Conspiracy Flashcards
Liability - Conspiracy
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
Definition of Conspires
Two or more persons forming an agreement to do an unlawful act or do a lawful act by unlawful means.
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 in itself
Definition of Omisssion
Failure to act. Excluding or leaving out someone or something
When can a person withdraw from the agreement
Before the actual agreement is made
When is the offence of conspiracy complete
On the agreement being made with the required intent
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 and Actus Reus of conspiracy
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)
Definition of Intent
There are two specific types of intention
- an intention to commit the act
- an intention to get a specific result
How to prove intent
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
Definition of person
Gender neutral. Accepted by judicial notice or proven circumstantially
Can a person be guilty of conspiracy if they are unable to carry out the substantive offence themselves
Yes
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 parties is never established and remains unknown
Is a person capable of conspiring with his or her spouse or civil union partner
Yes
Section 67, Crimes Act 1961
Definition of Offence / Crime
Any act or omission that is punishable on conviction under any enactment
Can a person be charged with conspiracy if they were not in NZ at the time of the act
Yes, if the doing or omitting of which would be an offence if done or omitted in NZ
When can a person be charged if they enter into a conspiracy overseas
When they are physically present in NZ and they act in continuance of the conspiracy
When is it a defence to a charge of conspiracy to commit an offence overseas
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
Admissibility of evidence
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
What 5 points should be covered when interviewing conspiracy suspects
- 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
What 4 points should be covered when interviewing conspiracy witnesses
- 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
Charging with conspiracy
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
What are the 5 reasons it is undesirable to lay both a substantive charge and a related conspiracy charge
- 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
