Hello, and welcome back to article four of Let’s Get Legal! Today’s article is written by Simeon and delves into the topic of criminal conspiracy. We hope you enjoy the article, and you can find a link to the entire series at the bottom of this post!


Conspiracy can be a complex crime to prove. Can someone mentioning committing a crime to their friend in a joking manner be perceived as conspiring to commit a crime? What if someone is being sarcastic, but that isn’t recognised by the other person? Conspiracy has many different levels and, without specific evidence, can be challenging to prosecute.

Criminal conspiracy is broadly defined as an agreement between two or more persons to commit a crime with the intention of carrying it out. The key phrase of this definition is ‘the intention to carry out the crime’; this aspect must be proven to constitute the necessary mens rea for the offence.

For someone to be found guilty of a crime, the mens rea and actus reus elements of the crime must be met unless it is a crime of strict liability (where mens rea does not to be proved). Mens rea refers to the guilty mind – the intention of the accused to commit the crime, whereas actus reus refers to the guilty act – the actual carrying out of the crime.

The rise of terrorist acts in Western nations, including Australia, has given rise to reform in terrorism legislation over the past couple of decades. Media pressure surrounding the perceived constant threat of terrorism to society has resulted in legislation extending beyond the terrorist act itself but including the discussion, planning, or preparation of a terrorist act as well.

The law has reflected society’s concerns regarding the risk of terrorism, and the recent judgment in the High Court of Australia demonstrates this theme.

The Case: Namoa v The Queen [2021] HCA 13 

Useful Details

– Date of Hearing: 11 March 2021

– Date of Order (Decision): 14 April 2021

– That main issue that the case aimed to address is whether spouses alone are able to conspire to commit a crime, in this situation, conspiring to do acts in preparation for a terrorist act

Initial Facts

– Alo-Bridget Namoa and Sameh Bayda were found guilty in 2018 of conspiring to commit random terror attacks on non-Muslims on New Year’s Eve in 2015

– The attacks never occurred; however, significant planning and discussion surrounding the incident took place between the couple

– During the trial in the Supreme Court, Namoa argued that a wife is immune from the charge of conspiracy with a husband

– The Supreme Court disagreed with this perspective, resulting in Namoa appealing the decision to the High Court.

The Law

The appeal concerns the interpretation of section 11.5 of the Criminal Code Act, which creates a statutory offence of conspiracy. The provision provides that conspiracy refers to:

  1. A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months…is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed

Moreover, the legislation details the elements of the crime by stating that for the person to be guilty:

  1. The person must have entered into an agreement with one or more other persons; and
  2. The person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
  3. The person or at least one other party to the agreement must have committed an overt act pursuant to the agreement

The Act continues by stating that a person may be found guilty of conspiracy to commit an offence even if the committing of the offence is impossible.

Present Case

The claim that the appellant consistently argued throughout the initial trial and appeal was the single personality of spouses. However, the judge clearly noted that there is no longer any principle in Australian common law respecting the single legal personality of spouses. The reference of a ‘person’ within the legislation includes two spouses.

The appellant relied upon the case of R v LK (2010) to demonstrate the single personality of spouses; however, the court found that the passages presented did not provide any guidance about any common law rule relating to spouses as an aspect of the common law meaning of conspiracy. The case did not address the presented issue, and therefore cannot be an authority that the definition of conspiracy incorporates such a rule.

Furthermore, the appellant relied upon a series of overseas case law to contend that the language of the Criminal Code Act does not expressly oust the common law position that spouses may constitute a single person. The New Zealand Court of Appeal decision in R v McKechie (1926) ruled that a husband and wife are not two persons, but only one, regarding a charge of conspiracy. This was consistent with other overseas case law, such as the Canadian case of Kowbel v The Queen (1954).

However, judge Gleeson noted that although these cases referred to the legal position of spouses, none of the cases concerned the meaning of conspiracy. The different statutory contexts of the decisions also impacted the judgements of the various courts. Judge Gleeson stated that these cases cannot support the appellant’s claim as in Australian common law, the rule that there can be no criminal conspiracy if the only two parties to the agreement are spouses is not incorporated into the offence contained in the Code by the words ‘conspires’ and ‘conspiracy’.  


The appeal was dismissed.

Concluding Thoughts 

The decision by the High Court of Australia has created a clear precedent concerning conspiracy. The other party involved in conspiring to commit a crime can include anyone. A spouse, brother, sister, cousin, colleague, or friend can all be considered a second party in the crime of criminal conspiracy.

This case also clarified that the relationship between a husband and wife does not constitute a single legal relationship, even if this was the case historically. This is an appropriate decision considering the context of relationships within today’s society. Marriage is a more flexible and volatile concept than it was a few decades ago, and it is no longer appropriate to provide married couples with an extra layer of protection. This is particularly relevant in cases relating to the preparation of committing a terrorist attack, which can have significant consequences and must be punished accordingly.

Any reference to a terrorist act can now place individuals under immense threat of incapacitation. Led by the concerns of society, the law is increasingly unwilling to fall on the gentle side in cases where the security of a nation is concerned. This is demonstrated by law reform such as the Terrorism (Police Powers) Act which allows individuals accused of committing or planning to commit a terrorist attack to be held in preventative detention for up to 14 days. There is an evident lack of the rule of law in these scenarios, but it is neglected intentionally to protect society from any possible threat.

In relation to conspiracy, the ramifications are clear. Government technology and intelligence will collect evidence, and any defence will likely fall short. However, when we consider terrorism legislation in general, is the abandonment of the rule of law acceptable to protect citizens from a possible threat?

Let’s Get Legal Series: https://thelevinelowdown.com/lets-get-legal-2/

Previous Let’s Get Legal Article: https://thelevinelowdown.com/2021/04/06/lets-get-legal-in-prison-forever/

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