[2021] HCATrans 040
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S188 of 2020
B e t w e e n -
ALO-BRIDGET NAMOA
Appellant
and
THE QUEEN
Respondent
KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 11 MARCH 2021, AT 9.44 AM
Copyright in the High Court of Australia
MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the appellant with my learned friends, MR R.W. HADDRICK and MR D.P. FARINHA. (instructed by Zali Burrows at Law)
MR S.J. FREE, SC: May it please the Court, I appear for the respondent, with my learned friends, MR T.O. PRINCE and MS B.E.M. ANNIWELL. (instructed by Commonwealth Director of Public Prosecutions)
KIEFEL CJ: Yes, Mr Reynolds.
MR REYNOLDS: Can I ask your Honours, if it is not inconvenient, to have three documents to hand: first of all, our written synopsis of argument; second of all, our submissions in‑chief; and, third of all, our reply because I will be referring to each of those documents in due course.
Your Honours, the principal issue for determination in this case is set out at paragraph 2 of our synopsis and that is whether two spouses alone can commit the offence of conspiracy under section 11.5 of the Code. Your Honours will understand that my client says that they cannot, and she submits that that is clear from the text of section 11.5, from the decision in LK, particularly paragraphs 107 and 131, and also from the established common law position.
If it is convenient, I would like to take your Honours briefly to the terms of section 11.5(1), which conveniently is set out in the appeal book at page 119. At about line 40 on that page, your Honours will see subsection (1) - I am not going to read it out to your Honours, but your Honours will see that there are three words there which we would underline, at least notionally. The first is in the first line, where the word “conspires” is used, and on the third and fourth lines, the word “conspiracy” is used.
Whilst we are looking at the section, can I also draw your Honours’ attention briefly to subsection (3), which is on page 120, beginning at about line 11, and the short point here is that if your Honours review that briefly, your Honours will see that it is mainly about parties and yet there is not any mention in that subsection at all of the rule about parties, which is the subject of this particular case.
Can I move then to – and I said that the decision in LK (2010) 241 CLR 177 was critical. I also said that there were two critical paragraphs, paragraph 107 and also paragraph 131 and, if it is convenient, I would like to take your Honours very briefly to that decision. If I can take your Honours to paragraph 107, your Honours will see – and I will not read it out, but I will paraphrase it a little – that the plurality there pick up the words “conspires” and “conspiracy” in subsection (1) and note that they are to be:
fixed by the common law subject to express statutory modification . . . These are words that had an established meaning within the criminal law at the time the Code was enacted.
There are really two points there. One is that they are pointing out that “conspires” and “conspiracy” had an established meaning at common law and, secondly, they are saying that that common law meaning – common law principles – can be ousted by express statutory modification.
The effect of that paragraph, as your Honours already understand, is really to send one to the common law. We have submitted at perhaps too great a length that there is a very well‑established principle at work here. If I could take your Honours to the reply, your Honours will see there is a footnote at the bottom of that page where there are various statements made – the effect of which is perhaps, summarised by Justice Weinberg and Professor Lanham’s book that:
“[a]t common law an agreement between husband and wife is not a conspiracy” –
There is reference there also to what I will respectfully call the Gibbs review that:
“[a]t common law there can be no criminal conspiracy if the only two parties to the agreement are husband and wife” -
and to various other authorities or works which make that point. The point is also made in the decision in Kowbel, which is quoted there where it stated:
“it is well settled … that a husband and wife cannot alone conspire”.
and there is also the decision - I can add a couple of extra references there. Your Honours will see - this is at paragraph 4 of our outline, on about the fourth line, there is reference to the decision of the Privy Council in Mawji, page 134, where it is stated that:
The words ‘conspire’ and ‘conspiracy’ in English criminal law are not applicable to husband and wife alone” -
and that concept is also dealt with in the decision in Midland Bank at page 511A. So, once one factors in this common law principle, as the interpreter of the section is instructed to do by paragraph 107 of LK, then the effect, we submit, is to import the well‑established common law rule. That is clear then really from three things: one, the text; secondly, LK at paragraph 107; and, thirdly, from this established common law principle.
Your Honours will see that we do add an extra reference in LK in this context and that is because at paragraph 131 the plurality pick up the words of paragraph 107 and this, we suggest, is like a footnote to paragraph 107. About halfway down paragraph 131 they refer to the word “conspires” having its established legal meaning and, importantly, they say that thereby:
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 -
Your Honours know what we say there. We say that this interpretation of paragraph 107 is clear when one factors in the common law, but when one also factors in what we submit is in effect a footnote, then that also underlines the proposition that the law of conspiracy vis-à-vis parties is also within the principle stated at paragraph 107.
The Crown’s response, as I understand it, to paragraph 131 is to submit that the reference to parties – this is my understanding of the submission – is a reference to parties in fact but not parties in law, with the implication that my client is taking a legal point not a factual point.
We have two responses to that. The first is that the words in paragraph 131 do not bear that out ‑ that is, that distinction. In fact, we would submit they are not even capable of being read in that divided way. Second of all, as I have already mentioned, my client does not need to rely on paragraph 131. We like it and we would encourage your Honours, so far as we may, to look to it, but the principle is the principle stated in 107. That is the important thing and we do not need to rely on paragraph 131, although we do rely upon it.
GAGELER J: Mr Reynolds, at common law was a corporation capable of being a party to a conspiracy?
MR REYNOLDS: Your Honour, can I answer that in this way, that first of all my understanding is that in some circumstances it can be, if I may, if your Honour will permit me to say so, subject to the principles about crime and corporations. There is an exception to that and that is where the company has an individual who controls the company, as often happens, sometimes called a one-man company, but not confined to that.
In that situation, at common law my understanding – and I have not gone into that in great detail – is that there cannot be a conspiracy between a one‑man operator of a company and the company itself. There is a series of issues that arise in relation to parties. We are only dealing in this case ‑ ‑ ‑
EDELMAN J: Mr Reynolds, is your submission really one that husband and wife cannot be parties or is it one that at common law there is an immunity between husband and wife in relation to a charge of conspiracy?
MR REYNOLDS: Certainly more the former than the latter. The wording I would respectfully adopt is the sort of wording that we see in the footnote in our reply. But no, I do not assert that it is an immunity at all.
EDELMAN J: Because if it is the former, it is not an immunity as might be supported by, for example, policies of confidence within the marital relationship or something like that, and it truly is a party principle. Is the only rationale then that there is a unity between husband and wife so that there cannot be two parties?
MR REYNOLDS: Your Honour, we say it is bound up with what “conspire” means at common law and we submit that the – I am going to call it the “spousal conspiracy rule” as a shorthand, or SCR as it appears in our outline – we submit, and I will be dealing in effect with the answer to your Honour’s question in great detail probably in about 45 minutes or so, but it is a long section of the argument and there are two propositions that I will be advancing. The first is that this principle is not dependent upon any unity rule, and the second is that the underlying basis of the spousal conspiracy rule are policy‑style issues, and I will be developing that, as I say, at greater length ‑ ‑ ‑
GORDON J: Are those policy‑style issues any more than marital relations?
MR REYNOLDS: Your Honour, it is certainly one of the factors ‑ ‑ ‑
GORDON J: Do they rise any higher?
MR REYNOLDS: If your Honours - and we are jumping ahead here, that is at least in terms of my argument, but we have set out in our outline the various factors at paragraph 15, if it is convenient to go to that. They are the various factors which we submit are capable of sustaining the principle at common law and moreover that are in the – really the only very lengthy treatment of this issue has been in the decision of Lord Oliver, or Justice Oliver as he was at the time in the Midland Bank Case, followed by the approval by at least two Lord Justices of his reasoning in the appeal from his decision, and also some elaboration of the policy basis ‑ ‑ ‑
EDELMAN J: That decision was about an immunity, was it not? It was very closely related to section 2(2) of the Criminal Law Act or Criminal Law Procedure Act.
MR REYNOLDS: Your Honour, the precise point at issue in the Midland Bank Case – in its narrowest form – related to the civil law of conspiracy to injure. I will be taking your Honours to the decision – the relevant passages – in due course. Obviously, I will do so now, if directed so to do. But the effect of the decision was to deal, as part of its ratio, with the position in crime. Why: because Mr Munby, who had the burden of the argument on this point, wanted to say that in the civil law there could be no conspiracy between husband and wife alone.
In order to get to that result, he first needed to look at the – or he submitted – that the Court should look to the position in crime and he submitted that the underlying policy or rationale of the rule in crime was unity. He then sought to move from that proposition to the argument that under a civil conspiracy the same principle applied.
Now, both of those submissions were rejected by all four judges who looked at the matter and, for present purposes, the most important point is – or two points are that, first of all, they rejected the proposition that the rule in crime is based on unity. That is the first point. The second point is that they held that the rule – the spousal conspiracy rule, as I am calling it – was based in policy considerations.
EDELMAN J: That is what I am querying with you – whether or not, once you take away the unity rule, the provisions like section 2(2) of the Criminal Law Act, which was at the core of the reasoning in Midland Bank v Green and provides that a person shall not be guilty of conspiracy if the only other person is the spouse or civil partner, if they are not provisions that are about who can be parties to a conspiracy but provisions as to when an immunity from liability arises. It has become a common law immunity rather than a principle about who can be a party to a conspiracy.
MR REYNOLDS: Your Honour, my respectful submission is that the decision in Midland Bank is about the common law and that there is no basis upon which the Crown, in this case, can extrapolate from the particular section that your Honour has referred to, and make any argument out of the references to that section in the Midland Bank Case.
EDELMAN J: It did not form part of the reasoning.
MR REYNOLDS: I submit not, because they are looking at, as I said, at least two principles. One is a common law civil conspiracy, and the relevant jurisprudential integer, relied on by Mr Munby, is the common law of criminal conspiracy. He then tries to assert that if you have unity from the common law principle in crime then you will have unity in the civil law and you can then make an argument based on the fact that in the case that he was dealing with there were only two spouses who are the only parties to the civil conspiracy, and he wanted to be able to say that the rule that applied in common law did not apply to the civil area.
So we submit that there is nothing that can be made out of section 2 of the English Act, except perhaps a rhetorical flourish on my part that demonstrates – the passing of that section demonstrates that the UK Law Commission and the Parliament were prepared to accept that, as a matter of policy, this spousal conspiracy rule should be enacted as a matter of statute, as has happened in other jurisdictions, but, as I say, that is really not much more in this context than a flourish on my part.
KIEFEL CJ: Mr Reynolds, just returning for a moment to what LK holds, is there a distinction to be drawn between the technical legal meaning which the word “conspire” has acquired at common law and a separate question of whether there is a common law rule as to when that meaning will apply or not?
MR REYNOLDS: We submit that it is all bound up in the one thing, and I took your Honours to the statements in the footnote in our reply and to a couple of other authorities ‑ ‑ ‑
KIEFEL CJ: I am not sure that that is necessarily bound up - they deal with when the common law – what the common law says about whether conspiracy can apply when the parties are parties to a marriage, but just looking at LK, all that LK holds is that the technical legal meaning at common law can be taken to be the meaning in the Code, what the offence of conspires involves. LK does not appear to me to say anything about the common law rule upon which you apply.
MR REYNOLDS: Well, except this, that - certainly not – I agree, your Honour, there is not a particular issue about parties in that case, although towards the end of the plurality’s judgment they do discuss parties quite a bit.
