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Conspiring to do the Impossible
The Queen v Barbouttis
Commentary on an appeal to be heard against a judgment of the
NSW Court of Criminal Appeal (reported in (1995) 37 NSWLR 256)
by Malcolm Barrett
Associate Lecturer, Faculty of Law
James Cook University of North Queensland
Catchwords:
Criminal law - application by Crown - alleged conspiracy - whether
offence of conspiracy where the object of the agreement is to commit an unlawful
act, which unknown to the parties is physically impossible to commit - whether
principles in`relation to the effect of physical impossibility on crime of
attempt apply to crime of conspiracy - whether DPP v Knock [1978] AC 979 should
be followed in Australia.
1. Introduction
1. | In the decision of R v Barbouttis (1995)
37 NSWLR 265 the Court of Criminal Appeal was asked to decide the relevance of
impossibility to a charge of criminal conspiracy. The defence of impossibility
as it applies to the 'auxiliary' crimes of conspiracy, attempt, and incitement
has long been debated. Judges and commentators have developed two principal
approaches to the defence of impossibility. The subjective approach states that
it is criminal for a person to do an act or enter an agreement with the belief
that a substantive offence will be committed. The fact that the substantive
offence may be impossible to commit is irrelevant. Impossibility is a defence
only if (in the language of conspiracy) the agreement is to do that which is not
a crime. For example, if two people agree to commit adultery with the false
belief that it is a crime, they cannot be convicted of conspiracy. In contrast,
the objective approach states that if two or more people agree to commit a crime
that is factually or legally impossible to achieve, they cannot be convicted of
conspiracy. |
2. | The objective approach came to prominence
with the House of Lords decision of Haughton v Smith [1973] UKHL 4; [1975] AC 476. Their
Lordships held that factual impossibility is a defence to a charge of criminal
attempt. In DPP v Nock [1978] AC 979, the House of Lords decided that the
objective approach should also be applied to the law of conspiracy. In the 1970s
and early 1980s the Australian State courts followed Haughton v Smith and
applied the objective approach. Nock was also approved by a number of State
courts and the Federal Court. Since 1987, State courts have refused to follow
Haughton v Smith and have applied the subjective approach to the law of attempt.
In recent decisions some Judges have indicated that the subjective approach
should also be applied to the crime of conspiracy. In the decision of R v
Constantinos [unreported, 31 August 1995 (CCA NSW)], the Court of Criminal
Appeal in a joint judgment questioned whether Nock represents the common law of
New South Wales: |
"[I]t has been pointed out that Nock has been trenchantly criticised, and not
followed in England ... It is at least doubtful that Nock represents the present
law in this State ... ."
3. | In Barbouttis, the court was not able to
deliver an unanimous decision. Gleeson CJ, dissenting, endorsed the subjective
approach, Dunford J endorsed a narrow objective approach and Smart J endorsed a
broad objective approach. The approaches adopted by the Court of Criminal Appeal
are discussed below. It is submitted that many of the difficulties with the law
of impossibility identified by judges and commentators can be resolved by the
application of the approach of absolute impossibility, which will be outlined
below. |
2. Barbouttis: The facts
4. | In R v Barbouttis (1995) 37 NSWLR 265,
the respondents entered into an agreement to purchase from an undercover police
officer fifty boxes of cigarettes at $400 per box, approximately $1300 below the
retail price for each box. The police officer represented to the respondents
that the cigarettes were stolen. The officer showed the boxes of cigarettes to
the respondents and they agreed to take delivery. A sum of money was paid for
the goods. In fact the cigarettes had not been stolen. The respondents were
charged with conspiring to commit the offence of receiving stolen property in
contravention of s 188 of the Crimes Act 1900 (NSW). They were granted an order
by a District Court judge quashing the indictment. The judge applied the
decision of DPP v Nock [1978] AC 979 as approved by the New South Wales Court of
Criminal Appeal in R v Kingswell (1984) 14 A Crim R 211. The court held that the
crime of conspiracy is not committed when, unknown to the parties, it would be
impossible to accomplish the criminal objective by the course of conduct agreed.
As the cigarettes were not stolen, the crime of conspiring to receive stolen
property was not committed. The Crown unsuccessfully appealed to the Court of
Criminal Appeal. The three approaches adopted by the Judges in Barbouttis will
now be considered. |
3. Subjective approach
5. | On appeal, Gleeson CJ (dissenting)
refused to follow the House of Lords decision of DPP v Nock [1978] AC 979. His
Honour held that the subjective approach should be applied. In Nock the
defendants had agreed to produce cocaine by extracting it from a substance in
their possession that they believed to be a mixture of cocaine and lignocaine.
