Conspiracy

Criminal Laws, S2 2014, Class 20

Revision
1.) What four kinds of act form the basis for accessorial
liability?
2.) What is the difference between a principal in the
second degree an accessory before the fact?
3.) What mental element is required for accessorial
liability to be established?
4.) What are the essential facts of an offence?
5.) How does being an accessory after the fact differ from
being an accessory before the fact?

Conspiracy
Agreement to commit a crime or other unlawful act
The agreement itself attracts criminal liability it is a separate crime and does not
depend on whether the planned offence takes place (indeed, under the common
law offence, no overt acts towards the commission of the offence are required)

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 into effect, the very plot is an act in itself,
and the act of each of the parties, promise against promise, actus contra actum,
capable of being enforced, if lawful, punishable if for a criminal object or for the use
of criminal means.

Mulcahy v The Queen (1868)

(applied by the High Court in Peters)

Controversy
Development in Star Chamber
Pushes criminal liability back before the commission of a substantive
offence, and even before an attempt to do so, to an agreement between
parties to commit an unlawful act
Conflicts with the idea that intentions alone should not be the basis for
criminal liability
Rationale for the offence of conspiracy (critique by Abbate)
What policy reasons underlie the crime of conspiracy?
Are these supported by evidence?
Constitutional validity
Judicial innovation
Vagueness and flexibility
Enforcement for political purposes

Elements

agreement of two or more to do an unlawful act, or to do a

lawful act by unlawful means

1. Existence of Agreement

2. Scope of Agreement

Penalties
Common Law = at large

26 Conspiring to commit murder

Whosoever:

conspires and agrees to murder any person, whether a

subject of Her Majesty or not, and whether within the Queens
dominions or not, or solicits, encourages, persuades, or
endeavours to persuade, or proposes to, any person to
commit any such murder,
shall be liable to imprisonment for 25 years.

Existence of Agreement
Intent to do an unlawful act + intent to agree with one or more others to do
that unlawful act as a group
Even where recklessness would suffice for elements of substantive offence,
must show intent to commit offence (Siracusa)
Intent or knowledge must be shown for each physical element of the offence
(LK and RK)
But need not extend to precise manner in which offence is to be committed
(Douglas)
No overt acts towards commission of offence required (Rogerson, contra
Commonwealth Criminal Code s 11.5)

Proving an Agreement: OBrien

[I]f the jury decided to acquit Lennon, then Lennon would cease to
be an available co-conspirator to conspire with the appellant, and it
would then be impossible to convict the appellant unless he could
properly be convicted of conspiring with persons unknown

If the reservation is not more than if a policeman is not there, it

would be impossible to say that there had not been agreement. On the
other hand, if the matters left outstanding and reserved are of a
sufficiently substantial nature, it may well be said that the matter is
merely a matter of negotiation (Mills)

Proving an Agreement: OBrien

Agreement be established by evidence of conversations,
documents, actions etc
May fail to show agreement where other persons cannot be
identified

Must be an agreement, and not an intention to enter an

agreement in the future. It may be difficult to draw a line
between negotiating an agreement and actually agreeing (also
Mills)

Scope of Agreement
Knowledge or belief in necessary facts pertaining to unlawful
act (LK and RK)
Prosecution must be clear as to who is agreeing with whom, and
what their agreements pertain to (Gerakiteys)
Is it one overall conspiracy or multiple smaller conspiracies?
Compare Gerakiteys, Griffiths, Meyrick, Chrastny, Saffron, Lee

Impossible Conspiracies
Does not matter that parties are incapable of actually
committing offence, as criminal liability attaches to agreement
itself: Onuorah
However, need to distinguish impossibility from cases where act
would not be unlawful: Barbouttis
Do you agree with the majoritys approach in Barbouttis, or do
you agree with Gleeson CJs dissent?

Terrorism, Conspiracies and PreCrime

Criminal Code Act 1995 (Cth)
101.6 Other acts done in preparation for, or planning, terrorist
acts

(1) A person commits an offence if the person does any act in

preparation for, or planning, a terrorist act.Penalty: Imprisonment for
life.

(2) A person commits an offence under subsection (1) even

if:

(a) a terrorist act does not occur; or

(b) the person's act is not done in preparation for, or planning, a

specific terrorist act; or

(c) the person's act is done in preparation for, or planning, more

than one terrorist act.
(3) Section 15.4 (extended geographical
jurisdiction--category D) applies to an offence against subsection (1).

R v Elomar [2010] NSWSC 10

Penalties of between 23 and 28 years imprisonment for

conspiring to do an act in preparation for a terrorist act

[79] The broad purpose of the creation of offences of the kind involved in
the present sentencing exercises is to prevent the emergence of
circumstances which may render more likely the carrying out of a
serious terrorist act. Obviously enough, it is also to punish those who
contemplate action of the prohibited kind. Importantly, it is to denounce their
activities and to incapacitate them so that the community will be protected
from the horrific consequences contemplated by their mindset and their
actions. The legislation is designed to bite early, long before the
preparatory acts mature into circumstances of deadly or dangerous
consequence for the community. The anti-terrorist legislation, relevantly
for the present matter, is concerned with actions even where the terrorist
act contemplated or threatened by an accused person has not come to
fruition or fulfilment. Indeed, the legislation caters for prohibited activities
connected with terrorism even where no target has been selected, or where
no final decision has been made as to who will carry out the ultimate act of
terrorism. The maximum penalty of life imprisonment testifies to the
seriousness with which the present offence is to be regarded.

Conspiracy: Practice Policy Essay

Can the offence of conspiracy be justified in a system of

criminal law that focuses on both acts and intentions as
necessary elements to attract liability? Discuss.

Extra Readings: Moodle

Class 21:
Muldrock v The Queen [2011] HCA 39

Class 22:
Bugmy [2013] HCA 37