KIEFEL CJ: But it says nothing about the common law rule relating to marriage.
MR REYNOLDS: No. Your Honour, I cannot say that ‑ ‑ ‑
KIEFEL CJ: Which might suggest that this is more than a question of construction. We are not concerned just with what the words “conspires” or “conspiracy” mean in the Code, but whether or not the Code is overlaid with the common law rule. That is really the question that you raise, is it not?
MR REYNOLDS: Your Honour, we put it that the fundamental issue is what is involved in the notion of conspiracy or conspirators or conspires at common law and the fundamental bases of that one can no doubt elaborate on and debate. But, relevantly, as we have said by reference to this footnote, the way that the words “conspire” and “conspiracy” have been interpreted has been that those words do not include to spouses and that ‑ ‑ ‑
KIEFEL CJ: That is the distinction between meaning and application. As a question of construction, does not your argument really require that section 11.5(1) of the Code is subject to an implication which excludes the prospect of a conspiracy in the case of marriage?
MR REYNOLDS: With respect, your Honour, I do not put it that way. I attempt to wrap myself in the mantle of paragraphs 107 and 131 and I say that the established meaning of “conspires” and “conspiracy” and, for that matter, of “conspirators” incorporates this notion that I have talked about in the footnote. I cannot really take it any further, your Honour.
GORDON J: Mr Reynolds, can I ask a question about that. I know you do not want to wrap yourself in it, but when you look at the MCCO report, which preceded this, that would seem to be contrary to what was intended by that report, especially Chapter 17.
MR REYNOLDS: Your Honour, we deal with that in our outline at paragraph 17. The point that is put against us is that, when one looks at the paragraph my friends rely on ‑ ‑ ‑
GORDON J: Which says no protection is provided for spouses.
MR REYNOLDS: Yes. One perhaps can infer from that – I underline the word “infer” – that they thought that if there was not any protection then it would mean that spouses could conspire. But the point we make in paragraph 17 is that it is well established that the intention of the draftspersons or drafters of this provision is not the relevant test, just as it is not the relevant test that a particular minister or parliamentarian or somebody else ‑ ‑ ‑
GORDON J: No, that is not the suggestion, I do not think. The suggestion I was putting to you was that you have this question of construction posed by the Chief Justice and when one looks at the text, then one looks at the extrinsic material, one finds support for the construction that “person” means person and that the unity principle is therefore put to one side.
MR REYNOLDS: Your Honour, we deal with that “person . . . another person” in paragraph 16 of our outline. Can I say, before I get to the points we make there, that there have been plenty of statutes all around the world in this context that have used “person . . . another person”. This argument has been repeatedly tried by prosecutors and rejected, that is that those words somehow oust this common law rule.
But in order to, as we say in paragraph 16, to even get to that argument, my friends have to get your Honours to, in effect, overrule LK at 107, which has been adopted in subsequent cases in this Court on the issue of express statutory modification. We say, and I do not understand this to be put by my friends – we say that if it is obviously an express statutory modification, they would have to argue that it is implied. Now before they get to that, they first have to have your Honours put a line through this, we say, fairly well‑established principle in LK at 107.
KEANE J: They do not have to get us to put a line through anything in the statute, which is a provision - which is a Code. When one looks at section 11.5(1) it says:
A person who conspires with another person to commit an offence -
The conventional approach to the construction of a Code is to ask not at the outset what would the common law achieve but what does the Code achieve, and the Code says, “A person who conspires with another person”. Now, to give effect to your argument, I am having a difficulty in seeing how you do that otherwise than by saying that in this case we do not have a person who conspires with another person.
The common law rule only operates on the footing that you say that there is only one person. There is unity between husband and wife. How do you say – and you have to deal with the language of the Code before you go to ask does the common law tell us something that alters the effect of the language. You do not start by saying what is the result the common law would produce. Here, as I understand it, you accept that there is a person who conspires with another person.
MR REYNOLDS: No, that is where we part company, your Honour.
KEANE J: So, you do nail your colours to the mast of the unitary theory ‑ ‑ ‑
MR REYNOLDS: No.
KEANE J: That a wife is just part of the husband.
MR REYNOLDS: No. What I say is, first of all, as your Honour well knows, when you are talking about a word of technical meaning in the law a code may use a word of that kind which will – and it may import the common law meaning. Here, in LK 107, this Court has said that the word “conspires” has its common law meaning.
KEANE J: That is because, as was explained in Agius, there is no defined Code meaning for “conspiracy”. There is - you obviously have to understand that term as a term that is not defined. But “person” and “another person” are ordinary terms available to English language, and how do you give effect to those words?
MR REYNOLDS: We submit, with respect, very easily - the other words “conspires”, “conspiracy” where twice appearing and we say, as it were, through that entry point the common law relating to principles relating to what amounts to a conspiracy are thereby incorporated in the section and we concern ourselves not at all with the word “person” other than to say that, with all due respect to the draftsmen, to suggest that somehow those words would oust the technical meaning of “conspires” flies wholly in the face of case after case after case so that ‑ ‑ ‑
EDELMAN J: So, what you are saying then is – you are not saying that person with another person is problematic because there is a unity principle and there is only really one person involved. What your submission is is that there is a separate principle from the idea of unity, which is a principle that is informed by some other form of policy considerations which gives them immunity.
MR REYNOLDS: Not an immunity, your Honour, but – I am sorry.
EDELMAN J: It is not part of the rules of conspiracy itself. It is outside conspiracy which says, for whatever policy reasons that you rely upon, there is no liability where what you accept to be two parties otherwise fulfils all the requirements of a conspiracy. So it is an implication of an immunity.
MR REYNOLDS: With respect, no. The way I put it is that this – because of LK, and LK saying “conspires” has its established legal meaning in common law we say that one can footnote that with, relevantly, the common law relating to conspirators, conspiracy, conspires as set out in the footnote in our reply, and to use the vernacular, that is the way it gets into the section, not by picking up what your Honour Justice Keane said to me – saying, “Well, it is a code, so when it is a code you walk in and you say well let us start with the common law and see what has changed”. I am not saying that at all.
The only principle that I rely on in relation to codes is one that I respectfully submit does not have the slightest doubt about it, which is that certain words in codes are interpreted as having their common law meaning and we know from LK that the word “conspires” has its common law meaning, and part of the common law meaning of “conspires”, I submit, incorporates what we have been calling the spousal conspiracy rule.
KIEFEL CJ: Mr Reynolds, the technical legal meaning that LK was referring to is the common law technical meaning of “conspiracy” which involves the central concept of an agreement between conspirators – a single physical element of conspiracy with another to commit a non‑trivial offence and the fault element is intention. That is the common law legal technical meaning of “conspire”. It says absolutely nothing about marriage.
MR REYNOLDS: If your Honour were so to hold ‑ ‑ ‑
KIEFEL CJ: That is all that LK says. Can you point to anywhere in LK where it says anything – that the meaning to which it refers – the common law meaning – says anything more than that – that this is what the offence of conspiracy is constituted as.
MR REYNOLDS: Paragraph 131 – taken to include the parties to the conspiracy and - and the matter your Honour just raised with me the sufficiency there dealing is to constitute the agreement. “And” is important there because it says not only are we talking about – as your Honour put to me – what amounts to the agreement, we are also talking about an issue about parties.
EDELMAN J: But I thought you had conceded to Justice Keane that there are two parties involved in this case – that you are not relying upon the unity principle to suggest there is only one party.
MR REYNOLDS: Your Honour, the way I put it is that I do not rely or need to rely on any interpretation about parties and parties. What I rely on is that there is, in effect, no conspiracy and cannot be a conspiracy between spouses alone.
GLEESON J: I think you are saying it is similar to a concept like incest. It bears, intrinsically, some content about the particular types of relationships.
MR REYNOLDS: Exactly, and that it imports various incidents – various aspects. One of those aspects is the one that we are talking about and I also point your Honours to paragraph 131. I concede that the spousal conspiracy rule was not the subject of that case, but I do say well, the plurality in that case – that must be taken to include the parties and the agreement – or the notion of what amounts to the agreement. At any rate, this is at the crucible, as it were, of where the argument is. I really cannot say any more on the point than I have. But, I think, with respect, your Honours understand what I am submitting, and, with respect, I also understand what some of your Honours have put to me in that regard.
But this, as it were, difference between what I am putting and what some of your Honours are putting back to me lies, I accept, at the heart of the argument and your Honours at the end of the day, as we say, either accept what I am saying, or your Honours do not.
If I can move on then a little bit; I was talking about paragraphs 107 and 131 of LK and in part because I submit these paragraphs caused the prosecutor so much difficulty. One of the techniques that is deployed against my client is to say that the propositions in paragraph 107 – I understand it to be conceded their ratio, but the point that is put against me is that they are not a binding ratio and my friends point to a couple of cases in this Court which have talked about a similar concept – that is, where first of all the Court simply assumes the correctness of a proposition and if, in addition to that, the proposition was not argued then my friends, as I understand it, accept that the relevant statement can be ratio but they say not binding ratio.
We take both of those propositions on head long. We say that, if your Honours go to paragraph 107 – and you probably do not need to read it again – it simply is not tenable to suggest that the relevant propositions we are talking about in that paragraph were simply a matter of assumption. This was an issue that was central to the resolution of the case. It is the most important paragraph in the whole case and their Honours determined the correctness of the two propositions – that is, roughly speaking, conspires as is established common law meaning, two, subject to express statutory modification. They determined the correctness of both of those propositions and they lent their authority to its correctness.
To pause there for a moment, this sort of argument, as your Honours appreciate, ultimately goes back to a statement by Professor Rupert Cross in his book Precedent in English Law. The only additional point that I would make is that – I do not think I need to take your Honours to this decision but there is a case called R (Kadhim) v Brent London Borough Council [2001] QB 955. At paragraph 38, the Court of Appeal talk about this principle and indicate some exceptions and qualifications to it.
The other point that I would make about this binding ratio point, and I think one of your Honours has already put this to me, is that in the Agius decision, which is also in the authorities, at paragraph 32 the plurality referred to LK and paragraph 107 and used the word “held”, and your Honour Justice Gageler at paragraph 54 used the word “holding”.
So, we submit that that also adds support to the proposition that this is binding ratio. It is not a matter of assumption. As to the proposition that these two points were not argued, my friends, as I understand that, get that aspect of their argument from a sentence in paragraph 107 where - it is about six lines from the bottom of the paragraph - it is stated:
On the hearing of the appeals senior counsel for the appellant accepted so much.
That presumably refers back to the word “conspires” having its established meaning, et cetera. I have checked the transcript and that appears to be correct. The point I would make is that if your Honours go to paragraph 95, your Honours will see that in the same senior counsel’s written submissions - that is of course assuming that he composed them - there is reference to “conspiracy” and the words “fixed by the common law”, and there is then a submission in writing that that is wrong because it does not accord with settled principles respecting the interpretation of the Code.
So the point I would make is that this point was argued, but in writing, but in the end we of course would say, because of the inevitability of the matter being resolved against him senior counsel kowtowed and accepted this proposition. At any rate we submit that that argument does not get anywhere.
The other thing that is said by my friends relates to paragraph 131 of LK, and it said that the statement about parties that I have taken your Honours to is only a dictum. I say three things about that. The first is that, as your Honours understand, we submit that we come within the principle in paragraph 107 without any help at all from paragraph 131. Secondly, we submit that the relevant portion of 131 is not a dictum but as I have also submitted earlier, in effect is a footnote to paragraph 107 which explains, or to use the word in LK, is the subject of the exegesis in paragraph 131, where they use the words “taken to be included”.
