to the trial, the trial judge rejected an application for a permanent stay
which had been made on the basis that the appellant and her co-conspirator
married on 30 December 2015 and, as husband and wife, could not be guilty of
conspiracy under the Code1.

7 The appellant contends that there is a common law rule that spouses alone
cannot conspire; and that this rule affects the meaning of "conspires" and
"conspiracy" in s 11.5 of the Code. Although the appellant referred to the rule as
an immunity from prosecution in the courts below 2, that characterisation was not
maintained in this Court.

8 For the following reasons, the proper interpretation of s 11.5(1) is not

affected by any such common law rule. The Court of Criminal Appeal of the
Supreme Court of New South Wales was correct to conclude that, on the clear
language of the Code, a husband and wife are each a "person" and can be guilty
of conspiring with each other within the meaning of s 11.53. Accordingly, s 11.5
of the Code applied to the appellant and the appeal must be dismissed.

9 At the relevant time, s 11.5 relevantly provided:

"Conspiracy

(1) 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.

Note: Penalty units are defined in section 4AA of the Crimes Act 1914.

1
R v Bayda [No 3] (2018) 274 A Crim R 1 at 18 [78]-[79] per Fagan J.
2
Namoa v Director of Public Prosecutions (2020) 282 A Crim R 362 at 368 [23],
376 [54] per Payne JA (Johnson J agreeing at 383 [88], Davies J agreeing at 383
[89]).
3
Namoa v Director of Public Prosecutions (2020) 282 A Crim R 362 at 383 [85]
per Payne JA (Johnson J agreeing at 383 [88], Davies J agreeing at 383 [89]).
Gleeson J

8.

(2) For the person to be guilty:

(a) the person must have entered into an agreement with one or
more other persons; and

(b) the person and at least one other party to the agreement must
have intended that an offence would be committed pursuant
to the agreement; and

(c) the person or at least one other party to the agreement must
have committed an overt act pursuant to the agreement.

...

(3) A person may be found guilty of conspiracy to commit an offence

even if:

(a) committing the offence is impossible; or

(b) the only other party to the agreement is a body corporate; or

(c) each other party to the agreement is at least one of the

following:

(i) a person who is not criminally responsible;

(ii) a person for whose benefit or protection the offence

exists; or

(d) subject to paragraph (4)(a), all other parties to the agreement

have been acquitted of the conspiracy.

(4) A person cannot be found guilty of conspiracy to commit an

offence if:

(a) all other parties to the agreement have been acquitted of the
conspiracy and a finding of guilt would be inconsistent with
their acquittal; or

(b) he or she is a person for whose benefit or protection the

offence exists.

..."
 Gleeson J

9.

Interpretation of the Code

10 The principles for interpreting a statutory code are well established. A

code is to be construed according to its natural meaning and without any
presumption that its language was intended to do no more than restate the
common law4. The common law cannot be used to supply the meaning of a word
used in a code except where the word has a well-established technical meaning
under the pre-existing law and the code uses that word without definition 5, or it
appears that the relevant provision in a code is ambiguous 6. The common law
cannot be invoked in the interpretation of a code for the purpose of creating an
ambiguity7.

11 R v LK holds that, subject to express statutory modification, the words

"conspires" and "conspiracy" in s 11.5 bear their common law meaning8. In that
case, the plurality said relevantly9:

"Spigelman CJ's conclusion that the words 'conspires' and

'conspiracy' in s 11.5(1) are to be understood as fixed by the common law
subject to express statutory modification is to be accepted. ... These are
words that had an established meaning within the criminal law at the time
the Code was enacted. Their use, without definition, in the statement of
the Code offence was intended to be understood by reference to that legal
meaning. On the hearing of the appeals senior counsel for the appellant
accepted so much."

4
Pickett v Western Australia (2020) 94 ALJR 629 at 635-636 [22]-[23] per
Kiefel CJ, Bell, Keane and Gordon JJ; 379 ALR 471 at 477, quoting Brennan v
The King (1936) 55 CLR 253 at 263 and Stuart v The Queen (1974) 134 CLR 426
at 437. See also Mellifont v Attorney- General (Q) (1991) 173 CLR 289 at 309 per
Mason CJ, Deane, Dawson, Gaudron and McHugh JJ.
5
R v LK (2010) 241 CLR 177 at 220 [97] per Gummow, Hayne, Crennan, Kiefel
and Bell JJ.
6
Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 309 per Mason CJ,
Deane, Dawson, Gaudron and McHugh JJ.
7
Mellifont v Attorney- General (Q) (1991) 173 CLR 289 at 309 per Mason CJ,
Deane, Dawson, Gaudron and McHugh JJ.
8
(2010) 241 CLR 177 at 224 [107] per Gummow, Hayne, Crennan, Kiefel and
Bell JJ. Affirmed in Agius v The Queen (2013) 248 CLR 601 at 615 [54] per
Gageler J.
9
R v LK (2010) 241 CLR 177 at 224 [107] per Gummow, Hayne, Crennan, Kiefel
and Bell JJ; see also at 231 [131].
 Gleeson J

10.