The substance was in fact lignocaine hydrochloride from which it is impossible
to extract cocaine. The defendants were tried and convicted of conspiring to
produce a controlled drug in contravention of s 4 of the Misuse of Drugs Act
1974. The conviction was appealed on the basis that the limited agreement to
produce cocaine from the substance was impossible to complete. Lord Scarman, who
delivered the leading judgment, held that the obiter of Haughton v Smith [1973] UKHL 4; [1975]
AC 476 should also apply to the crime of conspiracy. In Haughton v Smith the
court formulated a 'steps test': the crime of attempt is not committed when
steps are taken, which are thereafter completed without the commission of a
crime, or when steps are taken which if completed, would not be criminal. The
agreement in Nock could not constitute the crime of conspiracy to produce a
controlled drug, as in the circumstances the substantive offence was factually
impossible to complete. |
6. | In R v Barbouttis (1995) 37 NSWLR 265,
Gleeson CJ also derived assistance from the law of attempts. The Chief Justice
cited with approval the House of Lords' decision of R v Shivpuri [1987] 1 AC 1.
In Shivpuri, Lord Bridge of Harwich, stated that: |
"I am satisfied on further consideration that the concept of "objective
innocence" is incapable of sensible application in relation to the law of
criminal attempts. The reason for this is that any attempt to commit an offence
which involves "an act which is more than merely preparatory to the commission
of the offence" but for any reason fails, so that in the event no offence is
committed, must ex hypothesi, from the point of view of the criminal law, be
"objectively innocent." What turns what would otherwise, from the point of view
of the criminal law be an innocent act into a crime is the intent of the actor
to commit an offence. ... These considerations lead me to the conclusion that
the distinction sought to be drawn ... between innocent and guilty acts
considered "objectively" and independently of the state of mind of the actor
cannot be sensibly maintained." (at 21-2)
7. | The Chief Justice noted that Shivpuri was
followed by the Full Court of the Supreme Court of Victoria in Britten v Alpogut
[1987] VR 929. In Britten v Alpogut the court held that the decision of Haughton
v Smith did not state the common law of Victoria. Since the decision of Britten
v Alpogut, Australian Supreme Courts have either declined to follow Haughton v
Smith, or expressly approved the decision of Shivpuri (see for example R v Lee
(1990) A Crim R 187; R v English (1993) 10 WAR 345; 68 A Crim R 96; R v Prior
(1992) 65 A Crim R 1; R v Kristo (1989) 39 A Crim R 86; Baldock v Barnes (22
June 1993, unreported); and R v Mai (1992) 26 NSWLR 371). Gleeson CJ concluded
that the Australian Supreme Courts' rejection of Haughton v Smith has impacted
upon the persuasive value of Nock and R v Kingswell (1984) 14 Crim R
211. |
8. | Although Gleeson CJ unequivocally
rejected the objective approach, His Honour did not answer the criticisms of the
subjective approach or analyse its application. In Haughton v Smith, Lord Reid
stated that the application of the subjective approach to the law of attempts
would reverse the role of the actus reus and mens rea. Where acts committed
could not possibly be converted into a crime, people would be punished for their
guilty intention alone. Lord Reid stated that: |
"The theory is really an attempt to punish people for their guilty intention.
... [S]uch a radical change in the principles of our law should not be
introduced in this way [by the courts] even if it were
desirable."