The final thing is if your Honours were against me on that I would submit that this statement here – which leads into a very lengthy discussion about parties at paragraphs 133 to 141, particularly 133 and 141 – that that is pursuant to some observations made by the plurality earlier in the judgment at paragraph 91, when they say that they will later give a very considered discussion as to what the elements of the offence in section 11.5 are.
Can I move along then – there are a couple of submissions I need to deal with? Again – and I am underlining the difficulty for my friends, we submit, with LK. The Crown, in order to deal with that difficulty, submits two things, first of all, that paragraph 107 of LK is wrong on the two points about “conspires” having an established common law meaning and, secondly:
subject to express statutory modification –
We submit that as to that submission by the Crown that it, with all due respect to my friends, has not really been properly set up with the sort of submissions that your Honours would expect if a case was to be overruled – particularly when, in the decision in Agius, your Honour Justice Gageler and also the plurality at paragraphs 32 to 33 accepted the correctness of LK, 107. Can I also give your Honours a reference to the decision of this Court in Ansari – and just one paragraph, which is Ansari v The Queen 241 CLR at paragraph 58 also refers with approval to the relevant paragraph of LK.
The other thing that we have said in our submissions is that my learned friends refer to the decision in Pickett – and I am not suggesting your Honours need look at the text of that judgment but the proposition about technical words being used in a code and importing the meaning of common law was accepted in paragraphs 23 and 92 of that decision.
In the interest of time, I will not deal with the argument as to overruling LK, other than to point your Honours, respectfully, to the two paragraphs in our reply – namely, paragraphs 6 and 7, where we look at and summarise various reasons why we submit there is no case at all, not only for not overruling LK, not only for your Honours not saying it is wrong, but we submit no occasion even for your Honours to even reopen the correctness of it. There has not been, we submit, a proper case in the circumstances made out for overruling or even reopening the correctness of LK.
I come now to what I suspect is, apart from the issue your Honours have raised with me in relation to section 11.5, but it is probably the other main issue in the case which is - putting to one side construction issues such as those we have been debating this morning about 11.5(1) – to discuss the common law principles relating to what I have called the spousal conspiracy rule.
Your Honours have seen from paragraph 107 that it talks about established common law meanings and similar. We submit, and I do not think - my learned friend may perhaps want to take me up on this proposition – but I do not understand that there is any real issue between us, so on whether or not this spousal conspiracy rule had at some stage become an established common law principle and whether or not he disputes that proposition, we submit – and we have set this out in great detail in our submissions in‑chief at paragraphs 11 and 41 - when you have so many authorities supporting that proposition, both texts and cases – and, in particular from your Honours’ point of view where you have the Court of Appeal and the Privy Council in the UK, the New Zealand Court of Appeal, the Canadian Supreme Court and the Hong Kong Court of Appeal, plus the proposition was accepted in the Queensland Court of Appeal by Justices Pincus, Davies and de Jersey in R v Byast, I am going to, if I may, assume in my client’s favour, that at least at some stage this proposition has become established, and I add the footnote in our reply.
The argument as we understand it, and this is from your Honours’ point of view – as I said probably the other half of the argument other than the statutory interpretation issue - assuming that that is not an issue then I submit that that in effect gets my client home within paragraph 107, assuming of course that your Honours are with me on the issue of construction.
GAGELER J: It depends very much how you state the common law rules, does it not? Let me give you an example. I have just been looking at your footnote 1 of your reply and you quote from the Supreme Court of Canada in the decision of Kowbel, the concluding paragraph at page 503, tab 27 of our materials. Yet if you look at the statement of the rule at pages 499 to 500 it is very much about parties – who can be a party to a conspiracy.
MR REYNOLDS: Your Honour, I do not run away from that. We say that this notion of what amounts to a conspiracy and who may amount to parties are same horse different jockey. They are really the same concept.
EDELMAN J: Not once you take the unity theory away from it. Once you remove the unity theory, it is not about parties any more. You have two parties now. Then the question becomes should a brand new immunity be created?
MR REYNOLDS: With respect, take the example that I gave in answer to your Honour Justice Gageler. It is like the corporations situation. So your Honour might say to me, “You’ve got two parties. You’ve got the chap who owns the company and you’ve got the company. This is not an issue about” whatever. We say it is just the same as that, that in that instance there can be no conspiracy and we also say as part of that that those two persons cannot amount relevantly to parties, even if one accepts that they are a person and person within the meaning of that section.
GAGELER J: What do we take the common law to be as stated by the Supreme Court of Canada. This is the statement, page 499:
at common law, a husband and a wife could not be found guilty of conspiracy, because judicially speaking they form but one person -
Is that the common law rule that you seek to have us read in?
MR REYNOLDS: No. This is where – I do not have it in front of me but I accept what your Honour says. This is where I part company – and I will come to that in a moment – with the underlying rationale. I have to, for reasons your Honours have put to me, shake off the dust of the unity rule and move on to something else and I am I hope manfully attempting to progress along that path.
KEANE J: But that is the common law rule. The common law rule is not in consequence of such and such. The common law rule is there cannot be a conspiracy between husband and wife because they are one person, one rule. That is the common law rule. That is what the books say.
EDELMAN J: There is only one party.
MR REYNOLDS: Well, your Honour, with respect, I do not accept what your Honour has just put to me, and I have to take that on.
GORDON J: So, Mr Reynolds, I think I asked you earlier on, if you do not rely upon the unity principle, are we directed at these factors - what you call policy factors in paragraph 15 and, if so, what is the rule that gives rise or explains or includes them? What is it that we are supposed to – and where do we find it?
MR REYNOLDS: Well, see what I have set out, your Honour, in the reply. Your Honour, I am going into this in some detail. It is just going to take me a little while to get the points out. I am hoping in due course, if nothing else, that what I have to say will be clear, whether it is logically deficient or otherwise.
The way I approach this issue is to, as I have already, emphasise that this is an established common law rule. I might ask, if your Honours would be so kind, place to one side what its rationale is – I am underlining the proposition established, so that my client comes within paragraph 107.
What I then need to look at is how does my opponent attack that argument? I have said already that I do not understand my learned friend at some level to challenge the proposition that this principle was “established” – at least at some point. So may I respectfully assume that in my client’s favour until we hear otherwise.
GAGELER J: Mr Reynolds, the difficulty with that is that, at least on one view, there has been a clearly articulated common law rule to the effect that I read to you from the judgment of the Supreme Court of Canada, on which you rely. You want to take that rule - let us take it to have been established at common law - and you want to modernise it in some way to shear off a bit of it.
MR REYNOLDS: Your Honour, if I am driven to that course, then so be it. But what I am saying is that it is not part of the rule. It is a statement of a rationale with the rule, in effect, is what your Honour has put to me.
GAGELER J: That is the way the common law works, Mr Reynolds.
MR REYNOLDS: Well, your Honour, that is a big topic. But I think your Honour understands that I am drawing this distinction – and perhaps too laboriously. But the reason I am drawing this distinction is that I am attempting both to state what my learned friend puts against this proposition and also to try and joust with him and indicate, for your Honours’ benefit, why his argument is wrong.
What is his argument? Well, basically he uses a – or utilises what is sometimes called a cessante ratione argument – cessante ratione legis, ipsa lex cessat, that is, if the rationale of a common law rule ceases to exist then the common law rule will also cease to exist. This, as I understand it, is the attack that is made on the argument about it being established common law – is to say at least assuming that this rule…..relies on had become established at one point.
What has happened is that particular statutory provisions, which I will come to in a moment, have been passed, and that the effect of those statutes - I will just put the argument loosely - is that they – my words – destroy the unity rule and that the spousal conspiracy rule has the unity rule as its foundation, and once the foundation of the spousal conspiracy rule has been destroyed because the unity rule is destroyed, then it follows that the spousal conspiracy rule also falls. That is the gist of it.
Can I just say a couple of things before I get to the elements of the argument? What it is that your Honours have seen from our reply at paragraph 16 is that we have quoted various – I withdraw that. I have summarised what is on page 11 of the decision of this Court in Lamb v Cotogno – and I will not, in the interests of time, read that paragraph out – but if your Honours look at what we have said there I will attempt to summarise it whilst perhaps factoring in the circumstances of this case so that your Honours can see the context.
Your Honours will see that that particular case is, if I can put it colloquially – does not exhibit tremendous enthusiasm for this maxim, and Sir Anthony Mason and the other Judges in that decision made a number of statements about what the cessante ratione maxim will not permit a court to do. Can I also indicate, before I get to precisely what my friend says, that he does not say that the statutory provisions he relies on either expressly abrogated the spousal conspiracy rule or the unity rule.
The argument as I understand it is this, that my learned friends rely on first of all a series of acts which I will call Married Women’s Property Acts – this is at paragraph 62 of my friend’s submissions. My friend, in his submissions, does not take your Honours or the reader to the text, or even any particular subsection, but he extracts really two things. The first is that wives can acquire and dispose of property and the second is that wives can sue or be sued in their own name.
The other thing my friend does is he relies on section 119 of the Family Law Act, passed I think in 1975, which says that spouses may sue each other in tort and contract. So they are statutory provisions. You then, if your Honours – I do take your Honours to one paragraph in the decision in PGA v The Queen (2012) 245 CLR 355. The relevant passage my friend relies on is at paragraph 30 of the plurality decision – and I will not read it out.
But your Honours will see looking at paragraph 29 that this proposition, if I can put it that way, is put up in lights – I do not mean that disrespectfully – by the plurality. They are making the point that this is, and it is, an important statement of principle, and linking it to statements that Sir Owen Dixon said in his famous essay about judicial methods, so this is a big point that is being made here.
I will not read out the paragraph - I summarised it, I hope, at least the gist of it, a moment ago. But if I can move from that paragraph to what my learned friend’s argument is, applying that paragraph in this case, we have set out what we understand the argument is, transposing as it were the integers in this particular case into that formulation at PGA, 30. I will, if I may, trouble your Honours to read paragraph 10 of our synopsis. This is, as we understand it, what my learned friend says. He says, first of all:
at common law the SCR came into existence –
He may dispute “long ago”:
(ii) there is another common law rule, namely, the unity rule; (iii) “the reason or foundation” of the SCR is the unity rule; (iv) by reason of various statutory provisions the unity rule has ceased to exist –
and finally, and this is conclusory:
(v) therefore the SCR has ceased to exist (having become a legal fiction).
So that is as we understand what is put against my argument that “conspires” has an established legal meaning. If your Honours go back to paragraph 10, can I indicate this. That so far as (i) is concerned, I concede that my learned friend has that. So far as (v) is concerned, that is a conclusion which will follow if the other four integers, and all of them, are made out. Where I am at issue with my friend is on (ii), (iii) and (iv). Can I deal with (ii) first; I am going to deal with it slightly out of order.
This element, as your Honours see from paragraph 10, is that there is a common law rule, namely, the unity. If your Honours go to our synopsis at paragraph 11, your Honours will see what a difficult proposition that is for my friend.
KIEFEL CJ: Mr Reynolds, do you agree that the current status of the common law unity rule is now that of a mere fiction? Do you accept that to be the case?
