LLB180 Lecture Notes - Lecture 6: Control Order, Socalled, Counter-Terrorism
Week 6 – Conspiracy, Consorting and Association
Conspiracy
Defined by common law and:
• Conspiracy to murder: Crimes Act 1900 (NSW) s 26
• Conspiring to commit an offence under the Drug Misuse and Trafficking Act 1985
(NSW) s 26
Definition:
• Agreement between two or more individuals to commit an offence (or some other
unlawful act)
• The essence of the offence of conspiracy is agreement
• Concerned with the liability of groups of individuals
• Extends liability in time by pushing the threshold of criminal liability backwards in
time from the planned offence → intention justifies criminalization of the
agreement, whether or not the crime is carried out
• Completed when the agreement comes into existence
• Pealt is at the judges disetio ad uliited a pesied aiu pealt
- Some offences nominate specific conspiracies and specify the penalty
- E.g. s 26 of the Crimes Act → penalizes conspiracy to murder with 25 years
imprisonment
• Note: oelap ith JCE – conspiracy makes the agreement itself a criminal offence –
no implementation of plan required
a ospia consists not merely in the intention of two or more to do an unlawful act, 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) LR 3 HL 306 at 317
25 Conspiring to Commit Murder
Whosoever:
(a) conspires and agrees to murder any person, whether a subject of Her Majesty or not, and
whether within the Queen's dominions or not, or
(b) 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.
26 Conspiring
A person who conspires with another person or other persons to commit an offence under this Division is
guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person
would be if the person had committed the first mentioned offence.
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Attratios of a ospiracy charge? (Rationale CB 1181)
• Doctrine of merger does not apply to conspiracy
- where conspiracy is carried out and the crime committed, the Prosecution can
charge conspiracy and/or the completed offence
• Why might a conspiracy charge be preferred?
- May be easier to prove
- May better reflect overall criminality (eg multiple instances of drug importation)
- Advantages re admissibility of evidence (eg advantage co- ospiatos heasa
eidee ods ad atios outsides the Ds pesee
• Those who go so far as to agee to oit a ie a ot e sigifiatl less
laeoth o less dageous tha those ho oit it → easier to charge than
accessories
• Procedural benefit → evidentiary rule applies so that, if there is reasonable evidence
that the accused participated in conspiracy, the actions/statements of the accused
are admissible against the accused in order to prove the nature of their participation
→ ouldt e adissile i a joit tial to poe the sustatie offee that as
the subject of the agreement constituting the conspiracy
Fabriczy [2010] VSCA 334
• Increases the penalty than if a person was to plan to commit an offence alone as the
offence is more likely to happen due to the individuals making a commitment to do
so
• Several may achieve what an individual would find difficult or impossible, or because
other criminal plans may emerge from the group
• Men acting together prevents a far greater evil and danger to the community than
do the acts of individuals acting alone
Preetatie Justie?
• What about when the urge to prevent crime goes even further?
• Where there is a desire to intervene without having to prove substantial steps
towards commission of the crime (attempt) or agreement to commit a crime
(conspiracy)
• Solution (?): criminalise behaviours which carry a risk of facilitating criminal planning
and/or crime commission
• Extraordinary threats are said to justify extraordinary measures
• Eales la efoeet odies to take eal atio to peet the oissio of
a serious substatie ie
• iteee ad hage pesos ho hae plaed to ipot… heoi efoe the
atual ipotatio takes plae
E.g. Terrorism
• 2002: s 102.3 Criminal Code (Cth): membership
- Intentional membership of terrorist organisation
- Knowledge organisation is a terrorist organisation
- But note exceptions
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• 2004: s 102.8 Criminal Code (Cth): pre-membership/association
- On 2 or more occasions
- Intentionally associate with another person involved with terrorist organisation
- Knowledge that organisation is a terrorist organisation
- Association provides support to the organisation
- Intends that the support assist the org to expand or continue to exist
- Knows the other person is a member of or a person who promotes or directs the
activities of the organisation
- The organisation is a terrorist organisation
But note exceptions
Criticisms (CB 1182):
• Of the evidence rule:
- Auseds oitio a deped o eidee that is heasa
- This evidence may bias the jury against the accused
- Complex jury directions relating to the admissibility of evidence as the
prosecution can include conspiracy counts in the indictment as well as counts for
the substantive offence → complicate trial, increase the risk of error
• Complications distinguishing liability of the accused who is charged as an accessory
and an accused who is charged with conspiracy
• If it were true that a person is more likely to commit an offence due to individuals
making a commitment to each other, this would only justify stepping in and
prosecuting only those whose conspiracies are based on a form of commitment, not
a ee ageeet
• A person who is morally committed to a course of action does not become more
committed due to joining others
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find more resources at oneclass.com
Document Summary
Defined by common law and: conspiracy to murder: crimes act 1900 (nsw) s 26, conspiring to commit an offence under the drug misuse and trafficking act 1985 (nsw) s 26. Some offences nominate specific conspiracies and specify the penalty. So long as such a design rests in intention only, it is not indictable. Mulcahy v the queen (1868) lr 3 hl 306 at 317 (cid:858)attra(cid:272)tio(cid:374)s(cid:859) of a (cid:272)o(cid:374)spiracy charge? (rationale cb 1181: doctrine of merger does not apply to conspiracy. May better reflect overall criminality (eg multiple instances of drug importation) (cid:449)ould(cid:374)(cid:859)t (cid:271)e ad(cid:373)issi(cid:271)le i(cid:374) a joi(cid:374)t t(cid:396)ial to p(cid:396)o(cid:448)e the su(cid:271)sta(cid:374)ti(cid:448)e offe(cid:374)(cid:272)e that (cid:449)as the subject of the agreement constituting the conspiracy. Terrorism: 2002: s 102. 3 criminal code (cth): membership. But note exceptions: 2004: s 102. 8 criminal code (cth): pre-membership/association. Intentionally associate with another person involved with terrorist organisation. Knowledge that organisation is a terrorist organisation.
