11.5 Conspiracy

The physical element of the offence is entry into an agreement³³⁹ - conduct which involves, of necessity, an intentional act.³⁴⁰ That act must be accompanied by an ulterior intention, shared by at least one other party to the agreement, that an offence will be committed pursuant to the agreement.³⁴¹ The definition  in 5.2 Intention has no application: discussed 5.2-D. The Code requirement of intention that the offence be committed faithfully reflects Australian common law. Recklessness with respect to the risk that another party to an agreement might commit an offence in pursuit of agreed objectives is not sufficient for conviction of conspiracy.³⁴²

It is possible that the requirement of intention “that an offence would be committed” will give renewed life to an argument associated with the discredited doctrine that impossibility bars conviction for conspiracy: discussed 11.5-I. The decision of the NSW Court of Criminal Appeal in Barbouttis,³⁴³ which involved a charge of conspiracy to receive stolen goods, revisits these issues.³⁴⁴ Police set a trap for a suspected receiver of stolen goods, baited with cigarettes donated by a cigarette company. The defendants were caught when they agreed to buy the cigarettes from an undercover police officer who told them that the cigarettes were stolen. A majority of  the Court held that there was no conspiracy on the ground that there was no intention to commit an offence. On the majority view, the defendants intended to receive a particular lot of 50 cartons of cigarettes that was not, in fact, stolen. Hence, it was concluded by the majority, they did not  intend to commit an offence. Gleeson CJ dissented vigorously.  There is  little point in canvassing, yet again, the arguments for and against this characterisation of the defendant’s intentions. The literature is voluminous and the Barbouttis case provides a more than adequate account of its complexities.³⁴⁵ The issue is raised again in these guidelines because it continues to divide courts and it has not been resolved in the Code:

• Though s11.5(3)(a) declares that impossibility is not a barrier   to conviction for conspiracy, the issue in this case is not one of impossibility:  Gleeson CJ (who dissented) and Dunford J (of the majority) were in agreement on that point. For them, the issue was whether the prosecution could prove the fault element of intention to commit an offence;
• The Code lends itself to the suggestion that different considerations govern the outcome depending on whether an attempt or conspiracy is charged in cases where the receiver’s  trap is baited with goods which are not stolen. When attempt is charged, the question is whether the prosecution can prove “intention or knowledge in relation to each physical element of the offence attempted”.  In conspiracy the question is whether  the defendant(s) intended “that an offence would be committed”.

It is certainly arguable that the difference in the description of fault elements in attempt and conspiracy should not lead to different outcomes. Whatever the merits of that argument, the continuing history of division in courts and in legal comment suggests that the issue remains, for the present at least, unresolved.

In offences which impose strict or absolute liability, the prosecution is not required to prove fault with respect to some or all physical elements of the offence: Ch 2: Division 6 – Cases where fault elements are not required. When conspiracy is charged, however, the prosecution must prove entry into an agreement with the intention that an offence will be committed, pursuant to the agreement. The requirement of intention extends to each physical element of the offence, displacing strict or absolute liability. The Code reflects the common law on the fault required for conspiracy to commit offences which impose strict or absolute liability.³⁴⁶ The requirement of ault is subject, however, to an exception when elements of the offence which establish a link with Commonwealth jurisdiction are in issue; it is suspended for the “special liability provisions”: 11.5-K.

There is no conspiracy if only one of those who enter an agreement to commit an offence intends that it will be committed. An agent provocateur can entrap an offender into incitement [s11.4], which is a unilateral offence,  but not a conspiracy, which requires agreement.

Though s11.5(2)(a) and (b) require two or more individuals to agree on the commission of a crime, it is quite consistent with these requirements that only one offender is guilty of conspiracy. Unlike common law, the Code permits a party to the agreement to avoid liability for conspiracy by timely withdrawal [s11.5(5)]. Effective disengagement from liability by one conspirator does not absolve the other from criminal liability. Moreover, defences or excuses which exculpate one party to a criminal agreement will not vicariously confer immunity on another: 11.5-G.

