Association offences (Conspiracy)

Question 1

What are the elements of conspiracy?

Answer 1

• 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 2

What is the Section and Act for Conspiracy?

Answer 2

Section 310 Crimes Act 1961

Question 3

Mulcahy v R

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 does a conspiracy rely on?

Answer 4

A conspiracy does not simply rely on the intention of two or more people to commit an offence. It relies on the subjects (two or more of them) forming an agreement to do an unlawful act, or to do a lawful act by unlawful means. Where there is only the intention to commit the offence without an agreement, then no offence is committed.

Question 5

What is at the centre of a criminal conspiracy?

Answer 5

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 6

What is the essence of a conspiracy?

Answer 6

It is an agreement to pursue a course of conduct which, if carried out, would amount to the commission of an offence or involve the commission of an offence by one or more parties to the agreement.

Question 7

How does an omission result in a conspiracy to commit?

Answer 7

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

Question 8

What is an example of an omission?

Answer 8

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 9

What happens if someone withdraws from the agreement?

Answer 9

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 10

What is an example of effectively withdrawing from an agreement (conspiracy)?

Answer 10

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 11

When is the conspiracy complete?

Answer 11

The offence is complete on the agreement being made with the required intent. No further progression towards the completion of the offence, not further involvement by the parties involved in the agreement is required.

Question 12

What does case law R v Sanders outline?

Answer 12

When a conspiracy ends.

Question 13

R v Saunders - what does it state?

Answer 13

A conspiracy does not end with the making of the agreement.
It continues in operation and therefore in existence until it is completed or abandoned or otherwise discharged.

Question 14

What does the conspiratorial agreement require?

Answer 14

The operation of both the physical and mental faculties.

Question 15

What is the mens rea (mental intent) necessary for a conspiracy?

Answer 15

• 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 16

What is the actus reus (physical element) of conspiracy?

Answer 16

It 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 conspiracy.

Question 17

What if an attempt is made?

Answer 17

There is no requirement for the conspirators to actually carry out the illegal conduct on which the agreement is based. If this were the case it would likely equate to an attempt or the actual commission of the intended offence.

Question 18

What makes up the conspirators agreement?

Answer 18

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.

Question 19

What kind of agreement can be made for it to be conspiracy?

Answer 19

Express or implied agreement is sufficient.

A simple verbal agreement will suffice and there is no need for them to have made a decision on how they will actually commit the offence.

Question 20

What is not sufficient for a charge of conspiracy?

Answer 20

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

E.g. If “A” plans to commit an offence and “B simply knows that “A” has a plan, or was present when “A” discussed the plan, this is not enough for the charge of conspiracy.

Question 21

What must the mens rea be for conspiracy?

Answer 21

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

Question 22

When does someone do something intentionally?

Answer 22

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

Question 23

Define “intent”

Answer 23

An intention to commit the act with an intention to get a specific result.

Question 24

What is a “deliberate act”

Answer 24

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

Question 25

“Intent to produce a result” definition?

Answer 25

Specific result means “Aim, object or purpose”

Question 26

Who needs to prove intent ?

Answer 26

The onus is on the prosecution to prove intent beyond a reasonable doubt.

Question 27

What can support proof of the defendants intent?

Answer 27

Circumstantial evidence from which their intent can be inferred.

Question 28

R v Collister

Answer 28

Circumstantial evidence from which an offenders intent may be inferred can include;
- The offenders actions and words before, during and after the event
- The surrounding circumstances
- The nature of the act itself

Question 29

How is “two or more people” proved?

Answer 29

It is proven circumstantially. A person cannot conspire alone; there must be another conspirator for an offence to be committed.

Question 30

Who can be included in “Two or more people”?

Answer 30

This may include, as one of the parties, a person who is unable to carry out the substantive offence themselves.

Question 31

Whats an example of someone who is unable to carry out the offence being subject to conspiracy to commit?

Answer 31

This might be someone who has a physical impediment that does not enable the person to commit the substantive offence. Despite such an impediment it does not lessen their involvement in any conspiracy to which they are party.

Question 32

R v White

Answer 32

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 33

What circumstances may R v White relate?

Answer 33

It might relate to situations where a party to the conspiracy, whose identity is known, is unable to be located or where the party is unable to be brought to trial.

Question 34

Can you conspire with a spouse or partner?

Answer 34

As per S67 CA 61
A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse or civil union partner and any other person.

Question 35

“Offence” and “Crime” explained

Answer 35

Offence and crime are words that are used interchangeably in statute, and there is no material difference between them.

They may be described as any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories.

Question 36

“Act” defined

Answer 36

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

Question 37

“Omission” defined

Answer 37

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

Question 38

Jurisdiction - Section 7 Crimes Act 1961

Answer 38

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 NZ, the offence shall be deemed to be committed in NZ, whether the person charged with the offence was in NZ or not at the time of the act, omission, or event

Question 39

What does Jurisdiction under Section 7 Crimes Act (when broken down) mean?

