Conspiracy

Question 1

Define conspiracy

Answer 1

An agreement between two or more people to do an unlawful act or to do a lawful act by unlawful means.

Question 2

Withdrawing from an agreement and liability

Answer 2

A person withdrawing from the agreement is still guilty of conspiracy, as are those who become party to the agreement after it has been made.

However, a person can effectively withdraw before the actual agreement is made.

Question 3

When does a conspiracy end?

(R v Sanders)

Answer 3

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 4

Actus Reus and Mens Rea of conspiracy

Answer 4

Actus Reus - The actus reus of conspiracy is the actual agreement by two or more people to carry out the illegal conduct.

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

Question 5

Circumstantial evidence for conspiracy

(R v Collister)

Answer 5

1. The offenders’ actions and words before, during and after the event
2. The surrounding circumstances
3. The nature of the act itself.

Question 6

Conspiring with a spouse

Section 67, Crimes Act 1961

Answer 6

A person is capable of conspiring with his or her spouse or civil union partner and any other person

Question 7

Define act

Answer 7

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

Question 8

Define omission

Answer 8

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

Question 9

Conspiracy entered into overseas

Answer 9

A person who has entered into a conspiracy overseas is amenable to the jurisdiction of New Zealand courts only if they are later physically present in New Zealand and they act in continuance of the conspiracy.

Question 10

Admissibility of evidence - Conspiracy

(exception to the hearsay rule)

Answer 10

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.

However, this does not include explanations made after the common purpose is carried out.

Question 11

Witnesses - Conspiracy Investigation Procedure

Answer 11

Interview and obtain statements covering:

1. Identity of the people present at the time of the agreement.
2. With whom the agreement was made.
3. What offence was planned.
4. Any acts carried out to further the common purpose.

Question 12

Suspects - Conspiracy Investigation Procedure

Answer 12

Interview the people concerned, and obtain statements to establish:

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

Question 13

Charging with both a substantive charge and a related conspiracy charge

Answer 13

Laying both a substantive and conspiracy charge is often undesirable because:

1. The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges.
2. The judge may disallow the evidence as it will be too prejudicial, i.e. the jury may assume the accused’s guilty knowledge or intent regarding the other charge and not look at the evidence.
3. The addition of a conspiracy charge may unnecessarily complicate and prolong a trial.
4. Where the charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed.
5. Severance may be ordered. This means that each indictment or information may be heard at separate trials.

Question 14

Mulcahy v R

Answer 14

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 15

R v White

Answer 15

We Haven’t Identified The Extras

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

Question 16

Two or more people

How proven, what if one or more parties are incapable

Answer 16

Proven circumstantially. A person cannot conspite alone, there must be another conspirator for an offence to be committed.

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

Question 17

Discuss jurisdiction in relation to charging with a conspiracy offence

Answer 17

For the purposes of jurisdiction, where any act or ommission 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.

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

It is an offence not only to conspire to commit an offence in New Zealand, 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 New Zealand. Not all acts or omissions forming part of the offence need be committed in New Zealand; some, perhaps almost all, may occur outside.

In R v Sanders, 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 New Zealand.

Question 18

When would a conspiracy charge under s310 not be applied in relation to a conspiracy offence?

Answer 18

Where a specific provision for conspiracy to commit the offence in question exists in the act (e.g. treason, making false accusations, defeating justice, murder)

Some such provisions exist in other legislation e.g. Conspiring in relation to controlled drugs pursuant to s6(2A) of the Misuse of Drugs Act 1975.

Question 19

Essence of Conspiracy

Answer 19

The essence of conspiracy 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 in the agreement.