Conspiracy - Module Flashcards
Conspiracy
Introduction:
A conspiracy is an agreement between two or more people to commit an offence. This necessarily occurs before the principal offence is committed. It comes after the intent to commit the crime, and before the attempt.
Therefore, in cases where the crime has not actually been committed, and where there is insufficient evidence to prove an attempt, a charge of conspiracy may be appropriate.
Conspiring to commit offence
Section 310, Crimes Act 1961
(1) Subject to the provisions of subsection (2) of this section, every one who 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, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence exceeds 7 years’ imprisonment, and in any other case is liable to the same punishment as if he had committed that offence.
(2) This section shall not apply where a punishment for the conspiracy is otherwise expressly prescribed by this Act or by some other enactment.
(3) Where under this section any one is charged with conspiring to do or omit anything anywhere outside New Zealand, it is a defence to prove that the doing or omission of
the act to which the conspiracy relates was not an offence under the law of the place where it was, or was to be, done or omitted.
ELEMENTS:
The elements of the offence of conspiracy are:
* 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.
Conspires:
A conspiracy does not simply rely on the intention of two or more people to
commit an offence. It relies on the subjects (two or more of them) forming
an agreement to do an unlawful act, or to do a lawful act by unlawful means.
Where there is only the intention to commit the offence without an
agreement, then no offence is committed.
Mulcahy v R (1868) LR 3 HL 306, 317
“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 ….”
At the centre of a criminal conspiracy is the plan (intended objective) of the
parties concerned and the agreement or consensus of the two or more people.
The essence of a conspiracy, as suggested in Greenfield1
, is an agreement to pursue a course of conduct which, if carried out, would amount to the commission of an offence or involve the commission of an offence by one or more parties to the agreement.
Omission:
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 and as
such this must not be overlooked.
Example -
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).
Withdrawing from the agreement:
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.
Example -
Three people intend to commit a service station robbery. The first two
parties agree that they, collectively, will commit the offence while the third
reconsiders and withdraws before the agreement is made. The first two are
co-conspirators but because the third withdrew before the agreement was
made the third party would not be liable.
Completion of conspiracy:
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.
When a conspiracy ends:
R v Sanders (1984) 1 CRNZ 194
“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”
Agreement requires physical and mental faculties:
The conspiratorial agreement requires the operation of both the physical and
mental faculties. The mens rea (mental intent) necessary for a conspiracy is:
- 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 actus reus (physical element) of conspiracy is 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 and the object of the conspiracy.
Actus reus and mens rea are further discussed below.
Actus reus:
The actus reus of conspiracy is the actual agreement by two or more people
to carry out the illegal conduct. There is no requirement for the conspirators
to actually carry out the illegal conduct on which the agreement is based. If
this were the case it would likely equate to an attempt or the actual
commission of the intended offence.
The physical acts, words or gestures used by the conspirators in making their
agreement is what is to be considered 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. 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.
Mens rea (Intent):
The offenders’ mental intent must be to commit the full offence. Where this
intent does not exist no crime has been committed.
A person does something “intentionally” if they mean to do it; they desire a
specific result and act with the aim or purpose of achieving it.
Intent:
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.
An example of this is Section 2, Crimes Act 1961, where the definition of
assault “means the act of intentionally applying or attempting to apply
force….” For instance a person intends to strike the victim with their fist on
the right side of the face above the eye.
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” AP Simester and WJ Brookbanks
Principles of Criminal Law (4th ed, Brookers, Wellington, 2012)
An example of this is Section 228(1)(b), Crimes Act 1961, where “Everyone
is liable….who, with intent to obtain any property, service, pecuniary
advantage, or valuable consideration…” Whilst the offender deliberately
intends to commit the act by using a document, their intention is to also to
obtain a specific result, in this case, any one of the elements specified in this
section.
Note:
Do not confuse this requirement to have a firm intent or purpose with what can be a very
fleeting agreement between the parties involved in that agreement.
Proving intent -
In general terms the onus is on the prosecution to prove the offender’s intent
beyond a reasonable doubt. Where possible, it is good practice to support any admissions or confessions as to an offender’s intent with circumstantial evidence from which their intent can also be inferred.
In R v Collister 2
two police officers were charged with demanding with
menaces after causing a man to believe he would be arrested for soliciting
homosexual acts unless he paid them money. Although no express demand
for money was made, it was held that the defendants’ intent could be inferred
from the circumstances.
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.
Two or more people:
R v White (1945) GLR 109.
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.
Conspiring with spouse or partner:
Section 67, Crimes Act 1961
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.
Offence explained:
“Offence” and “crime” are words that are used interchangeably in statute,
and there is no material difference between them. They may be described as
any act or omission that is punishable on conviction under any enactment,
and are demarcated into four categories described in s6, Criminal Procedures
Act 2011.
Act and omission defined:
Act: To take action or do something, to bring about a particular result:
Oxford Dictionaries, Oxford University Press.
Omission: the action of excluding or leaving out someone or something, a
failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford
University Press.
Jurisdiction:
Section 7, Crimes Act 1961
For the purpose of jurisdiction, where any act or omission forming part of any offence, or any event necessary to the completion of any offence, occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission, or event.
Thus a person charged with conspiracy need not have been in New Zealand
at the time of the act, omission or event.