Spouses are separate "persons"

12 Whatever may have been the historical position, there is no longer any
principle in Australian common law respecting the single legal personality of
spouses10. Senior counsel for the appellant properly acknowledged that the
common law rule for which he contends cannot depend upon any proposition that
husband and wife form a single person.

13 On its face, s 11.5(1) refers to "[a] person who conspires with another
person". "Person" is defined in the Dictionary to the Code as follows:

"person includes a Commonwealth authority that is not a body corporate,

and another has a corresponding meaning.

Note: This definition supplements subsection 2C(1) of the Acts Interpretation Act 1901. That
subsection provides that person includes a body politic or corporate as well as an
individual."

14 The references in s 11.5 to a "person" and "another person" are apt to

include two spouses. The appellant did not contend otherwise.

Meaning of "conspires" and "conspiracy"

15 In R v LK, the plurality explained the meaning of "conspires" and

"conspiracy" in s 11.5(1) in the following passages11:

"Spigelman CJ's analysis, that the common law offence of

conspiracy requires that an accused person know the facts that make the
proposed act or acts unlawful, should be accepted as an accurate statement
of the law.

...

Section 11.5(1) makes it an offence to conspire with another person to

commit an offence punishable by imprisonment for more than twelve
months or by a fine of 200 penalty units or more (a non-trivial offence). It
reads naturally as the law creating the offence. It is by the adoption of the
word 'conspires', with its established legal meaning, that the drafters of the
Code chose to deal with questions that are not otherwise addressed in s
11.5. These may be taken to include the parties to the conspiracy and the

10
Magill v Magill (2006) 226 CLR 551 at 573 [55] per Gummow, Kirby and
Crennan JJ. See also Tooth & Co Ltd v Tillyer (1956) 95 CLR 605 at 615-616 per
Dixon CJ, Williams, Webb and Fullagar JJ.
11
(2010) 241 CLR 177 at 227 [114], 231 [131], 232 [133], 235 [141] per Gummow,
Hayne, Crennan, Kiefel and Bell JJ (footnotes omitted).
 Gleeson J

11.

sufficiency of their dealings to constitute the agreement. Section 11.5(1) is

the specification of a physical element of the offence, namely, conspiring
with another person to commit a non-trivial offence. Central to the
concept of conspiring is the agreement of the conspirators.

...

Paragraphs (a) and (b) of s 11.5(2) are epexegetical of what it is to

'conspire' with another person to commit an offence within the meaning of
s 11.5(1). Section 11.5(2)(b) looks to the time at which the agreement was
entered, making clear that for a person to 'conspire' under s 11.5(1) it is
necessary that he or she and at least one other party to the agreement 'must
have intended' that an offence be committed pursuant to it. Together
paras (a) and (b) clarify, first, the two points made in the first sentence of
the highlighted passage from the Gibbs Committee Report, extracted at
[105] above [concerning the mental element for the crime of conspiracy],
and, secondly, that the reach of the Code offence does not extend to an
agreement to which the only parties are a single accused person and an
agent provocateur. ...

At the trial of a person charged with conspiracy it is incumbent on the

prosecution to prove that he or she meant to conspire with another person
to commit the non-trivial offence particularised as being the object of the
conspiracy. In charging a jury as to the meaning of 'conspiring' with
another person, it is necessary to direct that the prosecution must establish
that the accused entered into an agreement with one or more other persons
and that he or she and at least one other party to the agreement intended
that the offence particularised as the object of the conspiracy be
committed pursuant to the agreement."