Answer 39

That a person charged with conspiracy need not have been in NZ at the time of the act, omission or event.

It is an offence not only to conspire to commit an offence in NZ but also to conspire to do or omit in any part of the world, anything the doing or omitting of which would be an offence if done or omitted in NZ.

Question 40

Do all parts of the offence need to be committed in NZ?

Answer 40

No, some, perhaps almost all, may occur outside.

Question 41

What was deemed sufficient in R v Sanders?

Answer 41

It was deemed sufficient if one act or omission forming part of the offence or “any event necessary to the completion of any offence” occurs in NZ.

Question 42

What is the caveat on conspiracy entered into while overseas?

Answer 42

With regard to jurisdiction over conspiracy charges, it is only able to be acted on if the person who committed the conspiracy while overseas if they are later present in NZ and they act in continuance of the conspiracy.

Question 43

What did Poynter v Commerce Commission reinforce?

Answer 43

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

Question 44

Conspiracy to commit an offence overseas - what does this cover?

Answer 44

Under S310 of the CA 61, it is an offence to conspire to commit an offence or to do or omit to do anything, in any part of the world that would be an offence in NZ.

Question 45

Is there a defence to section 310 CA 61?

Answer 45

Yes. The person has a defence if they are able to prove that the act is not an offence under the law of the place where it was to be committed.

Question 46

What is an example of a defence against S310 CA 61?

Answer 46

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

Question 47

What did the court hold in R v Darwish in relation to conspiracy?

Answer 47

They held that where a conspiracy is made between parties in NZ and another country, the courts will likely take the view that the conspiracy was formed in both countries simultaneously, and given NZ is one of those countries, it would lie within the jurisdiction of the NZ courts.

Question 48

What is admissible as evidence against all parties charged with conspiracy?

Answer 48

Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved, this being an exception to the hearsay rule and as such conspirators should be jointly charged.

Question 49

When does Section 310 not apply?

Answer 49

For offences that contain specific provisions for conspiracy to commit certain offences.

Question 50

What are examples of Conspiracy offences that are specified in the Crimes Act thus 310 would not apply?

Answer 50

Treason, piracy, making false accusations, defeating justice, murder, Conspiring in relation to controlled drugs etc.

Question 51

What is the general principle of investigative procedure relating to conspiracy?

Answer 51

In a conspiracy investigation, ensure you interview everyone involved. People are often unfamiliar with the offence of conspiracy and may be more inclined to discuss the planning of offences and thus enable conspiracy charges to be filed where the substantive charge may not be proved.

Question 52

What to cover with witnesses when taking a statement in relation to conspiracy?

Answer 52

• The identity of the people present at the time of the agreement
• With whom the agreement was made
• What offence was planned
• Any acts carried out to further the common purpose

Question 53

What to cover with suspects when taking a statement in relation to conspiracy?

Answer 53

• The existence of an agreement to commit an offence OR the existence of an agreement to omit to do something that would amount to an offence, and
• The intent of those involved in the agreement
• The identity of all people concerned where possible
• Whether anything was written, said or done to further the common purpose

Question 54

What to consider when investigating conspiracy?

Answer 54

Whether to prepare and execute a search warrant to locate and seize evidence.

Also consider the use of electronic communications between the parties concerned as part of their planning, and therefore whether to intercept emails, text messages, telephone calls and messages posted on social media websites.

Question 55

When is electronic interception an option?

Answer 55

This is a possibility if the circumstances justify such actions

Question 56

When should conspiracy not be charged?

Answer 56

In circumstances where the specific (substantive) offence can be proved.

Question 57

Why is laying both a substantive charge and a related conspiracy charge undesirable?

Answer 57

Because:
- The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges
- The judge may disallow the evidence as it will be too prejudicial e.g. the jury may assume the defendants guilty knowledge or intent regarding the other charge and not look at the evidence, basing its assumption on the conspiracy charge.
- The addition of a conspiracy charge may unnecessarily complicate and prolong a trial
- Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed.
- Severance may be ordered. This means that each charging document may be heard at seperate trials.

Question 58

What is the exception to the rule against not charging for conspiracy and substantive offences?

Answer 58

If the substantive offence does not adequately represent the total criminality, you may need to include a charge of conspiracy.

Question 59

What’s an example of a situation where you could charge for conspiracy and the substantive offence?

Answer 59

Peter and George succeeded in burning down a warehouse. They then conspire to murder a witness to the arson. In this situation you would be justified in charging them with both the substantive arson offence as well as a charge of conspiracy to murder, in relation to the witness

Question 60

What must be sought before a conspiracy charge is filed?

Answer 60

Supervisor approval.