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This article is a topic within the subject Criminal Laws.


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. 1030-1042.


[1] In conspiracy two or more people form an agreement to commit a crime or lawful act by unlawful means.[2] Like an attempt, conspiracy extends liability even before the crime has been completed.

  • The fact that an intention to commit a crime is shared by more than one individual is used as a justification for extending criminalisation beyond even attempt to the stage where no steps may have been made to commit the crime.
  • Unlike complicity (where the charge is different, eg, robbery), conspiracy is a separate offence.

The penalty for the common law offence of conspiracy is “at large”, meaning at the judge’s discretion and unlimited by a prescribed maximum penalty.

  • Statutes nominate penalties for some specific conspiracies such as s 26 of the Crimes Act 1900, which prescribes a maximum of 25 years’ for murder.

The rationale for the offence of conspiracy

[3] The main rationale proposed for conspiracy is crime prevention. Arguably this is already covered by attempt but the group element tends to be used as a justification for criminal law intervention at an earlier stage.

F Abbate summarises the main policy justifications as:[4]

  1. An individual is more likely to carry out group commitments than purely private decisions. Having committed to others, it is more difficult to reverse an original decision, since it would require the co-operation of others.
  2. Therefore, there is an increased probability that the harm intended will be produced, and thus, there is now the prospect of a greater amount of harm than that intended by lone individuals.

Peter Gillies[5] notes that it is uncommon for conspiracy to be “genuinely resorted to so as to prevent the apparently imminent commission of a substantive crime or other prescribed unlawful purpose.” It usually in used in one of two circumstances:

  1. Where the object of the alleged conspiracy is a non-criminal unlawful act, conspiracy represents the only mechanism for bringing the agreement within the reach of the criminal law.
  2. In the majority of cases where the alleged conspiracy is an agreement commit a crime, conspiracies are “almost always charged in circumstances where all, or at least some, of the crimes contemplated by them have actually been committed,” however, convictions for the former are easier to secure for procedural and evidentiary reasons.

The elements of conspiracy

It is difficult and artificial to separate the elements of the offence into mens rea and actus reus. It is more useful to focus on what is involved in proving the agreement and the scope of the agreement.

The existence of the agreement

[6] First of all, the prosecution must prove an agreement. The intent to agree with a group to perform an unlawful act, rather than the intent to do the act.

  • The agreement must be intentional – one cannot agree recklessly or negligently.
  • It was noted in Siracusa, that “the mens rea sufficient to support the commission of a substantive offence will not necessarily be sufficient to support a charge of conspiracy to commit that offence.”
  • An intention to enter into an agreement in the future will not suffice, nor will the fact that the defendant knew about the plan.
  • It is not necessary that there be agreement as to the precise manner in which the unlawful act is to be performed (Bolton).[7]
  • “Evidence, particularly of subsequent overt acts, is admissible to demonstrate that such agreement has been reached between the conspirators” (Bijkerk).[8]
  • In the absence of clear actions, the existence of the agreement is often established of conversations, possibly documents, actions in pursuance of the agreement and testimony of witnesses or co-conspirators.
  • In O’Brien,[9] the defendants were charged with conspiracy to effect an escape from prison when they were caught taking photographs of a prison wall where members of the IRA were held.
    • One defendant claimed that he was just testing his camera but he had in his possession an “A to Z Guide” to Birmingham, (the prison was marked) and told a number of transparent lies in connection with his account. In his house a variety of IRA literature and maps or plans were found.
    • “the essence of a conspiracy is an agreement, and persons do not commit a criminal offence merely by talking about the possibility of committing some wrongful or unlawful act unless they reach the stage when they have agreed to commit that act if it lies within their power.”
    • The other defendant turned out to be a police informer and therefore the defence counsel argued that there could not have been a conspiracy between the co-defendants because the informant never intended to go through with the planned escape. (See impossible conspiracies).
  • “Conspiracy is a continuous crime, extending over the period of agreement” (Masters[10])

The scope of the agreement

  • The prosecution must define the nature and scope of the conspiracy as emphasised in LK and RK, “the question of whether a person intends to commit an offence is said to require consideration of what was within the scope of the agreement.”[11]
  • The scope may be difficult to identify in situations involving a number of co-conspirators and a number of separate unlawful acts over a period of time.
  • In Gerakiteys, the prosecution case was found to be “vague and uninformative.”[12]
    • The scope of the conspiracy was wrongly defined as “there was no general conspiracy to which all the [co-conspirators] were parties and no one... was a party to a conspiracy involving...” the fraudulent making of insurance claims with another group other than his own.[13]
    • Therefore the scope of the conspiracy should have been “separate ventures undertaken by claims on insurance companies, originating from the central, fraudulent arrangement...”
    • The scope is important because “a person cannot be found guilty of a distinct and different conspiracy to that which the count in the indictment alleges.”[14]

The rule from Gerakiteys may be taken as being if the prosecution alleges a conspiracy in certain terms it must be able to prove it.

  • In Griffiths, a lime supplier, his accountant and seven farmers were convicted of conspiring to defraud the government under an assistance program known as the Agricultural Lime Scheme. The issue was whether there was one big conspiracy or several small ones.[15]
  • In Meyrick, a number of night club owners paid police not to enforce licensing laws. All nightclub owners came from the Soho area in London and there was evidence that they all intended to participate in a general plan to prevent enforcement of the liquor laws in the district. One big conspiracy was found.[16]
  • In Saffron[17] and Lee,[18] it was held that there were enough similarities or links between the alleged separate conspiracies to sustain an indictment of a single conspiracy.


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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. 1030-1.
  2. Mulcahy v The Queen (1868) LR 3 HL 306 at 317.
  3. Textbook, pp. 1032-3.
  4. F Abbate, "The Conspiracy Doctrine: A Critique" in M Gorr and S Harwood (eds), Controversies in Criminal Law: Philophical Essays on Responsibility and Procedure (1992) 55-67.
  5. Peter Gillies, The Law of Criminal Conspiracy (2nd ed, 1990).
  6. Textbook, pp. 1034-8.
  7. (1992) 94 Cr App R 74.
  8. (2000) 111 A Crim R 443 at 449.
  9. (1974) 59 Cr App R 222.
  10. (1992) 26 NSWLR 450 at 458.
  11. (2010) 266 ALR 399 at 435.
  12. (1984) 58 ALJR 182.
  13. (1984) 58 ALJR 182 at 188-9.
  14. (1984) 58 ALJR 182 at 188-9.
  15. [1966] 1 QB 589.
  16. (1929) 21 Cr App R 94.
  17. (No 1) (1988) 17 NSWLR.
  18. (1994) 76 A Crim R 271.
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