16 These passages say nothing about any common law rule relating to
spouses as an aspect of the common law meaning of "conspiracy". R v LK did not
address that issue and cannot be authority that the meaning of "conspires" and
"conspiracy" incorporates such a rule12. The passages reveal that the common law
meaning of "conspires" comprises entering into an agreement to perform the
actus reus of an offence with knowledge of facts that make the proposed acts
unlawful13. In context (including the relevant footnote14), the observation that the
drafters of the Code chose to address "the parties to the conspiracy and the
12
Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 at 1016 [28] per
Kiefel CJ, Bell, Keane and Gordon JJ; 372 ALR 555 at 562, citing Coleman v
Power (2004) 220 CLR 1 at 44-45 [79] per McHugh J and CSR Ltd v Eddy (2005)
226 CLR 1 at 11 [13] per Gleeson CJ, Gummow and Heydon JJ.
13
See also Agius v The Queen (2013) 248 CLR 601 at 616-617 [59] per Gageler J,
quoting Review of Commonwealth Criminal Law, Interim Report: Principles of
Criminal Responsibility and Other Matters (July 1990) at 361 [34.11].
 Gleeson J

12.

sufficiency of their dealings to constitute the agreement" by adoption of the word

"conspires" is not directed to the capacity of particular types of persons to
commit the offence.

17 The overseas case law upon which the appellant relied to contend that the
language of s 11.5 does not expressly oust the common law position does not
assist her case15 because of the different statutory contexts and the courts'
reliance upon the proposition, disavowed by the appellant as part of the common
law of Australia, that spouses may constitute a single person. In R v McKechie,
the New Zealand Court of Appeal held, by majority, that the relevant statute
authorised a common law defence to a statutory charge of conspiracy "in
accordance with the common law that there should be two persons to constitute a
conspiracy"16. The majority reasoned that "at common law, as regards a charge of
conspiracy, husband and wife are not two persons but only one, and there is no
indication that that basic rule is reversed"17.

18 In the Canadian case of Kowbel v The Queen, the relevant statutory

offence was to the effect that "every one is guilty of an indictable offence, who in
any case not otherwise provided for, conspires with any person to commit any
indictable offence"18. The words "every one" were defined to apply only to
persons in relation to such acts and things as they are capable of doing 19. Kerwin
and Taschereau JJ, with whom Estey and Cartwright JJ agreed, concluded that
"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"20.

14
The footnote states: "The agreement of the conspirators need not be attended by
any formalities: R v Orton [1922] VLR 469 at 473 per Cussen J; Gerakiteys (1984)
153 CLR 317. See also Orchard, '"Agreement" in Criminal Conspiracy – 1' [1974]
Criminal Law Review 297."
15
Director of Public Prosecutions v Blady [1912] 2 KB 89; R v Peel (The Times,
8 March 1922); R v McKechie [1926] NZLR 1; Kowbel v The Queen [1954] SCR
498; Mawji v The Queen [1957] AC 126; Midland Bank Trust Co Ltd v Green
[No 3] [1979] Ch 496; Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529;
R v Cheung Ka Fai [1995] 3 HKC 214.
16
[1926] NZLR 1 at 12 per Sim, Reed and Adams JJ.
17
R v McKechie [1926] NZLR 1 at 12 per Sim, Reed and Adams JJ.
18
[1954] SCR 498 at 499 per Kerwin and Taschereau JJ (emphasis in original).
19
Kowbel v The Queen [1954] SCR 498 at 500 per Kerwin and Taschereau JJ.
20
Kowbel v The Queen [1954] SCR 498 at 499 per Kerwin and Taschereau JJ, 503
per Estey J, 505 per Cartwright J.
 Gleeson J

13.

19 In Mawji v The Queen, the Privy Council concluded that the rule of
English criminal law that husband and wife cannot be guilty of conspiracy was
incorporated into the relevant statutory offence by a provision to the following
effect21:

"This Code shall be interpreted in accordance with the principles of legal

interpretation obtaining in England, and expressions used in it shall be
presumed ... except as may be otherwise expressly provided, to be used
with the meaning attaching to them in English criminal law and shall be
construed in accordance therewith."

20 The offence was in the following terms22:

"Any person commits a misdemeanour who conspires with any other

person to accuse any person falsely of any crime, or to do anything to
obstruct, prevent, pervert or defeat the course of justice."

21 Their Lordships identified a rule of English criminal law that23:

"A husband and wife cannot alone be found guilty of conspiracy, for they
are considered in law as one person, and are presumed to have but one
will."

22 Their Lordships accepted that the rule was "an example of the fiction that
husband and wife are regarded for certain purposes ... as in law one person" 24. In
construing the offence provision, their Lordships held25:

"Their Lordships are of opinion that the rule is incorporated into the
provisions of section 110(a). The words 'conspires' and 'conspiracy' in
English criminal law are not applicable to husband and wife alone; the
words 'other person' in section 110(a), if English criminal law is applied to
their 'interpretation' or 'meaning,' cannot in this context include a spouse."

