The general objective of this thesis is to examine the many and varied uses of criminal conspiracy. It is concerned therefore with an offence which '...is becoming, if it has not already become, a workhorse of the criminal justice system in the latter half of the twentieth century.' It is concerned with contemporary Australian law in public order and more high profile situations, where ‘the crime of conspiracy is frequently used.’ The thesis aims to outline not just the law itself but the factual situations that generate the offence. These range from the cultivation, importation and supply of drugs, various forms of corporate fraud, tax fraud, misuse of public office, evasion of immigration controls and social security fraud.
Part of the aim of the overview of factual situations where the crime has been charged is to illustrate the many anomalous features associated with the offence, including vagueness and elusiveness of definition as well as procedural and evidentiary difficulties. As the law in Australia is about to change with the mooted national adoption of the Criminal Code Act 1995 (Cth) which confines conspiracy, considerable attention is paid in the conclusion of this thesis to the need for a crime of conspiracy, to the varied uses of conspiracy, to the extent to which the crime has been of any value in law enforcement, and to likely further effects and issues associated with these imminent changes.
The thesis is developed through three parts. The first part deals with the historical background of conspiracy, its links with other inchoate crimes and particular theories. The second part deals with the legal elements of the crime and the common law and statutory definitions of conspiracy. Detailed attention is paid to the intention concept in conspiracy, and an attempt is made to link the debates about the place of intention in conspiracy to broader debates about the place of intention in legal analysis. Thus an attempt is made to relate this aspect of the research topic to the broader framework of knowledge in the disciplinary area in which it falls. Major evidential, procedural and extraterritorial/jurisdictional matters are also dealt with in this section, which is essentially a general overview of the problematic elements of this particular crime. The third part contains representative cases germane to the nature, scope and anomalies inherent in, criminal conspiracy. This section therefore details what Waller and Williams call ‘representative cases on criminal conspiracy. Many of these are English cases. It is suggested in Waller and Williams latest edition that ‘until legislative changes to the law of conspiracy are made in the remaining two common law States in Australia, the English decisions ... will remain of considerable significance.’ However, the primary focus in this thesis is upon Australia, and for the most part, mention is made of English law as an instructive point of comparison, to illustrate in particular departures from principle, conceptual error, casual judicial method and politicised manipulation of basic principles and concepts. Much of the material in this section has not been collected together in a recent Australian work, and this section provides therefore the required original contribution to knowledge. As required for this thesis standard, this section is clearly distinguishable from the introductory material and the survey of the literature.
From the overview of Australian law, it emerges that the common law formulation still 'survives in its fundamentals in all jurisdictions' in Australia except Victoria. Major changes are however afoot in Australia, following the enactment of the Criminal Code Act 1995 (Cth) and its planned national adoption in the year 2000. Much of the conclusion to this thesis therefore examines the way in which the Code will serve to confine the scope of the crime of conspiracy to agreements to commit serious offences punishable by imprisonment of more than a year or by a fine of $20,000. An attempt is made to assess whether the offence once confined in this way will serve the public interest revealed in the outline of the representative cases. This includes a consideration of the exact extent to which other forms of liability may be capable of meeting the needs of law enforcement once conspiracy is so confined: including the Australian proceeds of crime legislation and aiding and abetting, and the American extensions of the concept of conspiracy in its Racketeer Influenced and Corrupt Organisations Act (RICO) to deal with organised crime.
This section also considers whether there might have been other uses for conspiracy than those common uses outlined in the case law section. In order to illustrate some of the difficulties of abandoning conspiracy altogether, decisions such as R v Sorby are noted, drawing upon Waller and Williams use of this case to illustrate how conspiracy can provide an extremely useful weapon with which to fight general criminal organisations and in particular those who direct the general supply of vice and narcotics but are too remote from the individual acts of supply to be struck by laws which govern the complicity of the parties. In the light of the imminent changes, some advice regarding inclusion of specific guidelines with respect to conspiracy, particularly its use in a rolled-up plea, are proffered in the conclusion to this thesis. This too provides an original contribution to knowledge in the disciplinary area, and relates the research topic to the broader framework of knowledge in the disciplinary area in which it falls.