9. | In Barbouttis, Smart J endorsed the
statements of Lord Reid and held that they apply equally to the crime of
conspiracy. |
10. | A second criticism of the subjective
approach is that it produces 'unfair' or 'unjust' results as can be illustrated
by the following example. Two people on their return to Australia from abroad
agree to hide a number of gold necklaces in their luggage. They mistakenly
believed that the necklaces had been made in Thailand and were thus dutiable. In
fact the necklaces were made in Australia and were not dutiable. On the
subjective approach the couple could be convicted of conspiring to smuggle (see
s 233 Customs Act 1901 (Cth)). In contrast, if the couple had been correct and
the necklaces had been made in Thailand but unknown to them Thai Gold products
had just been removed from the duty list, they could not be convicted of the
crime of conspiracy. In both situations the couple intended to do an act that
they believed to be a crime, and in both cases they did not come close to the
commission of a substantive offence. The legal difference between the two
scenarios is that, in the first case, the couple made a mistake of fact, in the
second they made a mistake of law (see the example of 'Lady Eldon' in H Gross, A
Theory of Criminal Justice (1979) at 209).Yet it is difficult to identify any
ethical distinction between the two scenarios. It is impossible to differentiate
between the two cases on the basis that the subjective approach prevents
criminal activity by punishing those with the propensity to commit actual
offences. For example, in the second scenario, if the couple were engaged in a
business venture to profit from the avoidance of duties, their failure to gain a
competitive advantage may have forced them to change products from smuggling
gold necklaces, to smuggling some other dutiable piece of jewellery. The
subjective approach does not adequately explain why defendants should be
punished when they have not come close to the commission of a substantive
offence or to the infliction of 'social damage'. It is only when an agreement
has a deleterious impact that 'social damage' is inflicted. In contrast,
subjectivists such as Professor Williams argue that those who lack the requisite
mens rea but cause actual 'social damage' should not be punished [see J Temkin,
'Impossible Attempts-Another View' (1976) 39 MLR 55]. |
11. | The abolition of the objective approach
is justified on utilitarian grounds. Gleeson CJ postulates that the objective
approach has a deleterious impact on the legitimate 'entrapment' operations of
undercover police officers. His Honour stated that: |
"In recent years, because drug trafficking has occupied so much of the attention
of law enforcement agencies, and because of the methods used by police to detect
offenders, this whole issue has taken on considerable practical importance. It
is not uncommon for the importation, manufacture, or dealing in illegal drugs to
take place under police surveillance, and with the involvement of undercover
operatives. Nor is it uncommon for illegal drugs to be intercepted, and for
other, harmless, substances to be substituted. Many cases now come before the
courts where for example, persons handling what they believed to be heroin were
in truth handling a substance such as plaster of Paris ... ." (at
262)
12. | It is settled law that if a person
commits a crime he/she is guilty of an offence, even if they were induced to do
so by the criminal activities of law enforcement officers (see Ridgeway v The
Queen [1994] HCA 33; (1995) 184 CLR 19 at 28; 78 A Crim R 307 at 311-312). It is submitted,
however, that issues of substantive law should not be decided in order to
facilitate police involvement in such inducement activities. |
4. Narrow objective approach
13. | The subjective and objective approaches
are not clearly delineated and tend to overlap. Dunford J endorsed a narrow
objective approach but agreed with the Chief Justice that DPP v Nock [1978] AC
979 had lost its persuasive authority. Dunford J stated
that: |
"[I]f the alleged conspiracy had been carried out, no substantive offence would
have been committed because the goods had not been stolen even though the
accused mistakenly believed they had been, and proof of the stolen character of
the goods is fundamental to a conviction under the section: [s 188 of the Crimes
Act 1900 NSW receiving stolen property] ... It follows that the conspiracy
alleged in this case was not an agreement to do an unlawful act because the act
agreed to be done, that is, receive the cigarettes, was not an unlawful act nor
was it an agreement to do a lawful act by unlawful means: and so it was not, in
my view, a criminal conspiracy." (at 278)
14. | The above statements are consistent with
the 'legal impossibility' approach adopted by Scott J (dissenting) in R v
English (1993) 10 WAR 345; 68 A Crim R 96. In English the respondent inspected
and agreed to purchase a motor vehicle that he mistakenly believed to be stolen.
The respondent was charged with attempting to receive a stolen motor vehicle in
contravention of s 144 of the Criminal Code 1913 (WA). The trial judge held that
there was no case to answer. The Crown successfully appealed to the Court of
Criminal Appeal. Murray J, with whom Franklyn J agreed, rejected the objective
approach and held that impossibility is irrelevant unless a person attempts to
commit a 'crime' not known to the law. In contrast, Scott J stated that it is an
element of the offence of receiving, that the property be obtained by an act
that constitutes an indictable offence. His Honour held that as the motor
vehicle was not stolen an element of the offence was absent and therefore it was
'legally impossible' for the respondent to have committed the offence of
attempting to receive stolen property. A broad definition of 'legal
impossibility' based on the absence of an element of the substantive offence is
consistent with the House of Lords decision in Haughton v Smith [1973] UKHL 4; [1975] AC 476
(see B Hogan, 'The Criminal Attempts Act Attempting the Impossible' [1984] Crim
LR 584 and P Gillies, Criminal Law (3rd ed 1993) at 668, in support of a broad
approach to 'legal impossibility'; see G Williams, 'The Lords and Impossible
Attempts or Quis Custodiet Ipsos Custodes?' (1986) 45 Cambridge LJ 33 against
the broad approach). |
15. | Although the approach adopted by Dunford
J is in application consistent with that adopted by Scott J in English, His
Honour refused to apply the law of impossibility to the facts of the appeal.