23 Finally, the appellant sought to rely on Midland Bank Trust Co Ltd v

Green [No 3]26. In that case, the Court of Appeal of England and Wales held that

21
[1957] AC 126 at 133-134; Penal Code of Tanganyika, s 4.
22
Penal Code of Tanganyika, s 110(a).
23
Mawji v The Queen [1957] AC 126 at 134.
24
Mawji v The Queen [1957] AC 126 at 135.
25
Mawji v The Queen [1957] AC 126 at 134-135.
26
[1982] Ch 529.
 Gleeson J

14.

the "doctrine of unity" between husband and wife, which applied to the crime of
conspiracy, should not be applied to the modern tort of conspiracy27.

24 At first instance, Oliver J found that "a criminal conspiracy did and does
require, at common law, and as an essential ingredient of the offence, an
agreement between the accused and some person other than his or her spouse" 28.
His Honour stated that "the common law rule was and is that a husband and wife
cannot be convicted of the crime of conspiracy in circumstances in which they
are the only parties to the conspiracy alleged" 29. Ultimately, however, Oliver J
concluded that30:

"the continued existence of the rule, in relation to the crime of conspiracy

rests ... not upon a supposed inability to agree as a result of some fictional
unity, but upon a public policy which, for the preservation of the sanctity
of marriage, accords an immunity from prosecution to spouses who have
done no more than agree between themselves in circumstances which
would lay them open, if unmarried, to a charge of conspiracy." (emphasis
added)

25 His Honour further concluded that31:

"there is no good logical or historical reason for slavishly applying in the

law of tort, simply because the tort is called the 'tort of conspiracy,' the
primitive and inaccurate maxim that spouses are one person, so as to
confer upon them an immunity from civil liability not accorded to the
unmarried." (emphasis added)

26 On appeal, Oliver J's decision was upheld 32. The reasoning of the Court of
Appeal does not indicate that the common law meaning of "conspiracy"
incorporates a notion that spouses alone cannot "conspire" or be "conspirators".
In particular, Lord Denning MR identified as the appellant's argument that the
doctrine of unity between husband and wife is an established doctrine in English
law. One of the ramifications of that doctrine was said to be that husband and

27
Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 539-540 per
Lord Denning MR, 540-542 per Fox LJ, 542-543 per Sir George Baker.
28
Midland Bank Trust Co Ltd v Green [No 3] [1979] Ch 496 at 511.
29
Midland Bank Trust Co Ltd v Green [No 3] [1979] Ch 496 at 520.
30
Midland Bank Trust Co Ltd v Green [No 3] [1979] Ch 496 at 521.
31
Midland Bank Trust Co Ltd v Green [No 3] [1979] Ch 496 at 525.
32
Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 540 per
Lord Denning MR, 542 per Fox LJ, 542-543 per Sir George Baker.
 Gleeson J

15.

wife cannot be guilty as conspirators together 33. Lord Denning MR noted that

"[t]he crime of conspiracy is still based on an agreement to do an unlawful act
without more"34. Fox LJ distinguished between a "conspiracy" and the question
of whether a husband and wife can be convicted of the crime of conspiracy,
saying35:

"It is clear that a husband and wife cannot be convicted of the

crime of conspiracy if they are the only parties to the conspiracy alleged.
That has long been the law. It was confirmed by the Criminal Law Act
1977. The question is whether the same rule should be applied to the tort.
The crime and the tort shared the same definition: an agreement by two or
more persons to do an unlawful act or to do a lawful act by unlawful
means."

Sir George Baker identified the statutory exemption from liability for criminal
conspiracy as the expression of a "very limited rule" of the legal doctrine of unity
of husband and wife36.

27 While the explanations for the special position of spouses in relation to the
crime of conspiracy varied, in none of these cases was the court concerned with
the meaning of "conspiracy". It follows that, whether there is or was a rule of
Australian common law that there can be no criminal conspiracy if the only two
parties to the agreement are spouses, that rule is not incorporated into the offence
contained in s 11.5 of the Code by the words "conspires" and "conspiracy".

Contextual and extrinsic material

28 The appellant sought to rely upon s 11.5(3) in support of her construction

of s 11.5(1), observing that it does not address explicitly the position of spouses.
The respondent accepted that the legislature could have addressed the position of
spouses in s 11.5(3). However, as senior counsel for the respondent contended,
s 11.5(3) tells against an interpretation of "conspires" and "conspiracy" that
incorporates complicated rules as to which types of persons can commit the
offence created by s 11.5(1).

