Fiji Magistrates Bench Book - Federal Court of Australia
Fiji Magistrates Bench Book - Federal Court of Australia Fiji Magistrates Bench Book - Federal Court of Australia
• The Court must be satisfied that the defendant knew that an offence had been committed by the principal offender. • Proof that a felony has been committed is sufficient to prove a person guilty of being an accessory after the fact, even if there has not yet been a conviction of the principal offender: R v Anthony (1965) 49 CrAppR. • An accessory cannot be convicted if the principal offender has been acquitted (Hui Chi- Ming v R [1991] 3 All ER 897), so the guilt of the principal offender should be determined before a plea of guilty is taken from an accessory (R v Rowley (1948) 32 CrAppR 147). 4.4 Conspiracy: ss385 – 387 Penal Code Any person who conspires with another to commit any felony, or to do any act in any part of the world that if done in Fiji would be a felony and which is an offence in the place where the felony is proposed to be done, is: • guilty of a felony; and • liable to imprisonment for: 7 years if no other punishment is provided for; or if the punishment for the person convicted of the felony is less than 7 years, then that lesser punishment: s385 Penal Code. Any person who conspires with another to commit a misdemeanour, or to do any act in any part of the world that if done in Fiji would be a misdemeanour and which is an offence in the place where the misdemeanour is proposed to be done, is guilty of a misdemeanour: s386 Penal Code. Other conspiracies Any person who conspires with another to effect any unlawful purpose or effect any unlawful purpose by any unlawful means is guilty of a misdemeanour. Actus Reus • Agreement is the essential element of conspiracy. It is the actus reus of conspiracy. There is no conspiracy if negotiations fail to result in a firm agreement between the parties: R v Walker [1962] Crim LR 458. The offence of conspiracy is committed at the moment of agreement: R v Simmonds & Others (1967) 51 CrAppR 316. An intention between two parties is not enough for a charge. What is required is an agreement between two or more to do an unlawful act by unlawful means: R v West, Northcott, Weitzman & White (1948) 32 CrAppR 152. Fiji Magistrates Bench Book April 2004
• At least two persons must agree for there to be a conspiracy. However, a single defendant may be charged and convicted of conspiracy even if the identities of his or her fellow conspirators are unknown. Mens Rea • Conspiracy requires two or more people to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for conspiracy: Yip Chieu-Chung v The Queen [1995] 1 AC 111. • Knowledge of the facts is only material, in so far as such knowledge throws light onto what was agreed to by the parties: Churchill v Walton [1967] 2 AC 224. • Knowledge of the relevant law that makes the proposed conduct illegal need not be proved: R v Broad [1997] Crim LR 666. The Elements for Conspiracy • There must be an agreement between at least two people. • There must be an intention to carry out an unlawful act. Fiji Magistrates Bench Book April 2004
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• The <strong>Court</strong> must be satisfied that the defendant knew that an <strong>of</strong>fence had been committed<br />
by the principal <strong>of</strong>fender.<br />
• Pro<strong>of</strong> that a felony has been committed is sufficient to prove a person guilty <strong>of</strong> being an<br />
accessory after the fact, even if there has not yet been a conviction <strong>of</strong> the principal<br />
<strong>of</strong>fender: R v Anthony (1965) 49 CrAppR.<br />
• An accessory cannot be convicted if the principal <strong>of</strong>fender has been acquitted (Hui Chi-<br />
Ming v R [1991] 3 All ER 897), so the guilt <strong>of</strong> the principal <strong>of</strong>fender should be<br />
determined before a plea <strong>of</strong> guilty is taken from an accessory (R v Rowley (1948) 32<br />
CrAppR 147).<br />
4.4 Conspiracy: ss385 – 387 Penal Code<br />
Any person who conspires with another to commit any felony, or to do any act in any part <strong>of</strong> the<br />
world that if done in <strong>Fiji</strong> would be a felony and which is an <strong>of</strong>fence in the place where the felony<br />
is proposed to be done, is:<br />
• guilty <strong>of</strong> a felony; and<br />
• liable to imprisonment for:<br />
<br />
<br />
7 years if no other punishment is provided for; or<br />
if the punishment for the person convicted <strong>of</strong> the felony is less than 7 years, then that<br />
lesser punishment: s385 Penal Code.<br />
Any person who conspires with another to commit a misdemeanour, or to do any act in any part<br />
<strong>of</strong> the world that if done in <strong>Fiji</strong> would be a misdemeanour and which is an <strong>of</strong>fence in the place<br />
where the misdemeanour is proposed to be done, is guilty <strong>of</strong> a misdemeanour: s386 Penal Code.<br />
Other conspiracies<br />
Any person who conspires with another to effect any unlawful purpose or effect any unlawful<br />
purpose by any unlawful means is guilty <strong>of</strong> a misdemeanour.<br />
Actus Reus<br />
• Agreement is the essential element <strong>of</strong> conspiracy. It is the actus reus <strong>of</strong> conspiracy.<br />
There is no conspiracy if negotiations fail to result in a firm agreement between the<br />
parties: R v Walker [1962] Crim LR 458.<br />
<br />
<br />
The <strong>of</strong>fence <strong>of</strong> conspiracy is committed at the moment <strong>of</strong> agreement: R v Simmonds<br />
& Others (1967) 51 CrAppR 316.<br />
An intention between two parties is not enough for a charge. What is required is an<br />
agreement between two or more to do an unlawful act by unlawful means: R v West,<br />
Northcott, Weitzman & White (1948) 32 CrAppR 152.<br />
<strong>Fiji</strong> <strong>Magistrates</strong> <strong>Bench</strong> <strong>Book</strong> April 2004
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