1. Conspiracy - legislation etc

Question 1

What is a conspiracy?

Answer 1

A conspiracy is an agreement between two or more people to commit an offence. This necessarily occurs before the principal offence is committed

Question 2

Outline conspiracy in s31091) CA61?

Answer 2

(1) Subject to the provisions of subsection (2) of this section, every one who conspires
with any person to commit any offence, or to do or omit, in any part of the world, anything of which the doing or omission in New Zealand would be an offence, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence exceeds 7 years’ imprisonment, and in any other case is liable to the same punishment as if he had committed that offence.

Question 2

What are the elements of conspiracy?

Must Know

Answer 2

The elements of the offence of conspiracy are:
* conspires
* with any person
* to commit any offence or
* to do or omit, in any part of the world,
* anything of which the doing or omission in New Zealand would be an offence.

Question 3

A conspiracy relies the subjects forming an agreement. What was held in Mulcahy v R?

Must Know

Answer 3

“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it (the intended offence) into effect, the very plot is an act in itself ….”

Question 4

What is at the centre of a criminal conspiracy?

Answer 4

At the centre of a criminal conspiracy is the plan (intended objective) of the parties concerned and the agreement or consensus of the two or more people.

Question 5

Can an agreement have as its object a failure to act?

Must Know

Answer 5

The agreement between the parties concerned may also have as its object an omission (failure to act) as opposed to the commission of an offence and as such this must not be overlooked.

Question 6

Provide an example of an omission?

Must Know

Answer 6

A security guard deliberately fails to lock a door that he would normally secure (the omission), with the aim being that his associates gain entry to commit a burglary (the offence).

Question 6

Can a person withdraw from a conspiracy?

Answer 6

A person withdrawing from the agreement is still guilty of conspiracy as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.

Question 7

Provide an exampl of withdrawing from an agreement

Answer 7

Three people intend to commit a service station robbery. The first two parties agree that they, collectively, will commit the offence while the third reconsiders and withdraws before the agreement is made. The first two are co-conspirators but because the third withdrew before the agreement was made the third party would not be liable.

Question 8

What was held in R v Sanders regarding when a conspiracy ends?

Must Know

Answer 8

“A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged”.

Question 9

The conspiratorial agreement reqruires the operation of both physical and mental faculties. What is the mens rea necessary for conspiracy?

Must Know

Answer 9

• an intention of those involved to agree, and
• an intention that the relevant course of conduct should be pursued by those party to the agreement

Question 10

Whtat is the actus reus of a conspiracy?

Answer 10

The actus reus (physical element) of conspiracy is the agreement between two or more people to put their common design into effect. The agreement must be made before the commission of the acts which make up the full offence and the object of the conspiracy.

Question 11

What would constitute actus reus of conspiracy?

Answer 11

The physical acts, words or gestures used by the conspirators in making their
agreement is what is to be considered the actus reus of a conspiratorial agreement (whether this is an express or implied agreement).

Mere passive presence or knowledge of an intention does not amount to being a party to the conspiracy

Question 12

What is the mens rea required for a conspiracy?

Answer 12

The offenders’ mental intent must be to commit the full offence. Where this intent does not exist no crime has been committed.

Question 13

When does a person to do something intentionally?

Must Know

Answer 13

A person does something “intentionally” if they mean to do it; they desire a specific result and act with the aim or purpose of achieving it

Question 13

What is intent in a criminal law context?

Answer 13

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

Question 14

What is a deliberate act as it relates to intent?

Must Know

Answer 14

“Intent” means that act or omission must be done deliberately. The act or
omission must be more than involuntary or accidental.

Question 15

What is an intent to produce a result as it relates to intent?

Must Know

Answer 15

The second type of intent is an intent to produce a specific result. Specific
result“means aim, object, or purpose”.

Question 16

R v Collister discusses intent that is inferred form the circumstances. What does this include?

Must Know

Answer 16

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself

Question 17

What was held in R v White in relation to two or more people?

Must Know

Answer 17

Where you can prove that a suspect conspired with other parties (one or more people) whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.

Question 17

What is an act?

Must Know

Answer 17

To take action or do something, to bring about a particular result

Question 18

Define omission?

Must Know

Answer 18

the action of excluding or leaving out someone or something, a
failure to fulfil a moral or legal obligation

Question 19

Outline how the issue of jurisdiction is dealt with in S7 CA61

Answer 19

For the purpose of jurisdiction, where any act or omission forming part of any offence, or
any event necessary to the completion of any offence, occurs in New Zealand, the offence
shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.

Question 19

What was reinforced by Poynter v Commerce Commision regarding jurisdiction?

Answer 19

reinforced the position that New
Zealand courts had no jurisdiction over a conspirator who enters into the conspiracy abroad and who never comes to New Zealand

Question 20

Provide an example where conspiracy is committed by persons in NZ to commit an offence in another country?

Answer 20

Two people in New Zealand plan and agree to commit a bombing in Australia. They have committed a conspiracy and are able to be convicted in New Zealand despite the intended offence being offshore. They have no defence to the charge as Australian law covers acts such as bombings.

Question 21

Provide an example where conspiracy is not committed by persons in NZ for conduct in another country?

Answer 21

Two people in New Zealand conspire to each take on a second wife in Saudi Arabia, knowing that such activity would be unlawful in New Zealand if done here (bigamy). They are not subject to conviction in New Zealand as they have a defence to the charge. This is because Saudi Arabian law (Sharia Law) permits a person to have up to four wives.