Conspiracy and the scope of the agreement: DPP(Cth) v Kola [2024] HCA 14

Identifying the scope of an agreement is essential when considering the law of conspiracy. This is illustrated in DPP(Cth) v Kola [2024] HCA 14. The statutory context is important, particularly if it provides that where an offence has an element of absolute liability the conspiracy to commit that offence retains absolute liability as to that circumstance. [1]

In Kola the charge was conspiracy to import a commercial quantity of cocaine. For the full offence, importation of a commercial quantity of cocaine, absolute liability applied to the amount of the drug. That is, it was not necessary to prove that the defendant knew of the amount of drug that was imported. One of the issues in this appeal was whether liability for the corresponding conspiracy required an intention to import that quantity of the drug.

Consistently with R v LK, [2] the Court held that under the relevant legislation proof of the agreement to commit the offence did not include proof that the parties to the agreement intended to import a commercial quantity of cocaine. [25]

The illustration given at [29] is helpful in that it shows the importance of identifying the scope of what was agreed. The facts might be such that by using the agreed method of importation it would not be possible to import a commercial quantity of the drug. Further, if the agreed method of importation was departed from by other co-conspirators so that a commercial quantity of the drug could be imported, the defendant would not then be a party to the new agreement to import a commercial quantity of the drug. But if the defendant had agreed to a method of importation that allowed for a commercial quantity of cocaine to be imported, the defendant would be liable for the conspiracy to import a commercial quantity of the drug because of the absolute liability provision.

And this is where the second aspect of this appeal comes into play. The charge was conspiracy because, as is usually the case with conspiracy charges, the full offence was not committed. [3] It was still necessary to prove the scope of the agreement. Here, from the proven facts, it was obvious that there was reasonable proof that a commercial quantity of the drug was intended to be imported [45], and consequently that evidence of the acts of co-conspirators was admissible to prove that the intended course of conduct would, had it been carried out, have resulted in the importation of a commercial quantity of the drug. Again, whether the defendant knew or intended this was irrelevant because of the absolute liability provision, but it was relevant that he knew how the importation was to occur.

A puzzling point occurs in Kola at [25]:

“… to establish the offence of conspiring to import a commercial quantity of a border controlled drug, the prosecution must prove, inter alia: that the accused participated in or was a party to an agreement to import a commercial quantity of a border controlled drug; that the accused intended to participate in or be a party to such an agreement; and that the accused and another person intended that a border controlled drug would be imported pursuant to the agreement, that is, they knew or believed that a border controlled drug would be imported pursuant to the agreement.” [emphasis added]

As a result of the agreement having to be to import a commercial quantity of the drug (this was the way the Court stated the first element), the Court identifies “an obvious tension” [27]. The resolution given in that paragraph is somewhat obscure, particularly as the Court approved the trial judge’s direction which had omitted reference to commercial quantity when describing the first element [39]-[40]. The real issue was whether the scope of the agreement was such that, if executed, a commercial quantity of the drug would have been imported [41]. This would be a correct way of putting the first element.

Here, there was no suggestion that the co-conspirators had gone beyond what Mr Kola had agreed to [46], and the circumstances indicating the scope of his agreement are mentioned at [13].

In considering the law of conspiracy and the relevance of this decision in other jurisdictions, differences in legislation must be assessed, as must the particular circumstances bearing on the scope of the alleged agreement.

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[1] Here the Court was considering s 11.5 and 307.1 of the Criminal Code (Cth). For s 11.5, see [20], and for a description of s 307.1 see [24].

[2] R v LK [2010] HCA 17. See my note dated 26 May 2010. LK is remarkable for its use of the word epexegetical at [133]. Don’t play Scrabble against those guys. LK holds that if an offence can be committed recklessly, a conspiracy to commit that offence requires intention or knowledge [141]. The relevant element there was the fact that money was the proceeds of crime. Another element, not relevant to that decision, was that the amount of the money was $1m or more and this was an element to which absolute liability applied: Kola at [23].

[3] Often, defendants are charged as conspirators even though the full offence has been committed, for example where supplies of a drug have occurred.