Impossible Conspiracies and Criminalising Association

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This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 1042-1067.

“Impossible conspiracies”

[1]Impossibility is no barrier to conviction.

  • An “impossible conspiracy” is one where, for example, the substance the parties agreed to import is not the prohibited substance they thought it was or the method they chose is incapable of producing the crime.
  • In Onuorah, the court held that as long as the parties have agreed to commit a crime it is irrelevant that there is no possibility of successful commission.[2]
    • This is consistent with the approach taken to the charge of attempt.
  • If the agreement is to engage in conduct that is not in fact unlawful, there can be no conspiracy conviction.
    • In Barbouttis, the defendants were charged with conspiring to receive stolen property. They agreed had agreed to buy a quantity of cigarettes which they believed to be stolen but which had been loaned to police for the purpose of catching such operations.[3]
      • Because the Crown was found to have framed the agreement as an agreement to receive specific “parcel” of cigarettes, the agreement was not criminal (even though the defendants thought they were stolen).
      • Glesson J strongly dissented, his reasoning appears to be more consistent with
  • The issue of impossibility will most commonly arise with respect to undercover or entrapment operations by the police. In this context, a substance may be replaced with a benign one for example.

Controversies surrounding conspiracy

[4]Apart from the rationale for the offence, the main points of controversy have been:

  1. Constitutional validity.
  2. The extension of liability to “unlawful acts” as well as crimes.
  3. The vagueness and flexibility of the definition of the offence, lending itself to selective use and political purposes.
  4. The procedural, evidentiary and sentencing advantages in favour of the state.
  5. The potential to secure a conviction against just one individual, including where alleged co-conspirators are acquitted.

Constitutional validity

In the Victorian case of Dickinson,[5] the High Court quashed the defendant’s conviction for conspiracy to steal a large quantity of cigarettes. (The offence is identical to NSW common law).

  • The court held that “the case is one of “direct collision” because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.”
  • Commonwealth law only allows the charge in relation to agreements to commit crimes of a certain level of seriousness and requires the prosecution to prove not just the agreement but also an overt act in pursuance of the agreement.

Relevant unlawful acts

“Unlawful acts” include conspiracies to:

  • Defraud
  • Commit a tort
  • Corrupt public morals
  • Effect a public mischief
  • Defeat or pervert the course of justice
  • Prevent or defeat the execution or enforcement of a law of the Commonwealth

These categories have developed as a result of judicial innovation and, more recently, statutory reform.

  • In England in the 1970s the laying of charges of conspiracy to corrupt public morals included to extremely controversial cases.
    • In DPP v Shaw, the defendant was convicted after publishing a “Ladies’ Directory” advertising prostitutes.[6]
    • In Knuller, the defendants were convicted after publishing a magazine which contained advertisements inviting readers to meet the advertisers for the purpose of homosexual sex.[7]
  • In DPP v Withers, the House of Lords allowed an appeal against the conviction of the defendants on charges of conspiracy to effect a public mischief.[8]
    • The court held that “there is no separate and distinct class of criminal conspiracy called conspiracy to effect public mischief,” if there is a gap in the law, it is the role of the legislature to fill it.
    • Peters endorsed this position in Australia.[9]

Politically motivated prosecutions

The vagueness and ‘flexibility’ of the offence has facilitated use of the offence against political groups, trade unions and other “unpopular causes” where either no criminal offence exists or the offence would be more difficult to prove than a conspiracy to commit it.

  • In 1916, 12 members of a radical left wing organisation, the Industrial Workers of the World, were charged in relation to a number of arson attacks on Sydney buildings. Ian Turner argues that one of the important factors that influenced the prosecution to prefer conspiracy charges was the improved prospect of obtaining convictions.[10]
  • Political motive may also be inferred in the laying of conspiracy charges for murder in 1978, against three members of the Ananda Marge, a spiritual and social activist group with origins in India. The defendants claimed that they had been framed by a police informant who fabricated the story and planted evidence.
  • Another controversial and politically motivated use of the conspiracy charge was against several ministers of the Whitlam government over the so-called “loans affair” in Connor and Whitlam v Sankey.[11]

Terrorism-related offences

Following a highly publicised series of arrests in November 2005, a number of men were charged with conspiracy to commit offences of terrorism.