It is an offence not only to conspire to commit an offence in New Zealand,
but also to conspire to do or omit in any part of the world, anything the
doing or omitting of which would be an offence if done or omitted in New
Zealand. Not all acts or omissions forming part of the offence need be
committed in New Zealand; some, perhaps almost all, may occur outside.
In R v Sanders 3
it was deemed sufficient if one act or omission forming part
of the offence or “any event necessary to the completion of any offence”
occurs in New Zealand.
Conspiracy entered into overseas:
Under the common law rules as to jurisdiction over conspiracy offences a
person who has entered into a conspiracy overseas is amenable to the
jurisdiction of New Zealand courts only if they are later physically present in
New Zealand and they act in continuance of the conspiracy.
Poynter v Commerce Commission 4 reinforced the position that New Zealand
courts had no jurisdiction over a conspirator who enters into the conspiracy
abroad and who never comes to New Zealand
Conspiracy to commit an offence overseas:
Under s310 of the Crimes Act 1961, it is an offence to conspire to commit an
offence or to do or omit to do anything, in any part of the world that would
be an offence in New Zealand. 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.
Example 1:
Two people in New Zealand plan and agree to commit a bombing in
Australia. They have committed a conspiracy and are able to be convicted in
New Zealand 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 New Zealand conspire to each take on a second wife in Saudi
Arabia, knowing that such activity would be unlawful in New Zealand if
done here (bigamy). They are not subject to conviction in New Zealand 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.
Conspiracy between parties in New Zealand and other country:
The Court in R v Darwish 5 , a drug related matter, held that where a
conspiracy is made between parties in New Zealand and another country, the
courts will likely take the view that the conspiracy was formed in both
countries simultaneously, and given New Zealand is one of those countries
in which the conspiracy falls, it would lie within the jurisdiction of the New
Zealand courts.
Admissibility of evidence:
The intention, of the parties involved, to actually carry out the offence is an
essential element to a conspiracy charge. There must be a common aim to
commit some offence and an intention that the aim is to be effected.
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.
Specific offences:
The Crimes Act 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: Conspiring in relation to controlled drugs pursuant to s6(2A) of the
Misuse of Drugs Act 1975 is an example.
For such conspiracies, action is to be taken under the relevant section. In all
other cases, s310 applies.
Investigative procedure:
Introduction
In a conspiracy investigation, ensure you interview everyone involved.
People are often unfamiliar with the offence of conspiracy and may be more
inclined to discuss the planning of offences and thus enable conspiracy
charges to be filed where the substantive charge may not be proved.
Witnesses Interview and obtain statements from witnesses 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.
Suspects 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.
Consider search warrants:
Consider whether to prepare and execute a search warrant(s) to locate and
seize evidence to support the charge(s).
Also consider the use of electronic communications between the parties
concerned as part of their planning, and therefore whether to intercept
emails, text messages, telephone calls and messages posted on social media
websites.
Electronic interception of communications is a possibility if the
circumstances justify such action.
Prosecution:
Charging Generally, charges of conspiracy should not be filed in situations where the specific (substantive) offence can be proved. Although in R v Humphries6
it was suggested “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 other charges. - The judge may disallow the evidence as it will be too prejudicial, ie the jury
may assume the defendant’s guilty knowledge or intent regarding the other
charge and not look at the evidence, basing its assumption on the
conspiracy charge. - 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.
Example:
Where a murder is actually committed you charge your suspect with the
substantive offence (murder), rather than conspiracy (to murder).
However, if the substantive offence does not adequately represent the total
criminality, you may need to include a charge of conspiracy. For instance,
Peter and George succeeded in burning down a warehouse. They then
conspire to murder a witness to the arson. In this situation you would be
justified in charging them with both the substantive arson offence as well as a
charge of conspiracy to murder, in relation to the witness.
Summary
* Conspiracy is an agreement by two or more people to commit an offence or
to do or omit to do anything that would be an offence anywhere in the
world.
* The intent of the offenders must be to commit the offence.
* The offence of conspiracy is complete on the offenders agreeing to commit
an offence, and continues until they have carried out their objective or until
it is abandoned or frustrated (eg one of the parties to the conspiracy dies).
A person who later withdraws from the agreement is still guilty of
conspiracy.
* You can effectively withdraw from a conspiracy before an agreement is
reached, but not following the agreement to commit the intended offence.
* The actual agreement need not warrant discussion or decision on how the
offenders will actually go about the commission of the offence, a simple
verbal agreement to commit the offence will suffice.
* For an offence intended to be carried out somewhere other than
New Zealand, it is a defence to a charge of conspiracy where the person
charged can prove that the act or omission was not an offence under the
law of the place where it was to be carried out.
* There must be independent evidence of the conspiracy for a conspirator’s
evidence to be admitted as evidence against his or her co-conspirator(s).
* A person can be charged and convicted of conspiring with a person(s)
unknown.
* A person can be charged with conspiracy in circumstances where they
themselves are incapable of effectively carrying out the substantive
offence.
* When interviewing conspiracy suspects you should consider: 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; the intent of those
involved in the agreement; the identity of all people concerned where
possible; and whether anything was written, said or done to further the
common purpose.
* 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.
* Spouses or civil union partners are capable of conspiring together.