29 The relevant extrinsic material includes an interim report, published in

July 1990, of a Committee chaired by Sir Harry Gibbs and entitled "Principles of
Criminal Responsibility and Other Matters" ("the Gibbs Committee Report") 37.
33
Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 538.
34
Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 539.
35
Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 540.
36
Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 542.
37
See R v LK (2010) 241 CLR 177 at 203 [51] per French CJ.
Gleeson J

16.

Chapter 39 of that report is entitled "Parties to the Conspiracy" 38. The chapter
commences by citing s 2(2) of the Criminal Law Act 1977 (UK)39, referred to in
Midland Bank [No 3]40, and then relevantly states41:

"At common law there can be no criminal conspiracy if the only two
parties to the agreement are husband and wife [citing Mawji and Midland
Bank [No 3]]. This rule originally derived from the doctrine of the unity
of husband and wife; it has been criticised as outmoded and there has been
a refusal to extend it to the tort of civil conspiracy. ...

Conspiracies to commit offences against Commonwealth laws are of a

kind likely to be made between spouses. Conspiracies to import heroin
into Australia and conspiracies to defraud the revenue are obvious
examples. The Review Committee can see no valid reason of social policy
why the rule that there can be no conspiracy between husband and wife
should be retained. That rule is based upon a fiction which is unacceptable
in modern society. It is anomalous, since a wife may be guilty as an
accessory to an offence committed by her husband although she is not
capable of conspiring to commit that offence.

...

38
Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal
Responsibility and Other Matters (July 1990) at 379-391.
39
Section 2(2) of the Criminal Law Act 1977 (UK) provided that:

"A person shall not by virtue of section 1 above be guilty of conspiracy

to commit any offence or offences if the only other person or persons
with whom he agrees are (both initially and at all times during the
currency of the agreement) persons of any one or more of the following
descriptions, that is to say –

(a) his spouse;

(b) a person under the age of criminal responsibility; and

(c) an intended victim of that offence or of each of those offences."

40
[1982] Ch 529 at 539 per Lord Denning MR, 540 per Fox LJ, 542 per Sir George
Baker.
41
Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal
Responsibility and Other Matters (July 1990) at 380-381 [39.3], [39.4], [39.7]
(footnotes omitted).
 Gleeson J

17.

The Review Committee recommends that the consolidating law should

contain a provision to the effect that there may be a conspiracy to which
the only parties are spouses."

30 The Code does not include a provision which explicitly addresses the
Review Committee's recommendation. However, even assuming that the
inclusion of such a provision was intended by the recommendation, its absence in
the Code is of little assistance to the appellant where the report identifies the rule
upon which the appellant relies as distinct from the common law meaning of
"conspiracy".

31 The position of corporations as parties to a conspiracy is also considered

in the Gibbs Committee Report. The report refers to uncertainty about whether a
company could be criminally liable for conspiracy; whether there could be no
conspiracy between a "one man company" and the director who has sole
responsibility for its management; and whether there could be conspiracy
between a company and the board of directors who controlled it, or between a
company and a subsidiary over which the company exercised complete control 42.
In that context, s 11.5(3)(b) would appear to simplify the operation of s 11.5 in
relation to corporations and does not relevantly affect the proper interpretation of
s 11.5(1).

32 Finally, it is relevant to note that the Code has its origins in a draft Model
Code prepared by a Committee established by the Standing Committee of
Attorneys-General in 1990, the Criminal Law Officers Committee, subsequently
designated the Model Criminal Code Officers Committee43. After setting out the
draft offence in relevantly similar terms to s 11.5(1), the Committee stated in its
report that44:

"Parties issues

Conspiracy raises a number of issues which might be described as issues

related to the 'parties' to the agreement.

No protection is provided for spouses. Clearly a husband and wife can be

guilty of conspiring with each other. Marital immunity is outdated; any
objections to husband/wife conspiracies are objections which go to the
nature of the conspiracy offence itself ... Some Griffith Codes are also
42
Review of Commonwealth Criminal Law, Interim Report: Principles of Criminal
Responsibility and Other Matters (July 1990) at 388 [39.22].
43
See R v LK (2010) 241 CLR 177 at 204 [53] per French CJ.
44
Australia, Criminal Law Officers Committee of the Standing Committee of
Attorneys-General, Model Criminal Code, Chapters 1 and 2: General Principles
of Criminal Responsibility, Final Report (December 1992) at 103.
 Gleeson J

18.

outdated on this issue: see s 33 Queensland Code (recommended for

repeal by O'Regan, p5) and s 297(2) Tasmanian Code, both taking the
common law position."

33 These extrinsic materials further support the conclusion that 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.

Conclusion

34 The appeal should be dismissed.