  • By charging the men with conspiracy the prosecution was not required to prove the elements of the substantive offence of doing an act in preparation for a terrorist act.
  • The men were sentenced to terms of imprisonment ranging from 23 to 28 years.

Procedural and evidentiary advantages

Even when the prosecution alleges as the heart of their case that the completed offence was committed, the charge of conspiracy may be preferred for strategic and pragmatic reasons.

  • The courts have failed to provide clear guidance or take decisive steps to restrict such practices, however, on a number of occasions they have expressed reservations about the way conspiracy charges are employed by law enforcement and prosecutorial authorities.
  • In Hoar, the High Court noted that “[i]n light of the vidence called for the Crown there seems to have been no reason for thinking the offence had not been committed.”[12]
    • In El-Kotob, the court interpreted the decision as meaning that “where “a sufficient and effective charge” relating to a substantive offence was available, it was considered to be inappropriate to lay a charge of conspiracy.[13]
  • In Kalajzich and Orrock, the accused were convicted of conspiracy to murder, attempted murder and murder in relation to the same victim. The court described these charges as a “matter for some regret” and suggested that it would have been preferable to simply lay the last charge.[14]
  • In contrast, Hayne J observed in Truong, that “there are many cases where the criminality of a person’s conduct may properly be reflected in a number of different charges.”[15]

Evidence from co-conspirators

Evidence which would be inadmissible against the defendant as hearsay evidence in a charge for a completed offence is allowed to prove a conspiracy, known as the “co-conspirators rule”.

  • Such words and actions are admissible to prove the existence of the agreement and in certain circumstances also participation in the agreement.
  • Such evidence is extremely difficult to rebut and where it is used the jury should be warned to scrutinise it carefully (Chai).[16]
  • In Ahern, the High Court held that in order for evidence to be admissible to prove participation, there must also be “reasonable evidence” apart from the hearsay. The court rules that it is for the trial judge to “determine the sufficiency of the independent evidence.”[17]
    • Ahern was strongly criticised in Pektas, where the court noted that such a determination has always been a matter for the jury in the past.[18]
  • The special rules governing the admissibility of hearsay evidence in a conspiracy case apply equally where parties to a joint criminal enterprise are charged with a completed offence.
  • Questions have been raised about the appropriateness of admitting such evidence because of the increased risk of a miscarriage of justice.
    • In Chidiac, the chief Crown witness later stated that he had lied about Chidiac’s involvement in the conspiracy and that he had given false evidence to secure beneficial treatment from the Australian Federal Police.[19]
  • Some conspiracy cases, including Chidiac, have been identified as raising serious questions about the drug law enforcement methods employed by the Australian Federal Police. The Wood Commission made found “seriously corrupt practices” in the Commonwealth-New South Wales Joint Drug Task Force on Drug Trafficking.[20]
    • It found that in “in more than one instance people were convicted on the basis of evidence which was improperly obtained or fabricated.”[21]
  • By its nature, the conspiracy charge lends itself to prosecution on the basis of fabricated evidence.

Overlap between conspiracy and the completed offence Conspiracy charges open a far wider field of inquiry than would proof of the commission of an unlawful act.

