Conspiracy - Section and Penalty
CA61; S310(1)
7 Years Imp
(if penalty of that offence exceeds 7 years - otherwise same penalty)
Elements
- 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.
What does the offence of conspiracy rely on?
Conspiracy 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.
Mulcahy v R
(Mulling over an intention to do an unlawful act … and then agreeing to carry it into effect … being Okahy with the plot).
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 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.
When is conspiracy complete?
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
If a person withdraws from the agreement, are they still guilty of conspiracy?
- Withdrawal after the agreement - yes.
- Withdrawal before - no.
R v Sanders
(A conspiracy continues to exist right until the 11 secret herbs and spices have been obtained)
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”.
What is the mens rea of conspiracy?
- 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.
What is the actus reus of conspiracy?
An agreement between two or more people to put their common design into effect - the physical acts, words or gestures used by the conspirators in making their agreement.
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.
R v Collister
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 White
(Don’t need to know the identity of Heisenberg to charge for conspiracy)
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
CA61; S67:
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.
Commit - definition
Carry out, perpetrate
Definition of Offence/Crime
Any act or omission that is punishable on conviction under any enactment.
Act, do and Omission Definition
Act:
To take action or do something, to bring about a particular result.
Do: To take action or do something, to bring about a particular result
Omission:
A failure act, or fulfil a moral or legal obligation
What is the jurisdiction of the New Zealand justice system, if one of the parties to the conspiracy enters into the agreement overseas?
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.
Topics to cover off when you are interviewing witnesses to a conspiracy
(PPAP)
- Identity of the People present at the time of the agreement
- What offence was Planned
- With whom the Agreement was made
- Any acts carried out to further the common Purpose
Topics to cover off when you interview suspects for a conspiracy
(AIID)
- The existence of an Agreement to commit an offence OR to omit to do something
- 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.
What is the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence?
A person withdrawing 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.
