Short Answer Conspiracy Flashcards
What is a conspiracy?
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.
What if someone withdraws 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.
The offence of conspiracy is complete when…
The agreement is made with the required intent. No further progression towards the completion of the offence is required.
Mens Rea and Actus Reus for Conspiracy
Mental intent necessary:
· 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.
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.
Can someone conspire with their 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.
Does a person charged with need to have been in NZ at the time?
No. 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 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.
What happens if conspiracy is entered into whilst 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
Conspiring 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.
Conspiracy when one person is in NZ and the other is in another 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.
Exception to the hearsay rule
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.
Interview procedure - 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.
Interview procedure - 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
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.
