The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime which constitutes the necessary mens rea for the offence: Yip Chiu-Cheung v R (1994) 99 Cr App R 406 at 410, per Lord Griffiths; R v Wilson (unrep, 12/08/94, NSWCCA).
[5-210] Suggested direction
A conspiracy is an agreement between two or more persons to do an unlawful act. The nub of the offence is the agreement to engage in a common enterprise to do the unlawful act alleged.
In the present case, the Crown alleges that … [give details of the alleged conspiracy].
… [give the direction requiring the jury to give separate consideration to the case against each accused: see [3-350] and continue].
The evidence against each of [the accused] may include evidence relating to what [the accused] did or said. It may also include what was said or done by other alleged conspirators in the presence of [the accused]. Generally speaking, an accused is not to be held liable for the acts or statements of others if he or she is not present when those acts were done or those statements were made. However, there is an exception to this rule in the case of a charge of conspiracy. This exception permits, in certain circumstances and for certain limited purposes, evidence of acts done and statements made by other alleged conspirators in the absence of one of their number to be admissible in the case against [him/her].
In order for you to find any one of those accused “guilty”, the Crown must satisfy you beyond reasonable doubt of the following matters in relation to each accused —
That there was in fact an agreement between two or more persons to commit … [specify the unlawful act in question]; and
That [the accused], whose case you are considering, participated in that agreement … [If applicable, add: from its outset or because [he/she] joined the conspiracy at a later date] in the sense that —
[he/she] agreed with one or more of the other persons referred to in the count that the unlawful objective of the conspiracy should be carried out; and
at the time of agreeing to this, [he/she] intended that objective should be carried into effect.
As to the first of these matters, namely, whether there was an agreement of the kind alleged by the Crown. An agreement does not have to be reached by any formal means. There does not have to be writing or even someone saying “I agree” for there to be an agreement. As you will know from your own experience, many agreements are made informally and people often enter into agreements without there being any express statements to that effect between them.
The form of the agreement does not matter. In this area of the law, all that is necessary for there to be an agreement is for two or more persons to concur either by words or by conduct in a common design, each having the intention to bring about the unlawful object of the agreement. If you are satisfied beyond reasonable doubt that there was an agreement to … [set out the nature of the agreement alleged by the Crown], then that is in law an agreement to do an unlawful act.
The Crown may seek to prove an agreement in a variety of ways. In some cases it may seek to prove the agreement by direct evidence, for example, by calling a person who actually heard the agreement being made. In other cases, and this is by far the more usual type of case, the Crown may seek to prove the agreement by asking the jury to infer its existence from the evidence tendered before the court. In the present case, the Crown seeks to prove the agreement and the nature of the agreement by … [indicate how the Crown seeks to prove the agreement, and, if by inference, an inference direction must be given: see [3-150], and also a circumstantial evidence direction: see [2-500]].
As to the second of the matters which the Crown has to prove — in order for [the accused] to have participated in the agreement, [he/she] must have known what was proposed as the objective of the agreement and must have intended to carry that objective into effect. The Crown must satisfy you beyond reasonable doubt of those matters. It is not necessary for the Crown to prove that the agreement was carried into effect, but it is necessary for the Crown to prove that [the accused] intended that it be carried into effect. [The accused] must have been a party to that common design with at least one other person.
The Crown may seek to prove that [the accused] participated in the agreement in a variety of ways. It may do so by leading direct evidence of witnesses that [the accused] by [his/her] conduct, including any statements [he/she] may have made, indicated that [he/she] was a participant. The Crown may also seek to prove such an agreement by inferences from acts done or statements made by [the accused] in apparent furtherance of the purpose or objective of the alleged agreement.
[If an agreement by inferences from acts done or statements made by the accused in apparent furtherance of the purpose or objective of the alleged agreement, add
I remind you of the directions of law I have given you as to the drawing of inferences and the necessity for the Crown to exclude any explanation other than that of guilt before you would be entitled to come to the conclusion that the Crown has established that [the accused] was a participant in the alleged agreement.]
I have already explained to you that, in general, an accused is to be regarded as responsible in law only for [his/her] own acts or statements and [he/she] is not generally to be held responsible for acts done or statements made by others when [he/she] is not present. I have also informed you, however, that in cases of conspiracy there is an exception to this rule.
This exception provides that relevant acts done and statements made by other persons alleged also to be conspirators, and done or made whilst the conspiracy is still active, are evidence against all of them, even though not all were present when the act was done or the statement was made … [if appropriate: or was done or made before [he/she] joined the conspiracy].
Evidence of such acts and statements of co-conspirators is admissible against an accused who was not present when the act was done or the statement was made, on the issue whether there was an agreement as alleged by the Crown and also as to the nature of that agreement. If these acts or statements done in [his/her] absence were acts done or statements made in carrying out the purpose of the alleged conspiracy then that evidence may also be regarded as evidence of [his/her] participation in the agreement alleged.
