Conspiracy

Question 1

What is the Liability for Conspiracy

Answer 1

Conspiring to commit an offence, Sec 310(1) CA 1961
1. Conspires
2. With any person
3. 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

Penalty: 7yrs if the max punishment exceeds 7yrs, in any other case same punishment if he committed that offence

Question 2

What is the definition of Conspires

Answer 2

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

Question 3

What is the case law relating to Conspires

Answer 3

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 rest in intention only it is not indictable. Where two agree to carry it (the intended offence) into effect, the very plot is an act in itself

Question 4

What is the definition of omission

Answer 4

The agreement between the parties concerned may also have as its object an omission (failure to act) as opposed to the commission of an offence.

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

Question 5

Explain withdrawing from an agreement

Answer 5

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 6

When is the offence of conspiracy complete?

Answer 6

The 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

Question 7

What is the case law relating to when a conspiracy ends?

Answer 7

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.

Question 8

What is the mens rea required for conspiracy?

Answer 8

• 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

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

Question 9

What is the actus reus required for conspiracy?

Answer 9

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.

There is no requirement for the conspirators to actually carry out the illegal conduct on which the agreement is based.

Physical acts, words or gestures used by the conspirators in making the agreement is what is to be considered in the actus reus of a conspiratorial agreement (whether this is an express or implied agreement)

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.

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

Question 10

Define intent

Answer 10

In a criminal law context there are two specific types of intention in an offence. Firstly there must be an intention to commit the act and secondly, an intention to get a specific result.

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

Intent to produce a result: The second type of intent is an intent to produce a specific result. Specific result “means aim, object, or purpose”.

Question 11

How is intent proven?

Answer 11

Circumstantial evidence from which an offender’s intent may be inferred can include:
• The offender’s actions and words before, during and after the event
• The surrounding circumstances
• The nature of the act itself
(R v Collister)

Question 12

Describe “two or more people” in relation to a conspiracy

Answer 12

A person cannot conspire 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

Question 13

What is the case law relating to two or more people?

Answer 13

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.

Question 14

Explain conspiracy relating to spouses and partners

Answer 14

Sec 67 CA 1961
A person is capable of conspiring with his or her spouse or civil union partner or with his or her spouse of civil union partner and any other person.

Question 15

What is the definition of offence?

Answer 15

Act or omission that is punishable on conviction under any enactment and are demarcated into four categories described in sec6 of the Criminal Procedures Act 2011

Question 16

Define act

Answer 16

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

Question 17

Explain jurisdiction relating to a conspiracy

Answer 17

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

Not all acts or omissions forming part of the offence need be committed in NZ; some, perhaps almost all, may occur outside.

Question 18

Explain conspiracies entered into overseas

Answer 18

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.

Question 19

What is the defence relating to conspiracies to commit an offence overseas?

Answer 19

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 20

Explain conspiracies between parties in NZ and any other country

Answer 20

R v Darwish 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

Question 21

Explain the admissibility of evidence relating to conspiracy

Answer 21

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. Then, the explanation is evidence only against the person making it.

Question 22

Explain conspiracy relating to specific offences

Answer 22

CA 1961 contains specific provisions for conspiracy to commit certain offences, such as treason, piracy, making false accusations, defeating justice and murder. There are also specific provisions for conspiracy contained within other Acts (eg MODA 1975). For such conspiracies, action is to be taken under the relevant sections. In all other cases sec 310 applies

Question 23

What is the investigative procedure for conspiracy relating to witnesses?

Answer 23

Interview and obtain statements covering:
• 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 24

What is the investigative procedure for conspiracy relating to suspects?

Answer 24

Interview the people concerned, and obtain statements, to establish:
• 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 25

What is the prosecution(charging) procedure relating to conspiracy?

Answer 25

Charges of conspiracy should not be filed in situations where the substantive offence can be proved.

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

Laying both a substantive charge and a related conspiracy charge is often undesirable because:
• The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to the 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. This means that each charging document may be heard at separate trials.