MR REYNOLDS: Your Honour, the way I would put it is ‑ ‑ ‑
KIEFEL CJ: In the same way as PGA describes the old common law rules which have lost their foundation.
MR REYNOLDS: The way I would put it is that I would adopt what is said in paragraph 11.
KIEFEL CJ: That is what you have said.
MR REYNOLDS: Yes.
KIEFEL CJ: I am just asking you, what is your position with respect to the common law unity rule which you, as I understand it, accept was the common law rule at some point? On an analogy with what was said in PGA, do you accept that it now has the status of a fiction?
MR REYNOLDS: I accept that if the elements of PGA 30 are made out, then the unity rule will have become a legal fiction, is the way I would put it.
KIEFEL CJ: Are they made out – is it a fiction?
MR REYNOLDS: If PGA 30 – your Honours will see from our paragraph 10 – if those five elements are made out, then the bottom line is – this is a conclusion in (v), then it becomes a legal fiction.
KIEFEL CJ: Well, has it? That is the question that I am asking you.
MR REYNOLDS: Can I answer your Honour’s question in this way? We submit that – and I am responding to my friend’s argument – that when one looks at the elements in PGA 30, that elements (ii), (iii) and (iv) have not been made out and, therefore, the conclusion at (v) does not follow. That is my submission, your Honour.
EDELMAN J: So, the unity rule still exists, in your submission?
MR REYNOLDS: Your Honour, I do not put it that way because, as your Honour will see at paragraph 11, I do not accept that it is a rule. I am talking about something which – if your Honour goes to paragraph 11 of our submissions – is a notion, or a maxim ‑ ‑ ‑
EDELMAN J: Does the notion or the maxim still exist? Should a court in the 21st century rely as part of its principal basis for supporting a doctrine that husbands and wives are the same person?
MR REYNOLDS: No, but the way that I am tackling it is to try and engage with what is put against me and it is based on my friend’s argument – on PGA 30 – that he starts with a rule which he calls the “unity” rule – his phrase not mine. We say it is not a rule and ‑ ‑ ‑
GORDON J: But you do not rely on this rule. So why do we go through this? Why do you not put your case and explain to us what you say that the common law rule now is? If we do not have the unity rule, we do not have it as - whether it is a fiction, a maxim or anything else, it does not exist. We have got that far. What is left?
MR REYNOLDS: Your Honour, can I say this? Your Honour understands that I have put the proposition that this spousal conspiracy rule is an established rule. The only point, as I understand it, that is put against me on that issue is PGA 30 and that argument. It follows from that – and this is in response to your Honour’s question – that my learned friend is not, assuming that his written submissions are a guide to what he is going to say today and we will assume that in his favour - my learned friend is not going to stand up this afternoon and say to your Honours, “I submit that this spousal conspiracy rule is nonsense” and ask your Honours to abolish it and to abolish it now. That is not the submission that he is putting.
I need to explain why that is important because if that was the submission, again a submission he is not making, then that would involve a number of problems if that argument is or was put to your Honours in that way. The first problem with it ‑ and this is something that we have referred to our submissions in‑chief at paragraph 62 – is that it is, we submit, well established that this Court will not change the common law so as to create new offences or extend the criminal law.
Now, here, take South Australia where the common law of conspiracy applies, if your Honours were to throw out this principle, the effect would be to create a multiplicity of new offences because just about every defence in the South Australian statute book would be enlarged by allowing spouses to be able to conspire vis-à-vis that particular offence. So that would be the first problem. Also linked with that the notion of retrospectivity. The second thing I would say is that ‑ ‑ ‑
EDELMAN J: Before you move on to the second point, does the same retrospective concern about altering common law rules apply to immunities?
MR REYNOLDS: Apply to immunities?
EDELMAN J: In other words, if this were properly seen as being an immunity rather than as part of a rule for the elements of conspiracy.
MR REYNOLDS: Yes. I would say one cannot retrospectively or your Honours ought not, with respect, retrospectively abolish common law immunities, if your Honour adjudges this principle to operate in that way, but the beauty, my learned friend would say, about his PGA, paragraph 30 argument, is that it avoids this problem about retrospectivity in the same way as in PGA itself this issue of retrospectivity was avoided.
How? Because the effect of adopting paragraph 30 of PGA is not for the Court to say we are now abolishing this rule but to say, all we are saying is that this rule, long before the relevant offence or alleged offence occurred in PGA, this particular rule had ceased to exist. Ceased to exist, why? Because of this principle in PGA at 30.
The other thing I would say about the argument I submit my learned friend is not running is that this is a rule that, as I have said, perhaps ad nauseum, is very well established. It goes, to use Professor Maitland’s phrase, it is “rooted in the Year Books”. It is that ancient.
GORDON J: Yes, but this is 2021.
MR REYNOLDS: Yes, but ‑ ‑ ‑
GORDON J: That is the question.
MR REYNOLDS: Yes, but the point that I make making is the point made by Justice Oliver in the Midland Case at page 517D, and it has also been made in decisions of this Court, is that the courts will not, as he put it, legislate to order or abrogate such a clear and well‑established rule.
Finally, putting perhaps the same point in a different way, that with a rule that is that well established, in the abrogation of – is a matter for the legislature, and in that regard I would underline the fact - your Honours will appreciate this from reading the submissions - that this is a rule that has been – first of all is very well known, and second of all has been the subject, in every jurisdiction around Australia, of specific legislative provisions, either accepting the rule, rejecting it, or, as happened in Victoria, accepting the rule, except, I think, for murder and treason. So, I wanted to get that out and I am sorry to be so long winded in response to your Honour Justice Gordon’s argument, but your Honour ‑ ‑ ‑
GORDON J: It is not my argument. I am just asking – I am trying to understand what is the rule, so I understand the answer you have given.
KIEFEL CJ: That might be a convenient time for the Court take its morning break.
AT 11.03 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.18 AM:
KIEFEL CJ: Yes, Mr Reynolds.
MR REYNOLDS: Your Honours, I am going through these elements in PGA 30, perhaps too laboriously, but I want to ‑ ‑ ‑
KIEFEL CJ: I am sorry, I could not hear you, Mr Reynolds.
MR REYNOLDS: I said perhaps too laboriously. But it is important for me to attempt to take on each of these propositions except (i) in paragraph 10 of our synopsis, which I have conceded. Your Honours see from paragraph 11 of our synopsis that I make the point, by reference to authority, that this so-called rule, the unity rule is not a rule of law at all.
I will not read out what is in paragraph 11, but your Honours can see – I should say that “GLW” is Glanville Williams in his Modern Law Review article. But your Honours see that there are many statements, including in this Court – Tooth is a decision in this court - which have referred to it as a conception or a concept or what have you.
So I submit that if we are talking about something that is not even a rule, is not even a rule of law – in short, the prosecution fails at the first hurdle on the PGA 30 argument or unless he is going to ask your Honours to alter PGA 30 and substitute a new rule, in which case we look forward to hearing that for the first time.
Now, the fourth element – and this is in paragraph 12 of our synopsis – the fourth element is that my friend has to establish, we submit, that these various statutory provisions he relies on, which I summarised for your Honours earlier, that the effect of those statutory provisions is, if we go back to 10(iv), that the unity rule has ceased to exist.
So these Acts my friend relies on, I will just call them the Acts, before they were passed, there were I do not know how many dozen, more, rules that, to put it neutrally, are or are said to have some connection with this notion of unity – I think we are ad idem on that.
These Acts are then passed, and some of these rules, three or four of them, are, I concede, abrogated. That then, of course, leaves various other rules that have been said to have had a connection with this notion of unity. Of course, the one we are talking about is the spousal conspiracy rule, but there are others. One is a rule that your Honour Justice Edelman may recall that in the law of – the libel law of defamation a publication by one spouse to another was not actionable.
Another one which – that is referred to in Professor Williams’ review article at page 27. Another one he talks about is where one spouse, or rather the wife hides the husband, cannot be “guilty as an accessory” after the fact - that is at page 26. Another one in that article is about domicile, and how domicile of spouses is determined according to where the husband is domiciled. There are others. But the point that I am making is, let it be assumed that all of these rules have a connection with the notion of unity, some of these rules have been abrogated and the others have been left including, we would say, the spousal conspiracy rule.
So it is not suggested that the – either the unity rule itself or the spousal conspiracy rule or any of these other surviving rules are touched by these Acts in terms. If your Honours go back to proposition (iv) in paragraph 10, I submit that there a substantial number of problems with this argument. One is that neither the unity rule nor the spousal conspiracy rules are touched at all by this legislation relied on. Secondly, that even if the rules that had been abrogated by statute are based on the unity rule, the abrogation of those rules does not touch the underlying basis of those rules. Let it be assumed that that is the unity rule.
Next, that if one looks at this exercise by reference to the intention of the legislature the intention of the legislature is plain. The legislature is intending to abolish some of these rules, and we submit is intending to keep these other rules, or at least keep rules such as the one we are talking about, which is very well‑known.
Now, if the surviving rules, as I have called them, are based on unity, we submit it is difficult to see how either the surviving rules or the unity rule ceases to exist, which is my learned friend’s submission, as a result of this legislation.
Finally, two points. The first is, I said earlier assuming there is the requisite connection between the rules that are abolished and the unity rule - to be more accurate I should have said - looked at whether the rules that are abolished by this legislation actually have, to use the words of PGA 30, as the reason or foundation of those rules, the unity rule.
My learned friend, in order to get to first base with this argument, which, just to remind your Honours, is that these statutes come along and this is a unity rule, they do not in terms destroy the rule, they destroy, let it be assumed, some of the rules that are based on the unity rule. My learned friend then says ergo the unity rule is itself destroyed.
That argument is going to be put. An essential integer in it is to focus on each of those rules that is destroyed by the legislation and establish that each of those rules is itself or rather has itself as its reason or foundation the unity rule because if you do not do that you do not have a feather to fly with. Even that argument is difficult because, as I have said, the legislation does not actually abolish the unity rule itself.
The problem is this. First of all, my learned friend has not established that. I believe he may have asserted it at some point but he has not established it. More importantly, your Honours can at this stage, I submit, proceed on the assumption that at least one of the rules that has been abolished by this legislation is not based on the unity rule.
The reason your Honours can make that assumption, which obviously negatives what I submit my learned friend has to say, is that this decision in Tooth v Tillyer, which we have referred to repeatedly in our submissions, the common law rule that is discussed in that case is – this is made clear at page 612 at about point 7 – the common law rule that they are talking about is the rule that states that spouses are not liable, inter se, in tort.
In the passage which we have quoted as part of our submissions in‑chief, which is set out at paragraph 65 ‑ your Honours, I will probably go into this later in a little more detail because it is important – if your Honours were to read this paragraph – and as I say, I will dissect it a little more later - it starts off talking about the common law rule. That, as I say, is clear from page 612, that it is the liability in tort of spouses inter se. They say – this is Justices Dixon, Williams, Webb and Fullagar – that:
To say that the common law rule is based upon the conception of unity of husband and wife is probably to invert the order of historical development. One may suppose that the conception of the unity of husband and wife but was but an ex post facto explanation and –
critically:
not a source of the state of early English law upon the subject.
They then quote Bracton underlining, as I understand it, the word “quasi” in that quote, that is, paraphrasing it, that husbands and wives are treated, for some purposes, as if they were one person. They then pick up Professor Maitland’s statements about this concept. Professor Maitland is talking generally about unity. He is not talking about a particular rule in this quote which they cite with evident approval.
