Conspiracy

Question 1

what are the elements of conspiracy

Answer 1

• 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 of in New Zealand would be an offence

Question 2

what is an example of an “omission” in a conspiracy

Answer 2

a security guard deliberately fails to lock a door that he would normally secure (the omission) with the aim being that his associates gain entry to commit a burglary (the offence)

Question 3

when can a person withdraw from the agreement

Answer 3

A person can withdraw from the agreement before the actual agreement is made.

Eg. three people decide to do a robbery, two decide to commit the offence and third person reconsiders and withdraws before the agreement is made

Question 4

when is the offence of conspiracy complete

Answer 4

the offence of conspiracy is complete when the agreement is 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 5

what is the mens rea necessary for a conspiracy

Answer 5

• an intent of those involved to agree; and

- an intention that the relevant course of conduct should be pursued by those party to the agreement

Question 6

what is the actus reus for conspiracy

Answer 6

the actus reus is the agreement between two or more people to put their common design into effect.

agreement can be made by physical acts, words or gestures, a simple verbal agreement will suffice

Question 7

what does not amount to being a party to a conspiracy

Answer 7

mere presence. if two people plan to commit an offence and person A knows that the offence was planned or was present when the plan was discussed, this is not enough to charge person A with conspiracy

Question 8

what is intent

Answer 8

intent is a desire to achieve a specific result, and acting with the aim and purpose of achieving it

it can be inferred from:

• offenders actions and words before, during or after offence
• the surrounding circs
• the nature of the act itself

Question 9

who proves intent and to what standard

Answer 9

the onus is on the prosecution to prove intent beyond a reasonable doubt

Question 10

s67 of crimes act 1961

Answer 10

conspiring with a spouse:

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

Question 11

what is the definition of act

Answer 11

to take action or do something, to bring about a particular result - oxford dictionary

Question 12

what is an omission

Answer 12

the act of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation - oxford dictionary

Question 13

s7 of crimes act

Answer 13

for purpose of jurisdiction, where any act or omission forming part of any offence or event necessary for the completion of any offence occurs in NZ the offence shall be deemed to have been committed in NZ whether person charged with offence was in NZ or not at the time of the act, omission or event

Question 14

can a person who has entered into a conspiracy overseas be liable for a conspiracy offence in NZ

Answer 14

a person who has entered into a conspiracy overseas is amenable to the jurisdiction of the NZ Courts only if they are later physically present in NZ and act in continuance of the conspiracy

poynter v commerce commission held that NZ courts had no jurisdiction over a conspirator who enters into a conspiracy abroad and who never comes to NZ

Question 15

what are two examples of s310

Answer 15

example 1:
Two people in NZ plan and agree to commit a bombing in Australia. They have committed a conspiracy and are able to be convicted in NZ despite the intended offence being offshore. They have no defence to the charge as Australian law covers acts such as bombings.

example 2:
Two people in NZ conspire to each take a second wife in Saudi Arabia, knowing that such activity would be unlawful in NZ if done here (bigamy). They are not subject to conviction in NZ as they have a defence to the charge. This is because Saudi Arabian law (Sharia Law) permits a person to have up to four wives.

Question 16

can the evidence of a co conspirator be used against others involved in theconspiracy

Answer 16

yes, anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against others involved, it is an exception to the hearsay rule and thus co conspirators should be jointly charged.

explanations made after the common purpose is carried out is evidence only against the person making it.

Question 17

what should be covered in the interviewing and statements of witnesses

Answer 17

interview and obtain witness 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 18

what should covered when interviewing suspects

Answer 18

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 19

r v darwish

Answer 19

where a conspiracy is made between parties in NZ and another country, the courts will view the conspiracy as being formed in both countries simultaneously and given NZ is one of the countries in which the conspiracy falls, it would lie in the jurisdiction of NZ courts

Question 20

why would laying both a substantive charge and a conspiracy charge be undesirable

Answer 20

• evidence admissible only on conspiracy charge may have prejudicial effect in relation to all other charges
• judge may disallow evidence as it will be too prejudicial as the jury may assume the defendants guilty knowledge or intent on the other charged without considering the evidence, basing its assumption on the conspiracy charge
• addition of conspiracy charge may unnecessarily complicate and prolong trial
• where charge of conspiracy is not founded on evidence or is an abuse of process, it may be quashed
• severance may be ordered, this means each charging document may be heard at separate trials

Question 21

explain liability of person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence

Answer 21

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 22

what was held in the case of r v mulcahy as it relates to conspiracy

Answer 22

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 cary it (the offence) into effect, the very plot is an act in itself

Question 23

when is the offence of conspiracy complete

Answer 23

when the agreement is made, accompanied by the required intent. it does not require any further progression toward its completion by those involved in the agreement

Question 24

what five points should be covered when interviewing conspiracy suspects

Answer 24

interview suspects to establish:

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