The Code departs from common law, which does not make the occurrence  of an overt act an essential element of the conspiracy.³⁴⁷ The Model Criminal Code Officers Committee justified this addition to the physical elements constituting the offence on the ground that “simple agreement to commit a criminal offence without any further action by any of those party to the agreement [is] insufficient to warrant the attention of the criminal law”.³⁴⁸ Apart from the requirements that the overt act must be “overt” and done “pursuant to the agreement”, no criteria for identifying the overt act are specified.

It is sufficient if the overt act is done by any party to the conspiracy. When the overt act is done by a person other than the defendant it is a circumstantial element of the defendant’s liability. Though s5.6(2) requires proof of recklessness with respect to the other’s act that requirement will rarely, if  ever, be an impediment to conviction. Since conspiracy requires proof of an intention that the offence be committed, fellow conspirators necessarily intend that active members of the conspiracy engage in overt acts in pursuance of the agreement. Proof of that intention satisfies the fault element for the circumstantial overt act.³⁴⁹

The requirement of an overt act marks the point beyond which withdrawal from the agreement or termination of the defendant’s role will not bar liability for conspiracy: 11.5-E.

Common law conspiracy is complete on entry into the agreement to commit an offence. Introduction of the requirement of an overt act, as a formal element of Code conspiracy, has the consequence that there is an interval between the conspirators’ agreement and the first overt act in pursuance of the agreement, when the offence has not yet been committed. Withdrawal from the agreement during this interval can provide the defendant with a defence or excuse for entering the conspiratorial agreement. Withdrawal must be accompanied, however, by “reasonable steps to prevent commission of the offence”. The requirements for effective withdrawal are the same as those in the related defence of withdrawal from complicity: discussed 11.2-G.

There is a potentially significant distinction between withdrawal in conspiracy and withdrawal in complicity, when parties have made an agreement to commit an offence. The accomplice avoids liability for the principal offence if an effective withdrawal is made at any time before commission of the planned offence. In conspiracy, however, the period of grace is far more limited. The conspirator must withdraw before another conspirator begins, by some overt act, to put the agreement into effect. Defendants who withdraw and avoid liability for complicity may leap from the frying pan into the fire. A timely withdrawal from complicity may be too late to avoid liability for conspiracy. The penalty for the conspiracy is  the same, of course, as the penalty for complicity in the complete offence.

Since the defendant may escape liability though each of the requirements for conspiracy are proved, it is apparent that termination or withdrawal takes the form of a defence or excuse, rather than a denial of liability.³⁵⁰ Withdrawal or termination will not be considered by the court unless the defendant can point to evidence in support of the excuse: 13.3 Evidential burden of proof – defence.

Laws designed to protect children against sexual predators are the most obvious instances where agreement to commit the offence will not result in criminal liability for the prey.³⁵¹ Whether or not a person belongs to the class of those “for whose benefit or protection an offence exists” is a question which may often be open  to  argument.³⁵²  Offences which take this form are, in any event, rare in federal jurisdiction.  No  corresponding limitation  is placed on the potential liability of members of the protected classes who are charged with complicity [s11.2] or incitement [s11.4].

The essential elements of conspiracy are an agreement by two or more individuals to commit a criminal offence and an overt act by one of them, in pursuance of the agreement. When two individuals agree together to commit a crime it is quite possible that only one of them will be criminally responsible for entering the agreement. The immunity of one of the conspirators does not confer vicarious immunity on the other:

• Personal defences available to one of the parties to the criminal agreement will not enure to the benefit of the other. Liability for conspiracy is incurred by a person who enters an agreement to commit an offence with a person entitled to a mental impairment defence,³⁵³ duress and other general defences;
• A party to the agreement who commits an overt act in pursuance of the agreement, after the other has withdrawn is guilty of conspiracy: discussed 11.5-E;
• A party to an agreement to commit an offence with a person for whose benefit or protection an offence exists is guilty of conspiracy: discussed 11.5-F.

