Conspiracy to Commit an Offence – Study Notes

Overview of Conspiracy

  • Focus of lecture: participation in crime through the offence of conspiracy.
  • Treated as an inchoate crime (i.e., liability crystallises before the substantive offence occurs).
  • Parallel doctrinally to attempt and incitement (covered in previous lectures): same preventive rationale—intervention before harm, deterrent effect, and incapacitation of dangerous group behaviour.

Definition and Nature of Conspiracy (Common-Law Statement)

  • Classic formulation: “An agreement to do an unlawful act, or to do a lawful act by unlawful means.”
  • Key characteristics:
    • Group wrongdoing: must involve at least two persons.
    • The agreement itself is the actus reus; no need for the underlying offence to be carried out.
    • Rationale: collective planning magnifies risk, makes crime more likely, and complicates detection.

Frequently Encountered Forms / Illustrative Scenarios

  • Perverting or perverting the course of justice (staple of TV/film depictions):
    • Agreement to tamper with physical evidence.
    • Agreement to intimidate witnesses so they refuse to testify.
    • Agreement to procure perjured (false) testimony.
  • Conspiracy to defraud (well-entrenched at common law):
    • Centres on cheating or dishonest deprivation of property/economic interests.

Elements of Criminal Conspiracy (Common Law)

  1. Agreement to pursue a criminal purpose (principal offence).
    • Formal written contract not required; any inferred meeting of minds suffices.
  2. Intention to form the agreement.
    • Parties must consciously decide to act together (negligence or recklessness inadequate).
  3. Intention that the principal offence be committed.
    • Must go beyond abstract discussion; objective is execution.

Clarifications & Evidential Notes

  • Courts infer agreement where “two or more persons pursue the same unlawful purpose in combination” rather than independently.
  • Participants need not know every logistical detail—awareness of the overarching scheme is enough.
  • Joining a pre-existing conspiracy counts: later entrants inherit liability once they embrace the plan.

Statutory Reform in Victoria – Conspiracy in the Crimes Act

  • Only two statutory variants now recognised:
    1. Conspiracy to commit an offence
    2. Conspiracy to defraud
  • Located primarily in Section 321 of the Crimes Act (Vic).

Section 321(1) – Basic Offence

  • Person “agrees with any other person” that a course of conduct involving an indictable offence will be pursued.
    → Guilty of the indictable offence of conspiracy to commit that offence.

Section 321(2) – Mens Rea Requirements

  • The accused must intend that the offence be carried out.
  • Must believe any required circumstances/elements will exist when the conduct occurs.

Section 321(3) – Impossibility Irrelevant

  • Guilty even if unknown facts make the substantive offence impossible (e.g., stolen property already recovered, but conspirators unaware).

Procedural Filter

  • Charge requires written approval of the Director of Public Prosecutions (DPP) or delegated authority.
    • Ensures only serious or sufficiently evidenced conspiracies proceed.

Conviction Despite Acquittal of Co-Conspirators – s 321 Principle

  • A conspirator’s conviction stands even if co-conspirators are acquitted, whether in joint or separate trials.
    • Protects against the “all-walk-free” scenario generated by unanticipated evidential gaps against one party.

Penalties

  • General indictable conspiracies: maximum 15 years’ imprisonment (s 321C(1)(b)).
  • If the contemplated principal offence is murder or treason: life imprisonment (or a fixed term determined by the court).
  • If the matter is triable summarily in the Magistrates’ Court (s 321CD(1)(d)(i)): maximum 5 years.

Connections to Prior & Foundational Principles

  • Mirrors attempt & incitement:
    • All punish pre-crime conduct.
    • All require clear communication of intent to cross the line into criminality.
    • All raise questions of proportionality (punishing thought vs. action).
  • Group liability echoes doctrines of joint criminal enterprise and complicity (accessorial liability), but conspiracy liability arises before any overt act toward completion.

Ethical, Philosophical & Practical Implications

  • Preventive Justice: tension between safety and over-criminalisation of mere discussion.
  • Fair-labelling: risk of equating minor peripheral planners with core architects—courts mitigate via sentencing discretion.
  • Evidential reliability: conspiracies often proven by covert recordings or testimony of accomplices; dangers of fabrication incentivise the DPP filter.
  • Societal deterrence: harsh penalties (up to life) underscore the seriousness of collective criminal planning.

Quick Reference / Checklist for Exam Answers

  • Quote or paraphrase statutory definition (s 321(1)).
  • Identify and apply the three mens rea/actus reus elements (agreement + two intents).
  • Discuss evidentiary inference of agreement—no need for formal pact.
  • Mention impossibility clause s 321(3).
  • Note DPP consent prerequisite.
  • State penalty scale: 5 / 15 / life tiers.
  • Analyse effect of co-conspirator acquittal.
  • Compare to attempt/incitement for policy context.