Dunford J developed what will be referred to as the 'deeming the impossible
possible steps' (DIPS) test. His Honour stated that: |
"If the alleged conspirators in Director of Public Prosecution v Nock had
succeeded in carrying out their agreement to produce cocaine from the mixture
they had (which was impossible), they would have committed a substantive
criminal offence and similarly, to borrow the example referred to by the Chief
Justice, if the two robbers had succeeded in robbing the country branch of the
bank (which was impossible because the branch had previously closed down) they
also would have committed a substantive criminal offence; but on the other hand,
if the appellants in the present case had succeeded in carrying out their
agreement by acquiring the cigarettes which were in the back of the truck (which
was in fact possible), they would not have committed any substantive criminal
offence because the goods were not stolen." (at 279)
16. | According to Dunford J, both the object
of the agreement and the steps taken (or those intended to be taken) must be
objectively innocent. |
17. | The DIPS test is subject to criticism on
a number of grounds. First, the decision recognises arbitrary distinctions based
on the words used to describe the agreement reached. If the object of the
respondents' agreement is described as one to purchase cigarettes as stolen
property (which was in fact impossible) the parties to the agreement would have
committed the offence of conspiring to receive stolen property. His Honour fails
to provide guidance on the classification of agreements: should an agreement to
kill X, who is already dead, be treated as an agreement to kill X or as an
agreement to kill X's corpse. Though both such agreements are impossible to
complete the former classification would render the conspirators liable to
punishment, while the DIPS test does not expressly provide for the latter
classification. |
18. | Second, it is self-contradictory to
suggest that individuals can carry out their agreement if, in fact, the
agreement is impossible to perform. |
19. | Third, the DIPS test focuses on whether
a substantive offence would be committed if certain impossible steps are taken.
The approach is inconsistent with the general principles of the law of
conspiracy as the commission of the offence is dependent on whether an unlawful
agreement is reached, not upon whether steps are taken to complete the
substantive crime. |
5. Broad objective impossibility approach
20. | Smart J held that there could be no
crime of conspiracy despite the respondents' mistaken belief that the specific
cigarettes were stolen. It follows from Smart J's approval of the judgment of
Lord Reid in Haughton v Smith [1973] UKHL 4; [1975] AC 476 that His Honour endorses a broad
objective approach. Smart J stated that: |
"Lord Reid could not accept that a person took steps towards committing a crime
where there was no crime to commit. He did not regard taking steps in the belief
that a crime was going to be committed as sufficient. He was not prepared to
regard such steps as going beyond the intent stage although he recognised that
the person had a wicked intent and had taken steps designed to result in the
commission of a crime. In Lord Reid's opinion acts going nowhere, that is, where
no substantive offence could be committed, should not result in or lead to
criminal responsibility. For him [Lord Reid] the acts had to be capable of
leading to the commission of a crime." (at 272)
21. | Since the decision of R v Shivpuri
[1987] 1 AC 1, however, most Australian State courts have rejected the objective
approach to the law of attempt and have refused or declined to follow Haughton v
Smith, leading Smart J reluctantly to hold that the law of attempt and
conspiracy need not be treated as analogous. |
22. | The endorsement of the objective
approach is based on the desire to avoid prosecutions in situations when common
sense would regard conduct as trivial. Commonly cited examples include: the
lustful youth who has sexual intercourse with a girl over sixteen with the
belief that she is under that age, the person who takes their own umbrella with
the belief that it is someone else's, and the art dealer who sells a painting as
an original with the belief that it is a fake, when in fact it is genuine. These
examples can be applied to the law of conspiracy with the inclusion of a second
person and an agreement. Smart J rejects the argument advanced by the Law
Commission (UK) (Report No 102 Criminal Law, Attempt and Impossibility in
Relation to Attempt, Conspiracy and Incitement, 1980) that where trivial
agreements are reached, prosecutors will act in the public interest and exercise
their discretion not to proceed. His Honour said: |
"I interpolate that I would not be content to rely on prosecutional discretion
not to prosecute in extreme and exceptional circumstances." (at
275)