I should add, your Honours will see that they cite at the bottom of that passage Pollock & Maitland. As I understand it, Professor Pollock or Mr Justice Pollock, or whatever he was, only wrote one chapter of this book, so it is a bit of an in joke, I guess, that Professor Maitland was responsible for the relevant passage, but that is the explanation as I understand it. What Professor Maitland says, your Honours will recall that although it is not referred to in these terms, is the history of English law before the reign of Edward I – so we are talking about medieval stuff here – says:
“If we look for any one thought which governs the whole of this province of law, we shall hardly find it. In particular we must be on our guard against the common belief that the ruling principle is that which sees an “unity of person” between husband and wife. This is a principle which suggests itself from time to time; it has the warrant of holy writ; it will serve to round a paragraph, and may now and again lead us out of or into a difficulty; but a consistently operative principle it cannot be” -
So my learned friend, I submit (a) has not shown that all of these rules that have been abrogated by this legislation are themselves based on this thing called the unity rule, and in particular this decision really states in terms that the view that was taken in the earlier case of Phillips v Barnett, in that regard is not correct.
So it is an important part of our argument – I do not pretend for a moment that Tooth v Tillyer is about the spousal conspiracy rule, it is not, it is about another rule – but it is the main treatment of this concept of unity in this Court by these four Justices, and one thing I submit is clear and that is they are not talking about this is a rule, and they have serious doubts about whether or not it can be relied upon, and in particular they say it is not the basis of the rule that they were talking about in that case.
Can I step back just for a moment and give a short example which I hope illustrates the difficulty for my friend in putting this argument? If we move right away from the situation we are dealing with here and we jump to a discussion about, let us say, a dozen principles of the law of equity and there is a statute – sorry, I withdraw that.
Let it be assumed that each of those principles is based on what I will call the concept of unconscionability – not an improbable assumption – and along comes a statutory provision and it abrogates, let it be assumed, four of those rules of equity. If, in another case, someone in my learned friend’s position was to say this statute is abolished, each of those four rules, all of them are based on unconscionability – well, that means two things. First of all, it means unconscionability is gone. It has, in effect, been eliminated by these statutes and it also follows that these other eight propositions of the law of equity based, let it be assumed, on unconscionability, they are also gone.
I ask, rhetorically, would your Honours find that an attractive submission? I submit that if that is a reasonable parallel, your Honours would regard that as an almost impossible submission. Yet, that is the effect of the argument, as I understand it, that is put to your Honours based on PGA 30.
The other aspect of this and this is - which I suspect is, from what your Honour Justice Gordon has said and perhaps others of your Honours may be the issue that is of most interest so far as the common law is concerned – and that is - I dealt with these slightly out of order - that is proposition number (iii) in paragraph 10 of our synopsis which, to remind your Honours – and this is something, we submit, my learned friend has to make out as part of his argument – is that the unity rule is the reason or foundation of the spousal conspiracy rule.
Before I go on with that, can I underline the point I made earlier, which is that I submit my learned friend has to make out all of (i) to (iv) in paragraph 10. He cannot make out (ii) and he cannot make out (iv) – and I am now dealing with (iii) and I submit that he cannot make that out either. This, as I understand it, is an issue that your Honours are most concerned about – namely, in responding to my learned friend’s point, I need to address the issue of what is the reason or foundation of this rule?
Can I focus, at the risk of appearing pedantic, on the actual words of PGA 30, which are “the reason or ‘foundation’”? The use of the definite article in that context suggests that we are talking about either the only reason or foundation or what might be called the reason or foundation sine qua non – that is, that without unity the spousal conspiracy rule would have no other foundation capable of supporting it, would be another way of putting it.
So the point that I am making is it is not enough to say, well, when you look at the spousal conspiracy rule, and you look at kind of, if I can put it in general terms, what is behind it or the sort of things that underlie it, it is not enough for my friend to say, well, unity is in there somewhere, at some level and there is no doubt he submits about that and therefore I make out what I need to on PGA 30. That is not enough. My learned friend has to do more than that and, as I say, establish that it is the reason or foundation.
Now, your Honours have been, if I am allowed to say this, taxing me from time to time in the argument with passages from cases which refer to unity and saying in substance, “Well, there you go. How can you say it is not based on unity?” I can quote many cases like the one your Honour Justice Gageler did which say unity is the rule.
Well, that is completely admitted by me. If one made a list, I daresay there would be dozens of them. Not only that, let me build up the argument against me – they go back a long way, a long way. This has been stated repeatedly. If I were my learned friend I would be saying again and again and again judges have said this is based on unity. How can Mr Reynolds come along and say it is not based on unity when so many people, so many judges, so many text writers have said this is based on unity?
Well, we have submitted at paragraph 14 – I want to try and explain what my response is to that. We all know that this is an ancient rule, and we all know from, I hope your Honours reading the historical analysis we have provided in the submissions, that one goes back, as I said earlier, to the year books and very, very early texts from the sages of the common law that refer to unity – no doubt about that. But, this is in a particular context. It is in a context where first of all, there is not any dispute about this rule; everyone accepts it. It is, again quoting Professor Maitland:
rooted in the Inns of Court, rooted in the Year Books –
Your Honours remembers that quotation from Sir Owen Dixon of that, I think in the lecture on judicial method.
It was also in a context where, certainly in the early days, most of the judges were ecclesiastics, and even those who were not were steeped in holy writ, as we put it in our submissions. So no one is disputing this, everyone accepts it. It gets into the what one might call the jurisprudential ground order. It comes itself to be accepted as being akin to holy writ. Not only that, the prosecutors do not challenge it, they accept it. Those in the Inns of Court who prosecute, accept it. It not only is the law it is also part of the lore of how prosecutions are conducted. No one challenges that.
What happens, I submit - we have said this is paragraph 11 - is once it is stated early on and not disputed, it is simply assumed thereafter, it is never challenged, there is no argument about it. There was no need to decide the question, and it was a situation which simply did not occur, that is, that two spouses or one would be prosecuted for a purely spousal conspiracy.
Is that, I ask rhetorically, the sort of situation which a jurisprudential scholar would want to rely on as the true basis and fundament of the rule. I submit no and that all that has happened is that this has been repeated as what one might call hornbook law through the centuries, simply because it has never been challenged and the point has never been agitated.
KIEFEL CJ: I think we understand the point that you have made about the historical treatment of it and your reliance on Tooth v Tillyer as capturing that.
MR REYNOLDS: Yes.
KIEFEL CJ: The point you make at paragraph 14 is that it was only properly looked at more closely at the end of last century and that the Midland Bank Case states the proper basis ‑ ‑ ‑
MR REYNOLDS: Quite so, your Honour ‑ ‑ ‑
KIEFEL CJ: That is your paragraph 15.
MR REYNOLDS: I am sorry if I am being long winded about it. As I have said Tooth is not itself about spousal conspiracy rule, but it is about unity. You have, again, Professor Maitland, I think early last century, if my recollection is accurate, also having a look at this concept ‑ ‑ ‑
KIEFEL CJ: I think you have made that point, Mr Reynolds.
MR REYNOLDS: Sorry, your Honour.
KIEFEL CJ: I am just trying to save you having to repeat yourself.
MR REYNOLDS: I do apologise if I am being reiterative.
KIEFEL CJ: I think we know we are heading towards Midland and the policy factors which you say more correctly ‑ ‑ ‑
MR REYNOLDS: We are, but the point about Midland, and I will summarise it briefly, is that this is really the first time that the issue has been fully argued. It was argued by Sir James Munby, and I notice he has just retired from the Court of Appeal, and also Jonathan Parker, as he was then, and there is very full argument which your Honours will see set out in the reports.
There is no doubt that there is a very, very – and if I may respectfully say so – very able discussion of every aspect of the rule and its history, both in the argument and in the judgment of Lord Oliver, as he later became, and of the judges in the Court of Appeal. To summarise it briefly, Justice Oliver held first of all – I will give your Honours the references – that there was no doubt that the spousal conspiracy rule existed – that is at 510C. Secondly, he held at 521C that the spousal conspiracy rule was not based on unity, and thirdly, at 521C, his Lordship held that ‑ ‑ ‑
KIEFEL CJ: I do not think anyone knows why it is doing that, Mr Reynolds.
MR REYNOLDS: Does your Honour wish me to continue?
KIEFEL CJ: Perhaps if you stand back from the microphone a little.
MR REYNOLDS: I will give it a go ‑ ‑ ‑
KIEFEL CJ: I think we might have to stand down ‑ ‑ ‑
MR REYNOLDS: I think there is a limit, your Honour
KIEFEL CJ: - - - and see if we can have some solution to – it might have to do with how far up it is turned, so we will just adjourn briefly.
AT 11.46 AM SHORT ADJOURNMENT
UPON RESUMING AT 11:49 AM:
KIEFEL CJ: Mr Reynolds, it is the custom in this Court to bow to the Bench when the Bench bows to you.
MR REYNOLDS: I am sorry, your Honour, I did not notice.
KIEFEL CJ: I think you were at paragraph 15.
MR REYNOLDS: Your Honour, I am on Midland Bank and the decision of Justice Oliver, and at page 521, at C, his Honour holds that the spousal conspiracy rule is based on policy considerations. If your Honours go to page 511, at C to G, your Honours will see why those holdings are a ratio. I will not go into the detail of it. So far as the Court of Appeal is concerned, the basic point is that Lord Justice Fox and Sir George Baker agreed with Justice Oliver – Lord Justice Fox at page 542E – and I would also refer your Honours to page 541C and 542C to D – and Sir George Baker at page 542H to 543A agrees with both Justice Oliver and with Lord Justice Fox.
So, the effect – and we have tried to summarise this in paragraph 15 – is that their Honours – I withdraw that – their Lordships, in Midland, have picked up a variety of factors. We have set out both the references to our submissions on these points and also to the relevant passages in Midland on those policy factors. Now, the element that I am trying to get to, or trying to respond to, is number (iii) in paragraph 10, and that is that the reasonable foundation of the spousal conspiracy rule, I submit, is not the unity rule. My learned friend cannot establish that, again, the reason or foundation of the rule is the unity rule. So, pausing there ‑ ‑ ‑
KIEFEL CJ: What do you say it is then, Mr Reynolds? Do you say, by reference to Midland, that it is a combination of the various policy factors there identified?
MR REYNOLDS: Can I answer your Honour in two ways. First of all, obviously I am responding to the elements of PGA 30. In order to negative this third element, I need to be able to resist the proposition that the unity rule is the reasonable foundation – and I say that my learned friend has not and cannot establish that.
If your Honours are going to go on and look at what is the policy underlying this rule, an issue which I submit is strictly irrelevant to my learned friend’s PGA 30 submission, then my response is those factors that I have referred to in paragraph 15 are policy factors that are capable of justifying the rule.
GAGELER J: Now, one version of your argument, as I understand it, is the rule is the rule. It has been there since medieval times; it may have been justified or sought to be justified in different ways in different centuries but it is just the rule.
MR REYNOLDS: Exactly.
GAGELER J: Accepted as it is. Do we have common law rules without reasons anymore?
