Flashcards in Conspiracy Deck (31)
Conspiring to commit an offence - what is the Act and Section?
Crimes Act 1961, Section 310
What is the punishment for conspiracy?
A term of imprisonment 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.
Unless a punishment is expressly prescribed by Crimes Act 1961 or by some other enactment
Conspiracy to commit and offence overseas.
Is it an offence and what is the defence to a conspiracy to do or omit anything outside of New Zealand?
Yes it is an offence.
The person has a defence if they are able to prove that the act is not an offence under the law of the country where is was to be committed.
eg. two people in NZ conspire to each take on a second wife in Saudi Arabia knowing that such activity would be unlawful in NZ. They are not subject to conviction because in Saudi Arabia a person is permitted to have up to four wives.
Elements of Conspiracy
-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 NZ would be an offence
Caselaw - 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 is indictable. When two agree to carry (the intended offence) in to effect, the very plot is an act in itself.
Element - conspires
A conspiracy is an agreement to pursue a course of conduct which, if carried out, would amount to the commission of an offence by one or more parties to the agreement.
There must be an agreement and an intention to commit the offence.
Discuss - agreement, mens rea and actus reus
Define omission and provide an example of this in relation to conspiracy.
Omission is a failure to act or leaving something out.
eg. a security guard deliberately fails to lock a door that he would normally secure with the aim being that his associates gain entry to commit a burglary
Explain the liability of a person who agrees to commit an offence but then withdraws from the agreement before the completion of the intended offence.
A person withdrawing from the agreement is still liable 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 in made.
When is the offence of conspiracy complete?
The offence is complete on the agreement being made, accompanied by the required intent. it does not require any further progression towards its completion by those involved in the agreement.
Caselaw - 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 or in any other manner by which agreements are discharged..
Describe the mens rea necessary for a 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
The mental intent must be to commit the full offence
What is the acuts reus of conspiracy?
The actus reus is the agreement between two or more people to put their common design into effect. It must be made before the commission of the acts which make up the full offence and the object of the conspiracy.
In a criminal law context there are two specific types of intent. Firstly there must be an intention to commit the act and secondly an intention to get a specific result.
What circumstantial evidence can infer the offenders intent?
-the offenders actions and words before, during and after the event
-the surrounding circumstances
-the nature of the act itself
Can a person be liable of a conspiracy in circumstances here they are incapable of effectively carrying out the substantive offence?
Caselaw - R v White
Where you can prove that a suspect conspired with other parties (one or more people) who 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
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.
Define offence and crime
As an act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in section 6 of the Criminal Procedures Act 2011.
Section 7, Crimes Act 1961
Where any part of the offence or any act necessary to complete the offence occurs in NZ, the offence is deemed to be committed in NZ, whether or not the person charged with the offence was in NZ or not at the time.
Discuss conspiracy entered in to overseas.
A person who enters into a conspiracy overseas is amenable to the jurisdiction of NZ only if they are later physically present in NZ and act in continuance of the conspiracy.
Discuss conspiracy between parties in NZ and overseas
The courts will likely take the view that the conspiracy was formed in both countries simultaneously, and given that NZ is one of those countries in which the conspiracy falls, it would lie within the jurisdiction of the NZ courts.
Discuss admissibility of evidence in conspiracy cases.
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.
What points should be covered when interviewing witnesses to conspiracy?
-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
What points should be covered when interviewing suspects to conspiracy?
-the existence of an agreement to commit an offence
-the existence of an agreement to omit or do something that would amount to an offence
-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
Why is it sometimes undesirable to lay both a substantial charge and a conspiracy charge?
-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
-the addition of a conspiracy charge may unnecessarily complicate or 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
In what cases would you lay both a substantive charge and a conspiracy charge?
If the substantive charge does not adequately represent the total criminality, you may need to include a charge of conspiracy.
Element - any person
proved circumstantially or by judicial notice
Element - to commit any offence
An act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in section 6 of the Criminal Procedures Act 2011.
Element - to do or omit, in any part of the world, anything of the which the doing or omission in NZ would be an offence.