Recap: Soosay (PD)

37 It is inherent in exception 2 that there must be a distinction drawn between a situation where a right of private defence has arisen but that right has been exceeded and a situation where the right has not arisen at all. In the absence of any clear authority it is our view that s 100 determines whether the right of private defence exists or not. On the facts of this case we have already determined that to us it was inconceivable that Soosay could have reasonably apprehended that death or grievous hurt will otherwise be the consequence of Lim charging at him dispossessed as he was 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. Question is s. 100 the governing provision with respect to whether the right to PD arises? Consider other PD provisions

Recap: Soosay (PD)

100.The right of private defence of the body extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right is of any of the following descriptions: (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (b) such an assault as may reasonably cause the apprehension that grievous hurt 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 penile penetration 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 will be unable to have recourse to the public authorities for his release.

Recap: Soosay (PD)

102.The right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or a threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. 105.(1) The right of private defense of property commences when a reasonable apprehension of danger to the property commences. Given s. 102 and s. 105 (1) Shouldnt s. 100 relate to the extent of your exercise of PD?
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Criminal conspiracy
S. 120B

Recap: abetment by instigation

AR: Communication (this is objectively determined if from the 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 influence target (UK case law)

Focus is on the A If A did contribute then abetment by aiding

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Conspiracy

Definition of criminal conspiracy 120A.(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 an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

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.

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.

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

Agreement

Like abetment by conspiracy, must have agreement with 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 others join it later. But they are all parties to the same general conspiracy

There is no need to agree face to face There is no need to know of or have met all coconspirators
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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 the definition. 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 making agreement had the intent)
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Conspiracy: MR

Lau Song Seng

Suggests that A must additionally intend to contribute to implementation of agreement Otherwise mere knowledge or consent to a criminal scheme involving other individuals would attract liability for a criminal conspiracy

But why should A intend to be involved in agreement implementation? Essence of conspiracy is the agreement (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 (note same punishment scheme as abetment) Public policy reasons: encourage withdrawal YMC: argues that should recognized defense of voluntary withdrawal (similar to that recognized in firearms offense law reasonable efforts taken to prevent the commission of the crime)
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Defense of withdrawal

Conspiracy: impossibility

Agreement impossible to be performed

Conflicting case law: depending on how conspiracy is defined as a conspiracy to achieve an end by whatever means or to achieve an end by a specific means

Hiremath (murder by witchcraft conspiracy 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 by which the murder is to be perpetrated are not agreed upon, or the means which are 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, the offense under that section being the conspiracy, and not the acts by which the subject matter of the conspiracy is to be carried into effect Compound used could never produce cocaine under any circumstances. Held: Not guilty of criminal conspiracy

DPP v Nock (conspiracy to produce cocaine by using a specific compound)

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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 illegal act, 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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