Overlap between conspiracy and the completed offence

  • Conversations, documents, actions etc relating to the agreement are relevant, but would not be relevant if proof of the commission of the act alone were at issue.
  • If the two offences are tired together, the jury will hear a lot of evidence about the completed offence – by virtue of the conspiracy count – which would not be admissible if the completed offence was tried separately.
  • On the other hand, if they are tried separately, the prosecution has two chances at conviction on substantially similar facts.
  • In Savvas, the defendant was convicted of conspiring to import heroin and sentenced to 25 years’ imprisonment. He argued that he had been sentenced for the commission of the substantive offences of importation and supply, for which he had not been charged.[22]
    • The NSW Court of Criminal Appeal dismissed the appeal. Kirby P registered strong dissent on the grounds that “under the guise of sentencing the applicant following his conviction on two counts of conspiracy... [Hunt J had] in effect... sentenced him for the substantive offences upon which he was never put on trial.”[23]
    • The High Court endorsed the trial judge’s decision to sentence Savvas on the basis that he had committed the substantive offences even though he had only been charged with conspiracy.
  • Note the higher penalty potentially available for conspiracy (“at large”) (Gerakiteys).[24]

Convictions of individuals for conspiracy

While a conspiracy requires involvement of two or more persons, there are a variety of circumstances in which charges can be laid and convictions obtained against one person only:

  1. If only one of the alleged co-conspirators can be located (O’Brien).[25]
  2. An accused can be charged with “conspiring with a person or persons unknown” (Harrison).[26]
  3. Where the co-conspirator was an undercover law enforcement officer who set out to entrap the accused and against whom no charges are laid (Yip Chiu-Cheng).[27]
  4. Where other parties are given immunity from prosecution in return for giving evidence against the accused (Chidiac).[28]
  5. Where only one person is convicted on the evidence (Darby[29] cf Osland).[30]

The fifth scenario occurred in Darby, and the courts rejected appeals on the basis that the co-conspirator was not found guilty.

  • Controversially, the High Court stated that this argument “proceeds upon a mistaken view of the true effect of an acquittal.”[31]
  • In Guimond, the Supreme Court of Canada dealt with a similar issue and Murphy J, in strong dissent, observed that “The essence of conspiracy is the agreement or combination of more than one person... the offence is not an independent one.” Furthermore, “[i]t offends commonsense to leave a contradictory verdict that there was a conspiracy and [the acquitted party] was a conspirator.”[32]
  • Murphy J was especially critical of the establishing a principle that acquittal does not amount to an establishment of innocence; “If adopted by this court and allowed to stand, it will be the greatest setback to human rights and individual freedom in the history of this Court.”[33]

Criminalising association

[34]The crime of conspiracy extends criminal liability temporally – back to the time at which an agreement is made to commit a crime. In some contexts the law goes further. Various forms of association and communication are themselves regulated and potentially criminalised.

  • The intention to stifle the activities of groups considered to be regularly engaged in criminal activities.
  • This may reflect a shift towards a pre-crime society where the possibility of forestalling risk takes precedence over responding to wrongs done.
  • Examples include the introduction of “bikie gang” legislation and the heightened sensitivity towards terrorist threats.
  • Two rationales for pre-crime include:
  1. The pursuit of security and prevention of risk, particularly that posed by identified groups.
  2. An offence of association may be used to stigmatise an organisation itself and mark it as illegitimate.
  • Jude McCulloch and Sharon Pickering argue that the traditional understanding of crime prevention is based on “non-punitive measures which reduce opportunities to commit crime or address the broader context in which people commit crime through a range of social and environmental strategies.” However, counter-terrorism criminalises those who are imagined to commit future wrongs and ignores broader factors, focussing on “rooting out future terrorists rather than what might be thought of as root causes.”[35]
  • Lucia Zedner points out that new rationales for pre-crime dictate that “uncertainty is no ground for inaction” and that precaution should override the requirement for proof beyond reasonable doubt.[36]

Consorting

“The offence of consorting with reputed criminals is one of Australia’s most dubious contribution to the criminal law.” The offence was formerly contained in sections 24-25 of the Summary Offences Act 1970.