23. | Smart J does not clearly define the
scope of the impossibility defence. His Honour made no reference to the
exceptions to the objective approach. Since the decision of R v Donnelly [1970]
NZLR 980, the courts consistently have held that impossibility is no defence if
caused by the interference of an outside agency, or because of inadequacy of
means (see, for example, Collingridge v R (1976) 16 SASR 117; R v Gulyas (1985)
2 NSWLR 260; 15 A Crim R 475; R v Kristo (1989) 39 A Crim R 371; Yooyen v R
(1991) 57 A Crim R 226). The objective approach has been criticised because the
distinction between factual impossibility and impossibility caused by inadequacy
of means is difficult to maintain. For example, in DPP v Nock [1978] AC 979 the
failure of the defendant to extract cocaine from the specific substance could
have come within the inadequacy of the means exception. |
24. | Smart J does not answer the criticisms
of the objective approach made by judges such as Lord Bridges in Shivpuri and
Murphy J in Britten v Alpogut [1987] VR 929. His Honour fails to explain why a
chance event, that renders the conspirators' objective impossible, should
provide the accused with a defence. For example, in accordance with the
objective approach there is no liability if two people agree to receive stolen
property but unknown to the 'conspirators', just prior to their agreement, the
stolen goods are detected by police and returned to lawful custody. By contrast
if the goods are detected just after the parties reach an agreement they would
be liable to be punished. |
6. Classification of the Crime of Conspiracy
25. | In the Court of Appeal both Gleeson CJ
and Dunford J question the legitimacy of Lord Scarman's premise, in DPP v Nock
[1978] AC 979, that the crimes of conspiracy and attempt are 'auxiliary' crimes
and therefore should be treated alike. As noted above, Smart J albeit
reluctantly held that the conclusion of the premise is not correct. The decision
of R v Sew Hoy [1994] 1 NZLR 257 was referred to by both Gleeson CJ and Dunford
J. In Sew Hoy the court stated that: |
"[T]here is much force in the view that conspiracy is properly to be seen as an
act inherently culpable." (at 264)
26. | The charge in Sew Hoy was one of
conspiracy to defraud revenue. It is prudent that any distinction in the
classification of the crime of conspiracy enunciated in Sew Hoy be treated with
caution. There is good justification for not classifying conspiracy to defraud
as an 'auxiliary' offence. At common law there is no general substantive offence
of fraud. The crime of conspiracy to defraud, therefore, does not require an
intent to commit a substantive crime. |
27. | The term 'auxiliary' crime was not
defined by Gleeson CJ and Dunford J, nor do their Honours provide an alternative
to the classification of the crime of conspiracy with that of attempt. The House
of Lords in Nock relied on the classification of conspiracy as an 'auxiliary'
offence in reaching its decision that the law of impossibility applied equally
to conspiracy as it did to attempt. If conspiracy is not to be treated as an
'auxiliary' offence then the law of impossibility, as applied to conspiracy, is
left without adequate justification. The rejection of conspiracy as an
'auxiliary' offence requires that the application of impossibility to the law of
conspiracy be justified independently of the law of attempts. Conversely,
rejection of the defence of impossibility should be justified with limited
reference to the law of attempt, which is contrary to the approach adopted by
Gleeson CJ and Dunford J. |
28. | It is submitted that the term
'auxiliary' crime, also referred to as 'inchoate' crime or 'preliminary' crime,
provides a convenient and useful classification of the offences of conspiracy,
attempt and incitement. The offences make punishable conduct that is not an end
in itself, but which is culpable because of what is intended to be achieved.
'Auxiliary' crimes require an intention to commit a separate specific crime. The
crime of conspiracy is complete upon agreement, but the substantive crime may
remain incomplete [Russell On Crime (12 th ed Vol 1 1964) at 172-173]. The
justification for the crime of conspiracy is that it enables the law to
intervene and prevent the commission of a substantive offence. It is the
inchoate crime intended for completion that makes an agreement culpable. In
contrast, as stated above, the court in Sew Hoy stated the view, that the crime
of conspiracy is inherently culpable (see also I Dennis, 'The Rationale of
Criminal Conspiracy'(1977) 93 LQR 39). Such an approach is inconsistent with
that adopted by the Model Criminal Code Officers Committee (MCCOC) in its final
report titled General Principles of Criminal Responsibility (1992). Section
11.5(2)(c) of the Criminal Code Act 1995 (Cth) which adopted the recommendations
of MCCOC states that: |
"(2) For a person to be guilty of conspiracy ...
