Conspiracy

Question 1

Conspiracy

Section, Subsection, Act, Penalty, Elements

Answer 1

S310(1) CA61 - 7 Years Imprisonment (if penalty of that offence exceeds 7 years - otherwise same penalty)

• 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 in New Zealand would be an offence.

Question 2

Mulcahy v R

Answer 2

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 3

When is conspiracy complete

Answer 3

The offence is complete on the agreement being made with the required intent.

Of note: No further progression towards the completion of the offence, nor further involvement by the parties involved in the agreement is required. The conspirator do not have to be capable of carrying out the substantive offence.

Spouses or civil union partners are capable of conspiring together.

Question 4

R v Sanders

when a conspiracy ends

Answer 4

“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 5

Actus Reus of Conspiracy

Answer 5

The actual agreement by two or more people to carry out the illegal conduct.

Of note: 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. If “A” plans to commit an offence and “B” simply knows that “A” has a plan, or was present when “A” discussed the plan, this is not enough for the charge of conspiracy.

Question 6

Mens Rea of Conspiracy

The mens rea (mental intent) necessary for a conspiracy is:

Answer 6

• 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.

Of note: The offenders’ mental intent must be to commit the full offence. Where this intent does not exist no crime has been committed.

Question 7

Intent

Answer 7

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 (deliberate act) and secondly, an intention to get a specific result.

Proving Intent:

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

Question 8

R v White

Unknown Identities

Answer 8

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.

Of note: A person cannot conspire alone; there must be another conspirator for an offence to be committed.

Question 9

Act and Omission Definition

Answer 9

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

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

Question 10

Withdrawing from the agreement

Answer 10

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 11

Five points that should be covered when interviewing a Conspiracy Suspect?

Answer 11

1. The existence of an agreement
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 all people concerned
5. Whether anything was written, said or done to further the common purpose

Question 12

The impact of charging someone with conspiracy in association with other charges…

Answer 12

Where the substantive charge can be proved you should avoid laying a conspiracy charge, unless the substantive charges fail to adequately represent the total criminality of the offending encountered.

Of note: An evaluation of the evidence gathered and supervisor approval should be sought before a conspiracy charge is filed.