Conspiracy

Question 1

Liability - Conspiracy

Answer 1

Section 310(1)
Crimes Act 1961

• Conspires
• With any person
• To commit an 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

Question 2

Definition of Conspires

Answer 2

Two or more persons forming an agreement to do an unlawful act or do a lawful act by unlawful means.

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

Definition of Omisssion

Answer 4

Failure to act. Excluding or leaving out someone or something

Question 5

When can a person withdraw from the agreement

Answer 5

Before the actual agreement is made

Question 6

When is the offence of conspiracy complete

Answer 6

On the agreement being made with the required intent

Question 7

R v Sanders

Answer 7

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 8

Mens Rea and Actus Reus of conspiracy

Answer 8

Mens Rea
• 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 (mental intent to commit the full offence)

Actus Reus
• the agreement between two or more people to put their common design into effect (physical acts, words or gestures)

Question 9

Definition of Intent

Answer 9

There are two specific types of intention

• an intention to commit the act
• an intention to get a specific result

Question 10

How to prove intent

Answer 10

Onus on prosecution to prove intent

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

Question 11

Definition of person

Answer 11

Gender neutral. Accepted by judicial notice or proven circumstantially

Question 12

Can a person be guilty of conspiracy if they are unable to carry out the substantive offence themselves

Answer 12

Yes

Question 13

R v White

Answer 13

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 14

Is a person capable of conspiring with his or her spouse or civil union partner

Answer 14

Yes

Section 67, Crimes Act 1961

Question 15

Definition of Offence / Crime

Answer 15

Any act or omission that is punishable on conviction under any enactment

Question 16

Can a person be charged with conspiracy if they were not in NZ at the time of the act

Answer 16

Yes, if the doing or omitting of which would be an offence if done or omitted in NZ

Question 17

When can a person be charged if they enter into a conspiracy overseas

Answer 17

When they are physically present in NZ and they act in continuance of the conspiracy

Question 18

When is it a defence to a charge of conspiracy to commit an offence overseas

Answer 18

If they are able to prove that the act is not an offence under the law of the place where it was to committed

eg. Two people in NZ conspire to each take on a second wife in saudi arabia. Is an offence in NZ (bigamy) but not an offence in saudi arabia where you can have up to four wives

Question 19

Admissibility of evidence

Answer 19

Anything a conspirator or party to a joint charge shay 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 20

What 5 points should be covered when interviewing conspiracy suspects

Answer 20

• the existence of an agreement to commit an offence
• the existence of an agreement to omit or do something that would amount to an offence
• 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 21

What 4 points should be covered when interviewing conspiracy witnesses

Answer 21

• 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 22

Charging with conspiracy

Answer 22

Generally charges of conspiracy should not be file in situations where the specific substantive offence can be proved.

R v Humphries
It may be appropriate to include a charge of conspiracy where a charge of the substantive offence does not adequately represent the total criminality

Evaluation of evidence and supervisor approval should be sought before a conspiracy charge is filed

Question 23

What are the 5 reasons it is undesirable to lay both a substantive charge and a related conspiracy charge

Answer 23

• 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
• 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