  • Consorting laws were promulgated through the Vagrancy Act 1835 and were revived in 1929, supposedly to deal with the menace of “razor gangs” in Sydney.
  • In Johanson v Dixon,[37] the High Court rejected the defendant’s argument that he was not guilty of habitually consorting with reputed thieves because he had given a “good account” of his behaviour.
    • He argued that the people he was convicted of consorting with were friends and relations who lived in the same suburb and that the association was purely social and innocent.
    • The court held that “to say no more than that the association was innocent or not unlawful is not to give a good account.” Mason J observed that the legislative policy underlying the provision was designed to prevent even innocent association because it might expose the accused to temptation or lead to their involvement in criminal activity.[38]
    • In dissent, Murphy J stated that “a defendant discharges the burden of proof placed upon him by satisfying the court that it is more likely than not that the consorting is innocent. A good account need not show that there was some lawful purpose other than mere companionship...”[39]
  • In Jan v Fingleton, King CJ wrote that “Apart from the statute the conduct to be punished may be quite innocent. A person may find, by reason of the family into which he was born and the environment in which he must live, that it is virtually impossible to avoid mixing with people who must be classed as reputed thieves... The wisdom and even the justice of such a law may, and often has been, questioned.”[40]
  • In Koncz v Pope,[41] both charges related to consorting with men who were the accused’s first cousins. Koncz was a 19-year-old, unemployed Aboriginal man who lived with his family.
    • On appeal it was argued that the sentence of one month’s imprisonment was excessive given that the maintenance of family ties was of particular importance to Aborigines and it was unreasonable to expect Koncz to cut himself off from his family. The appeal was dismissed.
  • Police have acknowledged that the main purpose of consorting offences was to use the threat of prosecution as a lever to extract information.[42]
  • In 1979 the offences were repealed by a new formulation added to the NSW Crimes Act 1900 under s 546A.
    • The provision is more restrictive than the old offence so far as it relates only to habitual consorting with persons actually convicted of indictable offences (rather than merely having a bad reputation) and the prosecution must prove that the accused knew of the convictions.

Alex Steel examines the offence in “Consorting in NSW: Substantive Offence or Police Power?”:[43]

  • “Consorting continues to be used sporadically by police, primarily as a crude form of intelligence-gathering.”
  • The offence may be useful “in creating a community perception that the police were being proactive.”
  • There is an extreme breadth of discretion that lies with police in relation to consorting. “The main control on this discretionary power appears to be a fear that over-zealous prosecution could lead to a negative precedent with could restrict the power.”
  • Evidence suggests “an official police view that criminality can still be determined through guilt by association and that persons police “know” to be criminals can be prosecuted or harassed as a result of their association with convicted persons.”
  • The “move on” powers of police are more restricted than consorting because of the public harm criteria.
  • Steel argues that the offence of consorting is “an outmoded approach to police powers that should have no place in modern policing.”

Terrorist organisations

Membership of a terrorist organisation

In 2002, in the wake of the September 11 2001 terrorist attacks, the Australian parliament introduced a wide range of new offences designed to strengthen and widen the criminal law in terms of its capacity to deal with terrorism crimes.

  • It criminalised acts of terrorism, various other forms of terrorism-related conduct and created the offence of being a member of a terrorist organisation (s 102.3 of the Criminal Code (Cth)).
  • The maximum penalty for membership is ten years’ imprisonment.
  • Bernadette Sherry has noted that “status offences” have generally been summary offences and that the definition of “‘member’ as including an ‘informal member of the organisation’ and one ‘who has taken steps to become a member of the organisation’ considerably broadens the scope of the offence.”[44]
  • Jenny Hocking has criticised the offence as having “profound implications for freedom of political association and political expression.”[45]
  • Edwina MacDonald and George Williams attack the provisions on several grounds:[46]
    • “Under the provision, a person commits a crime because they are a member of a terrorist organisation, rather than because they have carried out any terrorism-related activity.”
    • Ten years in gaol is a severe penalty.
    • “[I]t can apply to groups of individuals who amount to an organisation under the law, even though they do not regard themselves as an ‘organisation’.”
    • “The terrorist nature of the organisation is determined by the executive arm of government, subject only to the remote possibility that the decision will be disallowed by parliament.”
    • The ‘informal’ aspect “makes the question of when someone has crossed the line into membership very unclear.”
    • Placing the burden of proof on the defendant to prove that they took reasonable steps to cease to member when they realised it was a terrorist group, “creates an unjustifiable risk that an innocent person could be convicted of this serious offence because they cannot prove that they took reasonable steps to cease being a member of a terrorist organisation.”

