At the time immediately prior to the enactment of the Criminal Code Act 1995 (Cth), the common law of Australia did not recognise an immunity from prosecution for conspiracy for a husband and wife, even where they were the only alleged conspirators. The underlying 'one person' doctrine had ceased to be tenable by at least 1975. In any event, the language of s 11.5 of the Code is sufficiently clear to abrogate any such immunity: a husband and wife are each a 'person' within the meaning of the section. R v Byast and R v Won & Singh should not be followed on this point. Separately, evidence given by a co-accused at sentencing proceedings may constitute 'fresh evidence' on appeal, but will not give rise to a miscarriage of justice where the conspiracy charge does not depend on the specific terrorist act the co-accused claimed to have been feigning.
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