MR REYNOLDS: Well, your Honour, the short answer to that is, certainly if I go back long enough, sometimes where your Honours are dealing with a rule that is this ancient, then – and I put this in answer to what I hope in answer to what your Honour Justice Gordon raised with me – you say, look, as was said in Midland, this is an ancient rule. It has been around, in effect, for so long that it is difficult to see what the reason for it is; it is difficult to work out ‑ particularly because it was accepted for so long, what the ultimate policy or rationale is, but it is the law and has been for centuries.
Now, in that situation, particularly in crime, is it, I ask your Honours rhetorically, your Honours’ role to go about reversing the rule or saying, we do not like it or we do not like its policy rationale and we are going to, in effect, create these new crimes and this is a matter for us, not for the legislature. I say if we move into that territory, as opposed to considering my learned friend’s PGA paragraph 30 remark, your Honours would adopt a hands‑off approach and say ‑ particularly where there has been so much
dealing with this issue by the various legislatures, both in this country and elsewhere, it is a matter I submit very obviously for the legislature unless my learned friend can establish his PGA 30 argument within the terms of its actual parameters.
I put the submission high; my learned friend has grave difficulties with the various elements of PGA 30, and we say that it cannot be established. And if my learned friend then tries – and he has not so far, to be fair ‑ to flip onto this other way, perhaps, of getting to the point, then my response is as I have just put to your Honour Justice Gageler.
Your Honours, I am almost finished. I have dealt with this issue about implied ouster in paragraph 16. I really put that to your Honours before and I do not think I need to repeat it. Likewise, paragraph 17, I dealt with this committee, in answer to a question earlier, and your Honours see what my submission is there, which we have put in epigrammatic form in paragraph 17.
So far as the orders are concerned, we have submitted ‑ this is at paragraph 18 ‑ that no new trial should be ordered. The effect of the Crown’s written submissions is to raise one reason why a verdict of acquittal should not be entered, or an acquittal should not be entered by your Honours, and says, as we understand it, that the Crown may wish to run a new case based on a pre‑marriage conspiracy and may wish to amend the indictment in order to run the new case.
Now, we submit that is a substantially different case, and it would require an amendment to the indictment, and that the conspiracy occurred before marriage is an essential element of the charge, referencing the two cases that are there and for those reasons a new trial should not be ordered. If the Court pleases, those are my submissions.
KIEFEL CJ: Yes, Mr Free.
MR FREE: If the Court pleases. Your Honours have, I hope, our outline of oral submissions, and we begin putting that outline with what we say is an important point to emphasise ‑ that the determinative issue in the appeal is the construction of a statutory code. Your Honours are dealing with an offence created by the Criminal Code. The particular offence in issue in section 11.5, and you are concerned with an exercise of statutory construction of the Code in order to understand the nature of the offence created.
Your Honours, the principles of construction of a statutory code of this nature are well‑settled. I do not need to take your Honours to it, but in Pickett v Western Australia they are conveniently set out in paragraphs 22 and following, and the point, as your Honour Justice Keane alluded to a little earlier in argument, is a fundamentally important one.
One does not interpret a code on the basis that you start with a presumption that the common law is to be preserved and see whether or not it has been displaced. You are construing the words used in a code, and that can involve recourse to the common law in accordance with recognised principled exceptions.
One of those is where a code uses a technical term not otherwise defined within the code, and on its proper construction is understood as importing the common law meaning of the particular word used. That is the conventional exercise which the Court carried out in LK, in relation in particular to the verb “conspires”, which is the essence of the offence in 11.5. As their Honours were alluding to in LK, that is also reflected in the use of the word “conspiracy” in the Code.
The fundamental difficulty with our learned friend’s argument is in the way they wish to read what happened LK, and the exercise of construction in LK is that they leap from the proposition that the meaning of the word “conspires” is informed by the common law and the Code is to be read in such a way to the much broader proposition that by using the word “conspires” that Parliament intended to import all of the concepts associated with the common law of conspiracy, the common law offence of conspiracy, including the particular rule they invoke relating to conspiracy – in the conspiracies involving spouses alone.
So we say that is at the heart of the appellant’s argument. It is based, we would respectfully submit, on a misreading of what occurred in LK and it seeks to draw from LK propositions which one simply cannot get from that judgment.
We would emphasise, consistently with those principles and with the proper construction of a proper reading of LK, that your Honours when you look at the text and context of the Code will find that the operation of the offence provision in respect of persons, including persons who are married with each other and who happen to be the sole parties to a conspiracy, is perfectly clear.
If I could ask your Honours just to turn briefly to 11.5 in the Criminal Code. It is in volume 1 of the book of authorities on page 23 of the continuous numbering of the authorities. The text of 11.5(1) is clear. As we understand our learned friend’s argument, they disavow any suggestion that you could read down the word “person”, so it seems they accept that people who happen to be married and who happen to be married to the only other participant in the alleged conspiracy would still be persons for the purposes of subsection (1), but they say the word “conspires” imports within it also complicated rules as to which types of persons can commit the offence created by 11.5(1). We say that approach is inconsistent with both text and context.
It is important, in our submission, that the section itself deals in some detail with the rules relating to the persons referred to. So, in subsection (2) there is discussion of what is required:
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 –
You then see in subsection (3), which our learned friend referred you to, an indication positively that:
A person may be found guilty . . . even if –
certain circumstances are present. It is important also to look at subsection (4):
A person cannot be found guilty of conspiracy to commit an offence if:
(a)all other parties to the agreement have been acquitted . . . 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.
GAGELER J: Why is paragraph (3)(b) necessary, on your argument? Why is it there?
MR FREE: It would cut through, your Honour, ambiguity which was referred to, particularly in the Gibbs Committee report, about the circumstances in which body corporates can be guilty of an offence.
GAGELER J: But if a person, this includes a body corporate – you have a natural person in a body corporate, then you have a person in the person and they can conspire.
MR FREE: Yes, your Honour.
GAGELER J: You do not need it on your argument, I think.
MR FREE: No, I accept that – and it does serve to make clear what was otherwise a point of ambiguity in the common law about the circumstances in which a person could be guilty of a conspiracy with a body corporate and here it is put as a blanket rule. I accept that it may have been unnecessary to do it explicitly but doing so, explicitly, at least achieves that result.
I accept that it could have been open to the Parliament to include other equivalent provisions in a setting such as that. The submission we would make is that within the structure of the provision – and I accept that is in a different category – the notion that within the concept of “conspires” there are a series of complicated rules about which parties can and cannot conspire, in our submission is at odds with the provision.
We draw attention to broader considerations of context in other parts of the Act where the Parliament has been very careful in differentiating associations between people. I do not need to take your Honours to it but in section 102.8 of the Criminal Code, the offence of associating with terrorist organisations – an element of that offence is intentional association with another person and exception is created for associations with close family – which is, in turn, defined to include spouses. One sees a similar structure in section 105.34 and section 390.3.
So, in terms of the broader context of the Act as a whole, the Parliament – it is consistent with the Parliament having treated the concepts of persons – or the concept of a person doing something with another person as generic and when spouses and other family members are excepted, they are excepted expressly.
EDELMAN J: Did all of those provisions exist at the same as 11.5?
MR FREE: No, they did not, your Honour, but in that regard we invoke the principle considered in this Court in the Commissioner of Stamps v Telegraph Investment Co 184 CLR 453 at 463 and 479, where the Court in that case explains that where an Act is subsequently amended, the subsequent amendments are intended – or are treated for interpretative purposes as a re‑enactment of the Act as amended in its entirety and that when one comes to consider the context of an Act, from time to time the context is effectively reaffirmed or restated, including by virtual amendments of that kind.
So, your Honours, those are points of context that we would say tell against the appellant’s construction. We say on the context that – sorry, on the text, that the appellant’s construction is ultimately impossible to reconcile with the text. They cannot give the words which are in fact used in 11.5 work to do in a way which is meaningful or grammatically open.
Your Honours, the extrinsic materials we have referred to in our written submissions plainly support the construction which the Court of Criminal Appeal arrived at. There is no doubt that recourse to the Gibbs Committee report and the final report of the Model Criminal Code Officers Committee is both of assistance and doctrinally appropriate.
The Court has on a number of recent occasions emphasised that interpretation of words by reference to context must include context in the wider sense and consideration of context from the outset – I do not need to take your Honours to it, but just to give you the reference that was considered most recently, for example, in R v A2 (2019) 93 ALJR 1106, that was the genital mutilation case, it was considered at paragraph 32 in the judgment of your Honour the Chief Justice and Justice Keane, at 125 by Justice Gageler and 163 by Justice Edelman. So, on common law principles, we say there is no doubt recourse should be had to this material. If recourse is needed to the Acts Interpretation Act, we would say that it is reinforced by section 15AB(1).
The Court in LK gave considerable attention to the legislative history and to the work of the Gibbs Committee and the Model Criminal Code Officers Committee reports. So, it was clearly treated as a relevant aspect of context there. When regard is had to context here, there is absolutely no doubt about the conclusions of those committees and the intention underpinning the drafting.
If I could ask your Honours to go – in volume 5 of the book of authorities, the Gibbs Committee report is behind tab 49, and within the Gibbs Committee report internal page 382 – the continuous numbering is a bit obscure – but at 1636, the report at paragraph 39.3 deals with this topic of spousal immunity from the common law offence of conspiracy:
At common law there can be no criminal conspiracy if the only two parties to the agreement are husband and wife. 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.
The conclusion of the committee developed in 39.4 through to 39.7 was against any provision to the effect that there may be – sorry, the conclusion in 39.7 was a recommendation:
that the consolidating law should contain a provision to the effect that there may be a conspiracy to which the only parties are spouses.
So there it was put in terms of a positive recommendation as to the contents. The Model Code Committee, the report of which is behind tab 48, deals with this topic from the bottom of page 1608, and their conclusion is quite emphatic:
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.
So that is a reference there to the draft they were proposing:
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 -
and there is some reference to the Queensland Code and Tasmanian Code being outdated for taking the “common law position”.
So, the approach of the Model Code Committee, consistent with the principles of codification, we would submit, is that the absence of protection in the Code – so no protection is provided – would, in the context of a general provision, have the effect of there being no exception for spouses. That is consistent with, we would say, the way the Code works but also with the fact that at that stage those jurisdictions that had codes specifically providing for the protection of spouses did so by express provision. That was the reference to Queensland and Tasmania.
GAGELER J: The next page is blank in the version we have. Is that so in the original? Do you know?
MR FREE: Yes, I am told that it is. Mine is in the same state, your Honour.
GAGELER J: Thank you.
MR FREE: So, your Honours, that is what we would say about text and context. Can we turn to make some remarks about LK, and how it should properly be understood. Obviously enough the issues in LK did not present anything going remotely near this question that is before the Court today. The issue in that matter was resolved through the understanding of the word “conspires” as informed by the common law, and there was no question of whether it be framed as an immunity or a defence or any special capacity of particular parties to conspire.
Paragraph 131 is important. Our learned friends seek to now treat that as, as they put it, a footnote to 107, but it had featured rather prominently in their submissions. Can we ask your Honours just to go to 131? The appellant places particular reliance in 131 to the sentence just after halfway down. So section 11.5(1), 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 the Act are not otherwise addressed in s 11.5.
The next sentence is important:
These may be taken to include the parties to the conspiracy and the sufficiency of their dealings to constitute the agreement.