(c) the person of at least one other party to the agreement must have committed
an overt act pursuant to the agreement."
29. | It is clear from s 11.5(2)(c) of the
Criminal Code Act 1995 (Cth) and MCCOC's final report (at 101) that a simple
agreement is not regarded as inherently culpable. |
30. | The challenge to the status of
conspiracy as an 'auxiliary' crime is justified by reference to the differences
between the crime of conspiracy and the crime of attempt. The crime of
conspiracy punishes those who enter into an unlawful agreement. The crime of
attempt punishes individuals who not only intend to commit a crime, but take
steps that are more than preparatory towards the commission of that crime. It is
submitted that the differences between the crimes of attempt and conspiracy do
not undermine their classification as 'auxiliary' offences. It follows that if
an objective approach is to be applied to the crime of conspiracy, the law of
attempts as stated in recent Australian decisions will need to be reconsidered
(but see GF Orchard, 'Impossibility and the Inchoate Crimes' [1978] NZLJ 403 at
411 for an argument that the crimes of attempt and conspiracy can be classified
as 'auxiliary' offences but treated differently for the purpose of the law of
impossibility). |
7. Terms of the agreement
31. | It is submitted that Lord Scarman's
failure to clearly define the test of impossibility has caused the decision of
DPP v Nock [1978] AC 979 to be misunderstood. His Lordship did not expressly
singularise the 'steps test' in its application to the law of conspiracy.
Liability for conspiracy is determined not by steps taken, but by the single
step of reaching an agreement. It is clear, however, that the House of Lords in
Nock held that the applicability of the defence of impossibility is determined
by the terms of the agreement. Lord Russell of Killowen stated
that: |
"The important point to note is that the agreement that is said to have been an
unlawful conspiracy was not an agreement in general terms to produce cocaine,
but an agreement in specific terms to produce cocaine from a particular powder
which in fact, however treated, would never yield cocaine. In order to see
whether there is a criminal conspiracy it is necessary to consider the whole
agreement. The specific limits of the agreement cannot be discarded, leaving a
general agreement to produce cocaine, for that would be to find an agreement
other than that which was made: and that is not a permissible approach to any
agreement, conspiracy or other." (at 993)
32. | In R v Barbouttis (1995) 37 NSWLR 256,
the Crown alleged that the respondents entered into a specific agreement to
purchase particular cigarettes that they mistakenly believed to be stolen.
Gleeson CJ rejected the distinction between general and specific agreements on
the basis that it simply states the 'motivation theory'. The 'motivation theory'
accepts that parties to a conspiracy can be judged objectively if their mistaken
belief is incidental and not central to their agreement. For example, if the
desire is to obtain specific goods, parties to an agreement should not be
punished if they mistakenly believe that the property is stolen. If the desire
is to obtain stolen goods, the legal status of the property is central to their
conspiracy and the parties should be punished. When the crime is impossible to
commit, the motivation of the conspirators determines liability. The Chief
Justice rejects the 'motivation theory' for the same reasons that Professor
Glanville Williams criticises its application to the law of attempts [see 'The
Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?' (1986) 45
Cambridge LJ 33 at 77-80]. His Honour concluded that: |
"I find it impossible to regard the (alleged) belief on the part of the parties
to the agreement that the cigarettes were stolen as a merely incidental matter.