In this case, the Crown seeks to prove the participation of [the accused] by … [set out how the Crown seeks to prove the participation of the particular accused and if by inference give (or remind the jury of) the general directions on circumstantial evidence and drawing inferences and then set out the alleged facts from which the inference is sought to be drawn against the particular accused].
Because evidentiary difficulties frequently arise in conspiracy trials, judges may find the following notes helpful —
Conspiracy is a continuous crime. It extends over the period of agreement until the police intervene or the objective of the agreement is achieved. It remains a single conspiracy no matter who joins or leaves it, as long as there are at least two persons at any one time acting in combination to achieve the same criminal objective: R v Masters (1992) 26 NSWLR 450 at 458.
In a joint trial for conspiracy, the summing up must deal separately with the case against each accused and the trial judge must separate the evidence properly relevant and admissible against each of the accused: R v Cosgrove and Hunter (1988) 34 A Crim R 299 at 303.
Before the co-conspirators rule can operate to permit acts and statements of others, in the absence of a particular accused, to be evidence in the case against that accused, the trial judge must have determined (on the basis of evidence admissible in the ordinary way against that accused) that there is prima facie reasonable evidence of participation of that accused in the alleged agreement. The jury is not to be told of the trial judge’s finding in the summing up, or at all, and there need not be a formal judgment or ruling to that effect, but the trial judge must indicate that he or she is satisfied that there is such reasonable evidence of participation prior to the summing up.
If there is evidence of reasonable participation, then acts or statements in the absence of the accused will be admissible against him or her to prove the existence of the conspiracy and the nature of it. If those acts or statements were done or made in furtherance of the conspiracy, then they will also be admissible on the issue of the accused’s participation in the alleged agreement. If, however, the allegation of the Crown is that the accused joined the conspiracy after it had commenced, then acts done or statements made prior to his or her joining the alleged conspiracy are admissible only to prove the existence of the alleged agreement and the nature of it, but not to prove his or her participation. See generally: R v Masters (1992) 26 NSWLR 450; R v Chai (1992) 27 NSWLR 153; R v Houlker (unrep, 19/03/93, NSWCCA).
Section 57(2) of the Evidence Act 1995 provides that if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy, or otherwise), the court may use the evidence itself in determining whether the common purpose existed.
This provision reflects the common law. See, for example, Ahern v The Queen (1988) 165 CLR 87 at 93–94 and Tripodi v The Queen (1961) 104 CLR 1 at 6–7. The admission of this evidence does not offend the hearsay rule. Where evidence is admitted on a provisional basis under s 57(2) of the Evidence Act 1995, even though its admissibility is in issue, and it transpires that there was no other evidence of common purpose involving the relevant accused, it will probably be necessary for the judge to exclude the evidence at a later stage.
It is open to the trial judge in the exercise of his or her discretion, even where it is found that there is reasonable evidence of participation against a particular accused, to exclude evidence of the acts and statements of others from consideration in the case against him or her (pursuant to s 135 or s 137 of the Evidence Act 1995) and/or to limit the use to which the jury might put such evidence under s 136 of the Evidence Act 1995.
Although a warning under s 165 of the Evidence Act 1995 is not required, the jury should be told that they should scrutinise carefully before acting on evidence of the acts and statements of others in the absence of a particular accused but which implicate that accused: R v Chai (1992) 27 NSWLR 153. It should be pointed out to the jury that the particular accused was not present when the relevant things were said and done by his or her alleged co-conspirators, and was therefore unable to confirm or deny the truth of what was said or done.
As to the significance of statements made after the arrest of an alleged conspirator, see: R v Louden (1995) 37 NSWLR 683.
The common law rule that a husband and wife cannot be found guilty of conspiring together has been abolished, see: Crimes Act 1900, s 580D.
As to indictments for conspiracy, see: Criminal Procedure Act 1986, Sch 3, cl 21.
As to conspiracy to defraud, the jury should be directed that to defraud is to deliberately use dishonest means to deprive another person of his or her property or to imperil his or her rights or interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another person of money or property, or to imperil the other person’s rights or interests, knowing that he or she has no right to deprive that other person of money or property, or imperil that other person’s rights or interests.
The summing up should also identify the dishonest means relied upon by the Crown: Peters v The Queen (1998) 192 CLR 431; Spies v The Queen (2000) 113 A Crim R 448. See also Defraud — Intent to [5-350].
Having regard to the definition of “supply” in the Drug Misuse and Trafficking Act 1985, it is not open to the Crown to charge a conspiracy to supply a prohibited drug where the accused agreed with another to supply a prohibited drug to that other: R v Challita (1988) 37 A Crim R 175 at 184 and R v Trudgeon (1988) 39 A Crim R 252. It is, however, open to the Crown to charge a conspiracy where the accused is alleged to have agreed with another or others to supply drugs to the public generally, or to another, or others not being conspirators with them: Tannous v The Queen (1989) 64 ALJR 141.
An accused may nevertheless be liable for conspiracies to do the factually impossible: R v El Azzi (2001) 125 A Crim R 113.