Conspiracy Flashcards
Elements (5)
S 310, Crimes Act 1961
- 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 NZ would be an offence
Mulcahy v R
“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 itself…”
Essence of conspiracy as suggested in R v Greenfield
An agreement…
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.
Withdrawing from the agreement
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.
When is the offence complete?
R v Sanders - When does a conspiracy end?
Offence is complete on the agreement being made with the required intent.
No further progression towards the completion of the offence nor further involvement by the parties involved in the agreement is required.
R v Sanders:
“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.”
Mens rea (2)
- 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.
Offender’s mental intent must be to commit the full offence. Where this intent does not exist, no crime has been committed.
Actus Reus
What does/does not suffice?
The actual AGREEMENT by two or more people to carry out the illegal conduct.
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.
Simple verbal agreement will suffice. No need for them to decide how they will commit the offence.
Mere passive presence or knowledge of an intention does not amount to being party to a conspiracy.
Two or more people. Proven how?
Disabled?
Conspire with a spouse?
R v White
Proven circumstantially. A person cannot conspire alone.
A person may be unable to carry out the substantive offence themselves (disabled) but this would not lessen their involvement in a conspiracy in which they are a party.
S 67 - a person is capable of conspiring with spouse/partner, or with spouse/partner and another.
R v White:
“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 party is never established and remains unknown.”
Act
Omission
Act: to take action or do something, to bring about a particular result
Omission: the action of excluding or leaving out someone or something. A failure to fulfil a moral or legal obligation.
Jurisdiction
S 7, Crimes Act 1961
Where any act/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.
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
Conspiracy entered into overseas
Common Law rules
A person who has entered into a conspiracy overseas is amenable to the jurisdiction of NZ courts only if they are later physically present in NZ and they act in continuance of the conspiracy.
NZ courts have no jursidiction over a conspirator who enters into the conspiracy abroad and never comes to NZ.
Conspiracy to commit an offence overseas
S 310, Crimes Act 1961
It is an offence to conspire to commit an offence or do or omit anything, in any part of the world, that would be an offence in NZ.
Person has a defence if they prove that the act IS NOT an offence under the law of the place where it was to have been committed.
Conspiracies between parties in NZ and another country
As per R v Darwish
Courts will likely take the view that the conspiracy was formed in both countries simultaneously, and given NZ is one of those countries in which the conspiracy falls, it would lie within the jursidiction of NZ courts.
Admissibility of evidence
Must be a common aim to commit some offence and an intention that the aim is to be effected.
Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved (exception to the hearsay rule). Conspirators should be jointly charged.
This does not include explanations made after the common purpose is carried out. Then, the explanation is evidence only against the person making it.
Investigative Procedure
- Witnesses (4)
- Suspects (5)
- Search Warrants
Obtain statements from witnesses covering:
- identity of people present at time of agreement
- with whom the agreement was made
- what offence was planned
- any acts carried out to further the common purpose
Obtain statements from suspects covering:
- existence of an agreement to commit an offence, or
- existence of an agreement to omit to do something, which would amount to an offence, and
- intent of those involved in the agreement
- identity of all people concerned where possible
- whether anything was written, said or done to further the common purpose
Consider search warrants or SDWs. May want to intercept communications between parties.