The Code follows Australian common law³⁵⁴ and permits conviction of one of several parties to an alleged conspiracy though the charge cannot be proved against the remaining parties to the agreement. No distinction is drawn between joint and separate trials of the alleged conspirators. Acquittal of others charged with conspiracy will not protect the remaining defendant unless a finding of guilt “would be inconsistent with their acquittal” [[s11.5(4)(a)].³⁵⁵

The provisions which allow conviction of a conspirator though the charge cannot be proved against others are, necessarily, addressed as much to appellate tribunals as to the court which will try the charge of conspiracy against a defendant.

The rule is expressed in terms identical to its expression in the offences of attempt [s11.1(4)(a)] and incitement [s11.4(3)]. Here, as in those provisions, the Code confirms the emerging common law consensus that a person can be convicted of the preparatory offence though completion of the principal offence is impossible:³⁵⁶ discussed 11.1-E.  The  proposition that impossibility does not bar conviction for conspiracy should be distinguished from the rule that “defences, procedures, limitations or qualifying provisions that apply to an offence apply also to…conspiracy to commit that offence” [s11.5(7)]: discussed 11.5-J. It should be distinguished as well from the argument that the “intention to commit an offence”, necessary for a conspiracy conviction, might be absent in certain cases where commission of the offence was impossible:  discussed 11.5-A. In short, impossibility is no answer to a charge of conspiracy. But arguments that were once presented under that description may be redeployed in another guise.

Application of the principle to defences and procedural provisions unlikely  to cause difficulty. Duress will excuse a defendant who was compelled to agree to the commission of an offence and a statutory limitation period for prosecution of an offence applies equally to the pendant offence of conspiracy. In these cases the distinction between defences or procedural rules and the elements of an offence are obvious. Applications of the principle in cases involving “limitations” or “qualifying provisions” require more care. The issues encountered are the same, in all essential respects, as in the parallel provisions for attempt [s11.1(6)] and incitement (s11.4(4)]: discussed 11.1-F.

The Dictionary to the Criminal Code provides a definition of these provisions. There are three kinds of special liability provision:

1. Those which impose absolute liability for one or more but not all of the physical elements of an offence; or
2. Provisions which relieve the prosecution from the need to prove that the defendant knew a particular thing; or
3. Provisions which relieve the prosecution from the need to prove that the defendant knew or believed a particular thing.

Special liability provisions have only one purpose in the Code. They relieve the prosecution from the need to prove fault with respect to elements of the offence which establish Commonwealth jurisdiction. Section 11.5(7A) extends the effect of the special liability provisions to conspiracy to commit the offence. The issues encountered are the same, in all essential respects, as in the parallel provisions for attempt [s11.1(6A)] and incitement (s11.4(4A)]: discussed 11.1-G.

332. ICR Haulage [1944] 1 KB 551; Simmonds (1967) 51 Cr App R 316.

333. The question whether there can be conspiracy “where the conduct of one human actor is alleged as the basis for a conspiratorial agreement between that actor and the corporate employer” is dis- cussed in B Fisse, Howard’s Criminal Law (1990) 611-614.

334. Nirta (1983) 10 A Crim R 370, 377 (Gallop J).

335. Discussed: B Fisse, Howard’s Criminal Law (1990) 375-381; L Waller & CR Williams, Brett, Waller and Williams – Criminal Law (8ed 1997) 531-534

336. Final Report 1992, 97: “As a further indication of its concern that the crime of conspiracy has been abused, or has led to abuse, the Committee agreed that there should also be procedural restrictions on conspiracy charges.”