We would ask your Honours to pay attention to the authorities which are cited, because although of course it is important not to read this paragraph or any part of the judgment as if it is a statute, when you follow through the authorities, in our submission, it is clear what their Honours in the joint judgment were referring to in relation to the aspects of the parties to the conspiracy on the one hand and the sufficiency of their dealings to constitute the agreement.
The first - if I could deal with them in reverse order, the reference to Gerakiteys (1984) 153 CLR 317 – if I could ask your Honours to go to that, that is in the same volume of authorities at tab 16. The headnote is a good guide to the reason why the notion of parties to a conspiracy was significant, and why the sense in which, in our submission, their Honours were referring to that. There the particulars of the Crown charge were that G and H, and nine other persons were parties to a conspiracy, but the evidence ultimately showed that while G and H had an arrangement, and there were four other similar arrangements involving other parties, there was no arrangement that included all nine claimants and that was the point on which the appeal turned there.
So in our submission, the reference – the link between the common law meaning of “conspire” and this notion of the parties to the agreement, is that the proper understanding of what it means to conspire will necessarily inform the question of, which is the criminalised agreement, and who are the parties to that agreement? It is not a concept in any way concerned with capacity of people to conspire, which is really what the common law rule our friends would invoke is concerned with.
The other reference that their Honours gave in paragraph 131 was to R v Orton [1922] VLR 469 at 473. Can I ask your Honours to go to that please, it is in the third volume of authorities behind tab 38. So within the report, it is page 473 in the joint book collection, page 1010, and picking up the judgment of Justice Cussen, towards the bottom of the page on 473 of the report, Justice Cussen said:
An agreement which may form the foundation for a charge of conspiracy need not possess all the formalities of an ordinary contract. But there must be at least on the part of each of the alleged conspirators a conscious understanding of a common design. It frequently happens that conspiracy cannot be proved by direct evidence, and then it is a matter of inference to be deduced from the acts of the accused done in pursuance of a criminal purpose in common between them, and notwithstanding that all are not acting in the one place, or even, as has been said in some cases, they have never met.
Your Honours, we have not included in the authorities – just coming back to LK at 131 ‑ the other reference there is to an article:
Orchard, “‘Agreement’ in Criminal Conspiracy – 1” [1974] Criminal Law Review 297.
We have not included that article in the materials but I can tell your Honours that it is an analysis of the kinds of considerations that arose in Orton about what is the nature of the interaction between people that suffices to constitute an agreement, how is it proved and what are the inferences that can be drawn, et cetera.
So those references in our submissions make clear that that sentence in 131 is not to be read as widely as our friends, at least in their written submissions, would have it as importing all of the common law’s understanding insofar as it might bear on parties to a conspiracy. No such argument was raised in LK. It is not, in our submission, sensibly to be understood as an authority where the section refers to “conspires”, and that is to take its common law meaning that imports all of those rules.
So for those reasons, in our submission, LK simply did not determine the issue which is before the Court. It would not be treated as an authority from which your Honours need to depart on this question of the incorporation in the Code of the common law rule.
In the final alternative we would say, if your Honours say that all of that was imported through what their Honours concluded, and all of that was imported because of the effectively common ground that the word “conspires” took its common law meaning, then your Honours would treat that as effectively ultimately based on a point that was not argued, and it would not have weight, and your Honours would depart from it if you were otherwise persuaded to do so.
Can we say something briefly, your Honours, about the three key overseas authorities that our friends have placed some reliance on, starting with McKechie in the New Zealand Court of Appeal. That is in volume 3 of the authorities behind tab 37. An important feature of this case is that the Code which was being applied there – or the statute, rather, the Crimes Act 1908 (NZ), expressly preserved common law defences.
Your Honours see that in the judgment at page 12 of the report, so page 998 in the collection of materials. In the judgment of Justice Reed who delivered the judgment of the majority, there is reference made to section 40. Section 40 is set out, and then his Honour explains two‑thirds of the way through the paragraph:
Section 40, therefore, authorizes the common‑law defence to a charge under s. 219 unless the common law is altered by the statute or is inconsistent with it. The statute does not in terms alter the common law, nor is it inconsistent with it; on the contrary, it is in accordance with the common law that there should be two persons to constitute a conspiracy. But 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. There is no presumption that the Legislature, in passing a new statute, intended to abrogate the existing common law –
So it was framed because of the way the statute there worked, as construing the statute as a whole, the continuing operation of a common law defence, which was read as compatible with the language of the statute because, as the majority analysed it, effectively applying the unity doctrine, married people are not two people, they are one, and therefore could not commit the offence.
Kowbel in the Supreme Court of Canada, to which some reference has already been made – that is in tab 27 of the same volume ‑ it had a similar arrangement. The offence was under section 573, and as Justice Taschereau noted on 499 of the report, page 818 of the materials, about point 8:
It is trite law that husbands and wives may invoke not only the defences afforded to them by the Code, but also all the other defences known to the common law, which were in force in 1892, unless they are inconsistent with some dispositions of the Code. (Criminal Code, section 16).
So there, there was a preservation of common law defences and your Honour Justice Gageler has already referred to how that common law rule was understood by the majority in Kowbel. It was that a husband and wife could not be guilty of conspiracy because judicially speaking they form but one person and are presumed to have but one will, which is an accurate reference back to the description in Hawkins.
Finally, in this context, can we – I am reminded by Mr Prince, on the next page, 500, in Kowbel, page 891 of the materials, the paragraph beginning “I do not think”:
I do not think that the words “every one” found in section 573 dealing with conspiracy include husbands and wives any more than they include children under 7 years of age or insane persons. These words are defined in section 2(13), and they apply only to persons in relation to such acts and things as they are capable of doing. The incapacity to conspire is not statutory, but it is one of those old common law defences, which an accused person is at liberty to raise before the courts of this country.
So coming back to your Honour Justice Edelman’s questions earlier about the character of the common law rule, it is described somewhat variously in these authorities but there is analysed in terms of an incapacity but also that by virtue of that incapacity, it created a defence.
Your Honours, Mawji in the Privy Council in volume 3 of the authorities, tab 28. The Code there was slightly different, in that it did not have a specific preservation of common law defences but as your Honours see in the head note on the first page the Code had a clause saying:
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 the application of the Code, having regard to the common law rule, is addressed in the judgment on page 134. So 134, the second full paragraph states what the common law rule is. And we would pause to note, coming back to some of the observations your Honour Justice Gageler and Justice Gordon made in the course of our learned friend’s argument, the rule is stated in a way where the rule and its justification are indivisible. So the Privy Council said:
The rule is stated in Archbold’s Criminal Pleading . . . “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.
And there is some further analysis of the historical records bearing that out. And the conclusion of their Lordships, towards the bottom of the page, the fourth last line:
Their Lordships are of [the] 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.
So accepting that their Lordships analysed it there with reference to both the notion of conspiracy and persons, we would say in context, the reference to the words “conspires” and “conspiracy” in the English criminal law, much like the various textbooks that our learned friends have cited in their footnote in their reply, is an expression of the ultimate operation of the rule, that is, by virtue of the rule, husband and wife alone cannot be guilty.
EDELMAN J: What do you say the nature of the rule is? I mean, is it a rule that tells people what the elements of conspiracy are? In other words, a rule that says, “You need more than one person to be a party to a conspiracy”? Or is it a rule that is an immunity once all the other elements of the conspiracy are made out? Or is it some other form of defence?
MR FREE: Well, your Honour, we would say the only way of understanding it coherently in the history of the common law is that it operated upon husbands and wives because they were only one person and, by definition, one person cannot conspire with themselves. The effect of that may be to create an immunity from committing the offence.
EDELMAN J: There would only be an immunity if the offence had been made out, and if there is only one person, the offence has not been made out.
MR FREE: Yes. It may be that for that reason, it is not properly analysed as an immunity or defence as such. Part of the complication is that the same two people, when you add in a third person, can be guilty of a conspiracy. Now, that is one of the reasons why we would say the only way of coherently understanding all of that is that they become – you have the requisite number of parties once you get to the third person.
EDELMAN J: So if you change the rationale for the rule, it is no longer a rule that is about required elements of the offence and it becomes a rule outside conspiracy, of when parties are immune from liability for conspiracy.
MR FREE: Yes, that would seem to follow, your Honour. Now, your Honours, we say the authorities do not provide any support on the construction of the Code to our learned friends. We have addressed on the way the Code ought to be construed and addressed why LK does not assist. In our submission, that is effectively the end of the appeal.
But if your Honours are against us to the extent of saying the Code on its proper construction would import the common law rule had it existed, that is when the point arises that we would submit applying the kind of approach taken in PGA v The Queen, your Honours would conclude that the common law rule had ceased to exist by the time the Criminal Code was enacted in 1995.
Now, that would be the only determinative date, for the purposes of the appeal. As far as the historical account goes, the developments we would point to, we would submit, had completed by at the latest 1975, and the passage of the Family Law Act. So I have made the logic of our analysis to suggest that it ceased to exist by some earlier date but the issue which is decisive would be the date of the making of the Criminal Code.
Our learned friends, in parsing paragraph 30 of PGA v The Queen, seek, in our submission, to read it too narrowly in suggesting that there is some technically confined category of rules, and that we must characterise the unity doctrine as a rule in order to come within the reasoning in PGA v The Queen. In our submission, that is not a fair reading of PGA v The Queen where the majority in paragraph 30 said:
where the reason or “foundation” of a rule of the common law depends upon another rule which, by reason of statutory intervention or a shift in the case law, is no longer maintained, the first rule has become no more than a legal fiction –
We would say that description is entirely apt in – translated to a closely related context. The analysis in PGA, in particular the reference by the plurality to the changing nature of marriage – and there is the quotation in paragraph 59 from what the Supreme Court of New Jersey had said about marriage moving from a medieval concept of indefinite, irrevocable consent to a more modern conception where consent to be married and consent to sexual intercourse can be revoked has significant resonance in our context.
What we point to is that the law’s conception of the state of marriage, and in particular of the position of women in marriage, has changed since the 14th century in ways that are fundamental and, in particular, make the unity doctrine unsustainable and, properly understood, this rule has no independent existence without the unity doctrine.
The effectively historical question of, is it accurate to say that the common law rule was tied and always tied to the unity doctrine? In our submission, there is only one possible answer to that question. All of the materials analysed in these cases and in the texts demonstrate that the origin of the rule was the notion that because husband and wife are esteemed but one person in the law, then they could not conspire with each other.
GAGELER J: What about this new English public policy we were taken to?
MR FREE: Is your Honour referring to the Midland Trust?
GAGELER J: Yes.
MR FREE: Can I come to that immediately, your Honour. That is really not only the high point of our learned friend’s submission, that is the only source they can point to outside of what are merely considerations in Law Reform Commission reports, which ‑ and I am not suggesting that critically at all ‑ the task of a Law Reform Commission reports in analysing whether or not a particular rule should be preserved or not is to consider potential arguments for and against, to record potential arguments for and against. None of the Law Reform Commission reports purport to be an historical explanation of why the rule exists, and they do not even purport to say that it has assumed a separate justification.
Midland Trust, it is important to understand the context in which it arose. By that time, the criminal conspiracy immunity – I should perhaps refrain from using that word – the rule that a husband and wife alone could not commit the crime of conspiracy have a statutory basis. So the England and Wales Law Reform Commission had made a recommendation that it be given statutory force; that was given effect to, and in section 2(2)(a) of the Criminal Law Act 1977, the rule was given statutory foundation.
