seminar 19 conspiracy

7/30/2019 Seminar 19 Conspiracy

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Recap: Soosay (PD)

37 It is inherent in exception 2 that there must be a distinction drawnbetween a situation where a right of private defence has arisen but that righthas been exceeded and a situation where the right has not arisen at all. Inthe absence of any clear authority it is our view that s 100 determineswhether the right of private defence exists or not. On the facts of this casewe have already determined that to us it was inconceivable that Soosay

could have reasonably apprehended that death or grievous hurt willotherwise be the consequence of Lim charging at him dispossessed as hewas of the knife which was now in the possession of Soosay (s 100(a) and(b) of Penal Code). The matter should of course end here.

Questionis s. 100 the governing provision with respect to whether the

right to PD arises? Consider other PD provisions


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Recap: Soosay (PD)

100.The right of private defence of the body extends, under therestrictions mentioned in section 99, to the voluntary causing of death orof any other harm to the assailant, if the offence which occasions theexercise of the right is of any of the following descriptions:

(a) such an assault as may reasonably cause the apprehension that deathwill otherwise be the consequence of such assault;

(b) such an assault as may reasonably cause the apprehension that grievoushurt will otherwise be the consequence of such assault;

(c) an assault with the intention of committing rape;

(d) an assault with the intention of committing non-consensual penilepenetration of the anus;

(e) an assault with the intention of kidnapping or abducting; (f) an assault with the intention of wrongfully confining a person, under

circumstances which may reasonably cause him to apprehend that he willbe unable to have recourse to the public authorities for his release.


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Recap: Soosay (PD)

102.The right of private defense of the bodycommences as soon as a reasonable apprehension ofdanger to the body arises from an attempt or a threatto commit the offence, though the offence may not

have been committed; and it continues as long as suchapprehension of danger to the body continues.

105.(1) The right of private defense of propertycommences when a reasonable apprehension ofdanger to the property commences.

Given s. 102 and s. 105 (1)Shouldnt s. 100 relateto the extent of your exercise of PD?


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Criminal conspiracy

S. 120B


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Recap: abetment by instigation

AR: Communication (this is objectively determinedif fromthe facts it could be said there was communication)

MR: intended to perform act of instigation, encouragement;aware of elements of offense

Separate the AR and MR inquiry

Essence of abetment by instigation is that you encouraged

Therefore AR that there needs to be communication

However, communication does not need to affect or influencetarget (UK case law) Focus is on the A

If A did contributethen abetment by aiding


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Conspiracy

Definition of criminal conspiracy120A.(1) When 2 or more persons agree to do, or cause to

be done

(a) an illegal act; or

(b) an act, which is not illegal, by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit anoffence shall amount to a criminal conspiracy unless some act

besides the agreement is done by one or more parties to suchagreement in pursuance thereof.


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Conspiracy

43.The word illegal or unlawful

is applicable to every thing which is an

offence, or which is prohibited by law, or

which furnishes ground for a civil action: and a

person is said to be legally bound to do

whatever it is illegal or unlawful in him to

omit.


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Conspiracy: punishment

120B.Whoever is a party to a criminal

conspiracy to commit an offence shall,

where no express provision is made in this

Code for the punishment of such a conspiracy,

be punished in the same manner as if he had

abetted such offence.


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Conspiracy: AR MR

AR: an agreement to commit an offense or other

unlawful act (based on the objective facts of the case,

could it be said that there was an agreement reached)

MR: an intention to carry out the AR of agreement(did the A have the intention to carry out the specific,

objectively observable agreement?)

Note: do not mix up the AR and MR


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Agreement

Like abetment by conspiracy, must have agreementwith at least one other person

Meeting of minds rather than coincidence

Can join existing agreement Saleem-Ud-Din v State: conspiracy is like a running

stream. Some persons join it at the beginning while othersjoin it later. But they are all parties to the same generalconspiracy

There is no need to agree face to face

There is no need to know of or have met all co-conspirators


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Agreement

To what degree must As know of the details

of the agreement (refer to last weeks slides)


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Conspiracy: MR

Intention that the agreement be carried out

Kannan K, O, R agreed to bribe L (Spore goalkeeper) to influence match

oucome. R thought agreement carried out, paid $ to K and O. L was

never approached. Held: agree connotes a true intention to enter into the agreement,

which in turn connotes an intention to carry into effect the agreement.

Had it been the legislative intention to catch a pretence conspirator,the words or purport to agree would have been added in thedefinition. The mens rea required for that would then be a mere

intention to pretend to enter into the agreement by the time the $80,000 was received by the second appellant, he had

no intention at all to offer it to him . (at the time of makingagreement had the intent)


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Conspiracy: MR

Lau Song Seng

Suggests that A must additionally intend to contribute toimplementation of agreement

Otherwise mere knowledge or consent to a criminal

scheme involving other individuals would attract liabilityfor a criminal conspiracy

But why should A intend to be involved in agreement

implementation? Essence of conspiracy is theagreement (idea that conspiracies are dangerous

because they facilitate crimes more easily)


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Conspiracy: withdrawing

Should withdrawal be relevant?

Conceptually:

offense is completed at the point of agreement (notesame

punishment scheme as abetment)

Defense of withdrawal

Public policy reasons: encourage withdrawal

YMC: argues that should recognized defense of voluntary

withdrawal (similar to that recognized in firearms offense

lawreasonable efforts taken to prevent the commission of

the crime)


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Conspiracy: impossibility

Agreement impossible to be performed Conflicting case law: depending on how conspiracy is definedas a

conspiracy to achieve an end by whatever means or to achieve an end by aspecific means

Hiremath (murder by witchcraftconspiracy to commit murder) an agreement to commit murder being an agreement to commit an offense,

falls within s. 120B and nonetheless so, in my opinion, because the means bywhich the murder is to be perpetrated are not agreed upon, or the means whichare agreed upon are such as are not likely to prove, and do not in fact prove,effective

If there is a conspiracy to commit murder, the case falls within s. 120B, theoffense under that section being the conspiracy, and not the acts by which thesubject matter of the conspiracy is to be carried into effect

DPP v Nock (conspiracy to produce cocaine by using a specific compound) Compound used could never produce cocaine under any circumstances.

Held: Not guilty of criminal conspiracy


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Conspiracy: impossibility

S. 120.A

(2) A person may be a party to a criminal conspiracy

notwithstanding the existence of facts of which he

is unaware which make the commission of the illegalact, or the act, which is not illegal, by illegal means,

impossible.

Why no mention of offense? Offense included in the

definition of illegal.

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