Associating with a member of a terrorist organisation

In 2004, the law was extended still further under s 102.8 of the Criminal Code (Cth) to address “pre-membership”.

  • Strict liability applies to the circumstances where the organisation has been classified as a terrorist organisation by the regulations.
  • Amnesty International Australian expressed alarm that such a provision is too broad and its scope may cover many types of acts and associations outside its intended purview.
    • “There are numerous instances where a completely innocent person may inadvertently commit an offence under the proposed section.”[47]
  • The Security Legislation Review Committee agreed with Amnesty, noting that “it is quite unclear to the reader what the ambit of the offence may be.”[48]

Redundant Course Material

[49] NB: “Bikie gangs” legislation has been found constitutionally invalid.


End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 1042-43.
  2. (2009) 260 ALR 126.
  3. (1995) 37 NSWLR 256.
  4. Textbook, pp. 1044-1058.
  5. [2010] HCA 30.
  6. [1962] AC 220.
  7. [1973] AC 435.
  8. [1975] AC 842.
  9. (1988) 192 CLR 493.
  10. Sydney's Burning (1967)
  11. [1976] 2 NSWLR 570.
  12. (1981) 148 CLR 32 at 38.
  13. (2002) 4 VR 546 at 556.
  14. (1989) 39 A Crim R 415.
  15. [2004] HCA 10 at [194].
  16. (1991) 60 A Crim R 305.
  17. (1988) 62 ALJR 440 at 441-44.
  18. (1988) 37 A Crim R 229 (VCCA).
  19. (1991) 171 CLR 432 (HC).
  20. Final Report of the NSW Royal Commission into the Police (1997) at 19.
  21. at 185.
  22. (1995) 129 ALR 319.
  23. at 180.
  24. (1984) 58 ALJR 182.
  25. (1974) 59 Cr App R 222.
  26. (1995) 79 A Crim R 149.
  27. [1994] 3 WLR 514.
  28. (1991) 171 CLR 432 (HC).
  29. (1982) 56 ALJR 688.
  30. (1998) 159 ALR 170.
  31. (1982) 56 ALJR 688 at 692.
  32. (1979)44 CCC 2d 281 at 693.
  33. at 696.
  34. Textbook, pp. 1058-1066.
  35. "Pre-Crime and Counter-Terrorism" (2009) 49 Brit J Criminol 628 at 629-30.
  36. "Fxing the Future? The Pre-emptive Turn in Criminal Justice" in Bernadette McSherry, Alan Norrie and Simon Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law (2009) at 57-8.
  37. (1979) 143 CLR 376.
  38. at 385.
  39. at 392-3.
  40. (1983) 32 SASR 379.
  41. (unreported, SASC, 5 August 1982, noted in 7 Crim LJ 48-9.
  42. See A Keenan, "Bring back old consorting laws, detectives say", SMH, 17 July 1985, 3.
  43. (2003) 26(3) UNSWLJ 567 at 592-5.
  44. "Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws" (2004) 27(2) UNSWLJ 354 at 365.
  45. ""counter-Terrorism and the Criminalisation of Politics: Australia's New Security Powers of Detention, Proscription and Control" (2003) 49(3) Australian Journal of Politics and History 355 at 369.
  46. "Combating Terrorism: Australia's Criminal Code since September 11, 2001" (2007) 16(1) Griffith LR 27.
  47. Amnesty International Australia, Submission to the Senate Legal and Constitutional Legislation Committee's Inquiry into the Anti-Terrorism Bill (No 2) 2004 (July 2004) at 6-7.
  48. Report of the Security Legislation Review Committee (June 2006) at [10.66]
  49. Textbook, pp. 1066-1072.
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