The Law Reform Commission subsequently reached the opposite conclusion, and it was repealed in the UK, but that was the state of play when Midland Trust was decided. So what Justice Oliver was doing, as a step in reasoning to whether the tort of conspiracy should have a recognised equivalent rule for husbands and wives, was seeking to rationalise the existence of a rule which by that time had a statutory foundation. It is true some of the reasoning – I am sorry, your Honour.
EDELMAN J: Mr Free, the statutory foundation was an immunity, was it not? The statutory foundation, or the statutory rule in section 2(2) was a rule that effectively said, “If all the elements of conspiracy are met, then there is no liability if you are in a marital relationship”. So it was not about elements or parties; it was about an independent rule for when there was an immunity for conspiracy.
MR FREE: Yes. I accept that, your Honour. Now, what Justice Oliver was seeking to do was, as a step to the argument that there should be some recognition by analogy in the tort of conspiracy, seeking to rationalise the existence of a rule in the criminal law which by that stage had moved into statute.
It is true some of his analysis talks about the common law rule as well as the statute, but it is slightly peculiar in that it is, by that stage, trying to rationalise something which the Parliament had enacted. It does not purport to be an historical account of why the rule existed at common law.
There is no reference by Justice Oliver or any of the judges on appeal to the origins of the rule to say, properly understood, it had a wider basis than the unity doctrine. It is really an attempt to rationalise the ongoing existence of a rule, in circumstances where Justice Oliver has, with all three of their Lordships on appeal, considered the unity doctrine to be completely indefensible as an ongoing justification.
And so it is really quite far removed from certainly any historical proposition that the common law criminal rule has a wider justification or was derived from wider considerations than the unity doctrine. I am reminded by Mr Prince to I think correct something I said a moment ago. The Law Reform Commission in England and Wales has recommended the abolition of the rule in 1989, but that was not acted upon. I think I said it was, but it has not been acted upon.
So, your Honours, what you are left with is no substantial submission that, properly understood, the foundations of this common law rule went wider than the unity doctrine. Instead our friends are driven to what we would suggest is just an attempt to resuscitate the rule with new public policy justifications, but we do not think that is a valid exercise, and it runs counter to the way the treatment of the common law was dealt with in PGA.
We do say, if it matters, the justifications which are now advanced, including in Justice Oliver’s judgment, do not withstand scrutiny. The notion that abolishing the rule might discourage marital confidences, the notion that abolishing the rule might expose spouses to undue pressures, those notions are impossible to reconcile, we would say, with the state of the law more broadly where the law does not recognise any privilege relating to marital communications.
This Court held in Stoddart there is no such thing as a common law privilege against spousal incrimination. The laws of evidence have changed in relation to the competence and compellability of husbands and wives in the criminal sphere. There can be accessorial liability for husbands and wives in relation to what might be entirely private dealings between them, if they are criminalised.
The idea that conspiracies exist in a separate sphere, and that criminalising the conspiratorial conduct of a husband and wife would interfere with marital confidences and expose them to pressures, et cetera, would just be completely inconsistent with the state of the law more broadly, so the rule cannot be resuscitated on that kind of basis.
KEANE J: In Australia, after the passing of the Evidence Act, marital confidences ceased to be a basis for holding that a wife was not a competent witness against a husband.
MR FREE: Indeed.
KEANE J: And in many circumstances, a wife may be compellable.
MR FREE: Yes, your Honour.
KEANE J: The idea that there is some privilege or importance attached to marital confidence has been abrogated by statute.
MR FREE: Yes. We respectfully agree, your Honour. It comes back to the point I made earlier in exchange with his Honour Justice Edelman – that perverse though the unity doctrine was, it at least had some logical coherence in producing this notion that, “Well, if you are only one person, you cannot agree with yourself”.
KEANE J: Yes, if you accept the premise, it is perfectly logical.
MR FREE: Yes, hence, your Honour. But once you take away the premise, the rule cannot be sustained in a way which is logically coherent with the law’s treatment of husbands and wives more generally. Now, your Honours, on the related point about the changes in the – I am sorry, your Honours.
Coming back, the other reference our learned friends do rely on is the consideration of a different rule in Tooth v Tillyer, where there was not close analysis of the underlying doctrine, but a suggestion that it might be something other than the unity doctrine. In our submission, that has been squarely dealt with by this Court in Magill v Magill (2006) 226 CLR 551. We have given your Honours that as an additional authority this morning – I hope it has found its way to your Honours.
Beginning in paragraph 53, Justices Gummow, Kirby and Crennan looked at the same rule that had been in issue in Tooth v Tillyer about spousal torts. The issue in Magill v Magill was the tort of deceit. Their Honours refer to that, having appeared first in:
England at the end of the eighteenth century. At that time, an action in tort of the nature of that between the present appellant and respondent would have been unthinkable for various reasons. First, no act committed by one spouse against the other during marriage could be a tort: the reason, affirmed as late as 1876, was the fundamental and general principle of the common law that spouses “are one person”.
So there their Honours have squarely accounted for the rule in that way. They go on to talk about some anachronistic old rules about the law of evidence, and certain evidence which could not be given about bastardising children. Then in 55 their Honours say:
Statute has intervened. That part of the law of evidence is no more. Nor is the common law principle respecting the single legal personality of spouses.
So the tentative suggestions in Tooth, in our submission have been dispelled by the Court in Magill.
Their Honours in Magill also – and there is a lengthy account in the judgment of Justice Heydon about the various legislative changes through the Family Law Act and other statutes to change the position of women in marriage, in particular from paragraph 192 onwards. I do not need to take your Honours - Mr Prince reminds me I should also take you to paragraph 95 in the judgment of Justices Gummow, Kirby and Crennan. In fact, beginning in 94, their Honours refer to section 119 of the Family Law Act:
“Either party to a marriage may bring proceedings in contract or in tort against the other party.”
Their Honours in 95 say:
The effect of s 119 is to abrogate rules applied at common law which flowed from the common law premise that husband and wife were one, to which reference has been made earlier in these reasons. The premise included the claim for a tort committed by one spouse against the other during or before the marriage. This spousal immunity from tortious claims has been progressively abrogated in Australia (following earlier legislation enacted in the United Kingdom).
We have referred in our written submissions to earlier colonial legislation which had dealt with dismantling other aspects of the law’s historical conception of the state of marriage and the state of women in marriage. So late 19th century legislative changes gave women the ability to:
acquire, hold and dispose of property –
if they were married, the ability:
to sue and be sued in her own name, to contract in her own name and to be made bankrupt.
So our learned friend’s suggestion, with his analogy about the law of equity and the statute which might pick away at certain aspects of the underpinnings of the rules of equity is, with respect, not an apt comparison. As the Court found in Magill in that context, similarly in PGA in a different context and here, a different but closely related context, there have been fundamental conceptual changes in the entire notion of marriage, and the status of married people which makes the unity doctrine untenable - I think our friend ultimately conceded as much today. So you are then left with a rule with no plausible justification, certainly no continuing justification on its historical roots.
Your Honours, that just leaves finally the question of relief. If your Honours were otherwise against us, and the appeal were to be allowed, the conviction of course should be quashed, and the only question would be whether there should be an order for a retrial or an acquittal. The Court addressed recently in R v A2 that that is effectively a binary choice – there is no third option.
In our submission, it would not be appropriate to order an acquittal in the circumstances of this case. There is a meaningful prospect of retrial – potentially on an amended indictment. As your Honours know, the conspiracy alleged here spanned before and after the marriage ceremony, so there is potential for an amended indictment. We accept that would involve an amendment.
But there is also scope, as your Honours may know from the judgment of Justice Fagan, there has not in fact been findings that there was
a marriage effective to constitute a valid marriage. As his Honour Justice Fagan recognised, that would have to be an issue put to the jury. The prosecutor would have to make a decision about the state of the evidence on that question as to whether, if there were to be a retrial, it would be on effectively the same charges.
The sentence has been served, we accept that. But as your Honours know, including from references to provisions on the construction aspect of this case, there is a control order regime which is triggered by the commission of offences of this kind, so there is an ongoing significance to the conviction. All of those are things which the prosecutor would have to weigh in the discretion about whether or not to re‑try. So if your Honours had reached that point, in our submission the appropriate order would be re‑trial. If the Court pleases, those are our submissions.
KIEFEL CJ: Mr Reynolds, how long would you be in reply?
MR REYNOLDS: I would finish in 10 minutes, perhaps five.
KIEFEL CJ: We will sit on then.
MR REYNOLDS: Can I just deal with the point my learned friend finished on, namely whether there should be an order for a new trial. The only submission I directed myself to was the one in paragraph 18 of our outline, which is responsive to the submissions my learned friend made in writing about the basis for a new trial, about running a new case.
My learned friend in his written submissions did not advance an argument that there should be a new trial, because in Justice Fagan’s judgment there was an issue that had been highlighted about whether it had been proved that there was a valid marriage ceremony. Can I just respond to that aspect of things. I do not know if your Honours have got Justice Fagan’s judgment, but can I just give your Honours the references to paragraph 29. He said in that paragraph:
that the Crown “probably could not disprove” that a [valid] marriage –
occurred “on 30 December 2015”. Now, as to this second argument my learned friend puts as to new trial, we submit that as a matter of discretion, in light of that statement, your Honours would not order a retrial because of what Justice Fagan said, namely that the Crown probably could not disprove that a valid marriage had in fact occurred.
Now, there are only a couple of other things that I would raise. The first is, my learned friend took your Honours to Magill v Magill. Can I refer
your Honours also to the last eight lines of paragraph 35, which talks about the Family Law Act protecting the institution of marriage, and that being:
a legislative expression of public policy.
And referring to what would:
be contrary to that policy.
So I would ask your Honours to factor in that, on the issue of policy.
The final point that I would raise is this. I was anxious, as your Honours will have noted, to formulate responses specifically to what I call the PGA paragraph 30 argument. However, at a couple of occasions ‑ and I just want to bring this to your Honours’ attention ‑ my learned friend slid outside paragraph 30 and he twice talked about changes in circumstances in relation to the position of women.
Now, I would make two points about that. The first is that that does not comport with the submission that needs to be made in relation to PGA 30. But perhaps, more importantly, if your Honours go to paragraph 16 of our reply where we summarise the effect of Lamb v Cotogno, the last three lines note that: the maxim is not a licence to courts to change the common law rule if it appears to them that the circumstances in which it was framed have changed.
If the Court pleases, those are my submissions.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.
AT 12.54 PM THE MATTER WAS ADJOURNED
- AGLC
- Namoa v The Queen [2021] HCATrans 40
- Case
- [2021] HCATrans 40
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character, which the applicant argued was unfairly prejudicial and should have been excluded under s 137 of the *Evidence Act 1995* (NSW). A further issue concerned the proper application of the "tendency evidence" provisions of the *Evidence Act 1995* (NSW), specifically whether the evidence of prior convictions was admissible to prove a tendency to commit the offence charged.
The High Court held that the evidence of prior convictions was not admissible to prove a tendency to commit the offence charged, as it did not establish a sufficient degree of relevance or probative value for that purpose. Furthermore, the Court found that the prejudicial effect of admitting the evidence of prior convictions and prior bad character substantially outweighed its probative value, and therefore, its admission under s 137 of the *Evidence Act 1995* (NSW) constituted a miscarriage of justice. The Court allowed the appeal, quashed the conviction, and ordered a new trial.
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