... If a person intends to receive goods which he knows or believes are stolen,
then he intends to receive stolen goods." (at 266)
33. | The process of identifying the terms of
an agreement may reveal the parties' motivations. It is submitted, however, that
an approach that emphasises the precise terms of an alleged conspiracy, does not
necessitate an enquiry as to the participants' motivations. |
34. | It was central to Dunford J's decision
that the terms of the agreement were to receive specific. As stated above, the
DIPS test makes it difficult to determine which terms should be used to describe
an agreement. The broad objective approach adopted by Smart J focuses on whether
it is possible to commit the crime. It is, of course, true that the broader the
terms of the agreement the more likely it is that a crime could be
committed. |
8. Absolute impossibility
35. | The Court of Criminal Appeal in R v
Barbouttis (1995) 37 NSWLR 265 did not consider the developments in the law of
impossibility since the decision of DPP v Nock [1978] AC 979. The scope of the
test applied in Nock was clarified by the decision of R v Bennett (1978) 68 Cr
App R 168. The English Court of Appeal confined the defence to cases of absolute
impossibility. The Court stated that: |
"It seems to us that in that case [DPP v Nock] the House of Lords was using
"impossible" to mean something which at the time of the agreement and at all
times thereafter made it physically impossible for the agreement to be carried
out in any circumstance or to result in the commission of the criminal offence
in question. ... In our opinion, there is a fundamental distinction between an
agreement which when made, could never, if carried out, result in the commission
of the criminal offence alleged, because the result is physically or legally
impossible (DPP v Nock (supra) and Haughton v Smith (supra)) and an agreement
which would, if carried out in accordance with the intention of the parties,
result in the commission of the criminal offence alleged ... ." (at
177-178)
36. | The approach of objective absolutism was
referred to with approval in R v Kingswell (1984) 14 A Crim R 211 and R v Wilk
(1982) 32 SASR 12 (see also R v Gulyas (1985) 2 NSWLR 260 at 263 and R v English
(1993) 10 WAR 355 at 370-371; 68 A Crim R 96 at 110-111, for the application of
absolute impossibility to the law of attempt). |
37. | The reasoning that underlines Nock can
be rationalised by reference to the concept of absolute impossibility as
explained in Bennett, provided that due consideration is given to the explicit
terms of the agreement. It may be absolutely impossible to commit a crime if the
terms of the agreement are specific. By contrast, the defence of absolute
impossibility will have no application if the terms of an agreement are 'at
large': An agreement is at large if it is framed in broad terms, or if a single
transaction is merely an example of criminal proclivity or tendency. For
example: |
(a) | It is absolutely impossible to commit an
offence if the agreement is to receive a specific car that is not stolen. It is
irrelevant that the parties to an agreement mistakenly believe that the vehicle
is stolen. On the other hand an agreement to receive a stolen car is possible to
achieve and the fact that the car produced is not stolen is irrelevant (see the
facts of R v English (1993) 10 WAR 355; 68 A Crim R 96, for an analogy in the
law of attempt). |
(b) | The defence of absolute
impossibility would apply to an agreement to import a specific substance with
the mistaken belief that it is cocaine. The defence would have no application if
the agreement to import the harmless substance is part of a larger enterprise to
enter the 'business' of drug importation and
supply. |
(c) | It is absolutely impossible to
commit an offence if the agreement is to have consensual sexual intercourse with
a girl who is over the age of 16 years. It is irrelevant that the parties to the
agreement mistakenly believe that the girl was under 16 years (s 66C Crimes Act
1900 (NSW)). The defence would not apply if the agreement was to have sex with
girls who are under 16 years. The fact that the first and only 'victim' (due to
the intervention by police) is over 16 years is
irrelevant. |
(d) | It is absolutely impossible to
commit an offence if the agreement is to poison a healthy person by giving
her/him a glass of water with a small dose of fluoride. It is irrelevant that
the parties to the agreement mistakenly believe that a glass of water with small
quantities of fluoride can poison. The defence would have no application if the
agreement is to poison someone. |
(e) | The defence
of absolute impossibility would apply to an agreement to commit adultery. The
fact that the parties mistakenly believe that adultery is a crime is irrelevant.
|
38. | There are significant advantages to an
approach based on absolute impossibility. First, the approach is consistent with
the general principles of the law of conspiracy. Liability is dependant upon the
terms of the agreement. Second, it simplifies the law of impossibility and
avoids unnecessary distinctions. It abolishes the need to distinguish between
legal and factual mistakes and between general factual impossibility and
impossibility caused by inadequacy of means as the only question that has to be
answered is whether the agreement is absolutely impossible to complete. As
stated above, these distinctions are not easily maintained and in practice can
produce arbitrary outcomes. Third, the approach is consistent with the raison
d'?tre of the crime of conspiracy. The offence of conspiracy provides for the
early intervention by the law to prevent the commission of substantive crimes.
The police could continue to collect evidence by surveillance and involvement in
undercover operations. As in Barbouttis, if the evidence is of a single
transaction, the Crown must prove that the terms of the agreement are 'at
large'. For example, on a charge of conspiring to receive stolen property,
evidence that the quantity of goods involved is substantial and the defendants
have established distribution channels may prove that they are in the 'business'
of dealing in stolen property. In situations where the police act as an 'agent
provocateur', lack of evidence of general criminal intent would entitle the
accused to the defence of impossibility. Fourthly, prosecutions will be avoided
in situations where the accused's behaviour can be described as trivial. As
Glanville Williams argues, in certain circumstances the offence of receiving
stolen property (for example) is not a serious offence (see 'The Lords and
Impossible Attempts or Quis Custodiet Ipsos Custodes?' (1986) 45 Cambridge LJ
33): |
"Buying the occasional stolen article is not a very serious crime, whatever the
law says. When the thing is stolen the owner loses it and it passes into the
possession of criminals. The owner may not be worse off because someone buys it
from the thief. If it turns out that the thing was not stolen or cannot be
proved to be, the whole affair becomes too minor to justify a prosecution ... ."