337. Penalty units are defined in s4AA of the Crimes Act 1914.

338. Hoar (1981) 148 CLR 32.

339. At common law, the nature of the distinction between fault and physical elements in conspiracy has been the subject of perennial debate: see S Bronitt & B McSherry, Principles of Criminal Law (2001) 450-451, quoting M Goode, Criminal Conspiracy in Canada (1975) 16: “[T]he concept of actus reus is an elusive one, particularly in the area of criminal, conspiracy, so much so, in fact, that it may well be possible to say that the crime has no distinguishing mental and physical elements.” So far as the Code is concerned, the difficulties appear to be overstated: “Entering an agreement” is something one does: it is no more problematic, as a physical element of an offence, than absence of consent or deception.

340. D Brown, D Farrier, S Egger, L McNamara, Criminal Laws (4ed 2001): “Agreement by its nature must be intentional: one cannot agree recklessly or negligently”. See, in addition Ch 2, s5.6(1) which implies a requirement of intention for conduct elements of an offence.

341. Coincidence of criminal intention is not enough. Each conspirator must be aware, at the least, of a substantial risk that another shares their intention to commit the offence. That conclusion is implied by the requirement of agreement between conspirators and reinforced by the consideration that B’s intention to commit the offence is a circumstance of A’s liability as a conspirator, so calling s5.6(2) into operation.

342. Gerakiteys(1984) 153 CLR 317; discussed Bronitt & B McSherry, Principles of Criminal Law (2001) 463-464.

343. (1999) 82 A Crim R 432.

344. Related cases on the law of attempt to receive stolen goods display the same equivocations: See People v Jaffe (1906) 78 NE 169 (New York); Donnelly [1970] NZLR 980 (NZ); Haughton v Smith [1975] AC 476 and Anderton v Ryan [1985] 2 WLR 908(UK); English (1993) 68 A Crim R 96 (WA).

345. See in addition, Leader-Elliott, “Case & Comment: Britten v Alpogut” (1987) 11 Crim LJ 182.

346. See Churchill v Walton [1967] 2 AC 224; Kamara [1974] AC 104, 119 per Lord Hailsham LC: “…mens rea is an essential ingredient in the crime of conspiracy. This mens rea consists in the intention to execute the illegal elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct illegal.”

347. Rogerson (1992) 174 CLR 268.

348. MCC, Ch2: General Principles of Criminal Responsibility (Final Report 1992) 101. The requirement of an overt act was adopted from the US Model Penal Code, Proposed Official Draft 1962, s5.03(5).

349. Ch 2, s5.4(4) provides formal warrant for acceptance of intention in lieu of recklessness.

350. Withdrawal or termination pursuant to s11.2(4) can be characterised, under s13.3(3), as an “excuse…provided by the law creating an offence”

351. MCC, Chapter 2: General Principles of Criminal Responsibility (1992) 103.

352. Keane (12997) 95 A Crim R 593 and, for a sceptic’s view of the concept of immunity for protected classes in relation to complicity, see B Fisse, Howard’s Criminal Law (1990) 352-353.

353. Matusevich (1977) 125 ALR 117; Demirian [1989] VR 97.

354. Darby (1982) 148 CLR 668.

355. Compare Darby, (1982) 148 CLR 668 per Gibbs CJ, Aickin, Wilson and Brennan JJ: “[T]he convic- tion of a conspirator whether tried together with or separately from an alleged co-conspirator may stand, notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person. In our opinion such a determination will focus upon the justice of the case rather than upon the technical obscurities that now confound the subject”. [Italics added] The Code provision will be read, no doubt, with this slightly fuller statement of the criterion in mind.

356. In DPP v Nock [1978] AC 979, the House of Lords held that impossibility barred conviction for conspiracy. Australian rejection of the closely related doctrine of impossibility in attempts [see 11.1-E] probably extends to conspiracy as well. See Sew Hoy [1994] 1 NZLR 257; Barbouttis (1995) 82 A Crim R 432. The latter decision is perhaps equivocal on the issue. The Court divided: Gleeson CJ (in dissent) and Dunford J agreed that modern caselaw on impossibility in attempts applied to conspiracy and concluded that impossibility was not an answer to a charge of conspiracy. But Smart J, the other member of the majority, was of the view that the cases on impossibility in attempts had no application to conspiracy (452).