(at 39)
39. | The absolute impossibility approach
presents some hazards for the prosecution. Evidence that an alleged conspiracy
is 'at large' may support a finding that the terms of agreement are not
sufficiently certain to constitute a crime. In R v Reid (1992) 1 Tas R 149, the
respondents entered an agreement to steal money from a club or business
premises. They tried to obtain guns and a police radio to aid them in their
pursuit. The respondents surveyed two premises to determine their suitability,
but no decision was reached as to which would be robbed, or when the crime would
be committed. Wright J, who delivered the leading judgment for the Court of
Criminal Appeal, stated that to prove the crime of conspiracy it is necessary to
show that the parties had 'a conscious understanding of a common design' (R v
Orton (1922) VLR 469 at 473). Wright J held that the crime of conspiracy was not
committed as the agreement was incomplete: |
"[T]he deficiencies in the alleged agreement of the conspirators were, in my
opinion, plainly fundamental to the offence alleged. Whilst the two respondents
had discussed a "short list" of potential victims, there was no agreement as to
which, if any would be the actual target of their anticipated criminal
activity." (at 158)
40. | Despite its cogency, it must be conceded
that the 'absolute' impossibility approach is inconsistent with recent
legislative trends. The House of Lords in R v Shivpuri [1987] 1 AC 1 held that s
1 of the Criminal Attempts Act 1981 (UK) adopts the "subjective" approach. In
Victoria the Crimes (Amendment) Act 1985 (Vic) reflects the provisions of the
Criminal Attempts Act 1981 (UK). The Model Criminal Code Officers Committee
(MCCOC) in its final report titled General Principles of Criminal Responsibility
has followed the Victorian approach. Section 11.5(3) of the Criminal Code Act
1995 (Cth) which adopted the recommendations of MCCOC states
that: |
"A person may be found guilty of conspiracy to commit an offence even
if:committing the offence is impossible; ..."
41. | It is submitted that the MCCOC rejection
of the defence of impossibility is inconsistent with the committee's general
approach. In its final report (titled General Principles of Criminal
Responsibility at 96-103) the MCCOC stated that it had seriously debated whether
the crime of conspiracy should be retained. The majority of MCCOC's
recommendations are designed to restrict the application of the crime of
conspiracy. It is therefore unusual that in the area of impossibility, the MCCOC
has decided to extend liability for the crime of conspiracy. |
9. Conclusion
42. | It is possible to find absurdities in
the application of the law of impossibility which ever approach is adopted. What
is important is that the line is drawn to exclude cases where it would be
'unfair' to prosecute while at the same time covering those cases that should be
inculpated (see G. Williams, 'The Lords and Impossible Attempts or Quis
Custodiet Ipsos Custodes?' (1986) 45 Cambridge LJ 33). The majority in R v
Barbouttis (1995) 37 NSWLR 256 adopted an objective approach to the offence of
conspiracy to receive stolen property. It is not possible, however, to identify
the scope of the approach adopted by the court, or to extrapolate its
application to different situations, because Smart J and Dunford J embraced
substantially different tests. |
43. | It has been argued that the preferred
approach is one of absolute impossibility, as explained in R v Bennett (1978) 68
Cr App R 168, provided that consideration is given to the precise terms of the
agreement. It is conceded that the approach of absolute impossibility is not
consistent with modern Australian cases on the law of attempts and with recent
legislative trends. It is also conceded that in Barbouttis, Dunford J rejected
the defence of impossibility, and Gleeson CJ rejected any distinction based on
breadth of the terms of an agreement. However, the benefits of an approach of
absolute impossibility are compelling: it is consistent with the general
principles of conspiracy; it avoids difficult to maintain distinctions that have
characterised the traditional subjective and objective approaches; it does not
unduly infringe upon the undercover operations of the police; and, most
importantly, it avoids conviction in situations where ordinary people succumb to
the temptation and agree to do an 'illegal' act in circumstances where their
agreement is innocuous |
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