ATTEMPTS AND CONSPIRACIES

  • :    Introduction

Criminal law is not only restricted to actual harms, i.e. the complete commission of crimes, but also it extends to encompass potential harms, those harms or crimes that are at a certain stage likely to be committed but for the existing circumstances either within or out side the knowledge of an accused person become impossible in fact to be accomplished or committed. The criminal law, however, in this instances draws a line within which such crimes are defined and may be punished. These crimes includes attempts, conspiracies and solicitations etc ,1

         Attempts

Attempt is one form of preliminary crimes, other forms being as indicated in the introductory part, such as conspiracy and solicitation. This is so because in all crimes to the exclusion of those crimes brought about by omission to perform a legal duty, some active conduct on the part of the accused person must precede his attainment of the desired goal,

i.e. the actus reus. Attempt is therefore classified as essentially preliminary crime, for it is effected as a means to achieve a desired objective. It is like conspiracy and solicitation technically known as inchoate crime”2 Attempt in its nature is a preparatory crime to the main purpose, as theft, murder, robbery, burglary etc. However for the crime attempt to be punishable its actus reus must be fully complete. This means the accused person must have in this respect done an act which is more than a mere preparation to the commission of the desired offence in question. With this, therefore the real problem in this crime as in other crimes of similar nature rests on actus reus rather than in mens rea.

1 Solicitation – not commonly used in our jurisdictions, but in other countries like U.S.A consists in urging another person to commit a crime, and it requires no substantial steps toward competing a crime or an agreement to commit one. It is punishable even if a solicitee turns down the offer.

2 Inchoate: cannotes something which is not complete. For purpose of this subject “ inchoate offences” must not be taken in that definitions, for the said offences up to the stage of being punishable must be complete in themselves even though they be links in chains of events, for their actus reus are fully complete.

It is a common phenomenon in most of the commission of crimes to observe that a crime is preceded by a series of steps performed by an accused person before he attains the actus commission of the crime he intends to commit. These series of steps are in fact related to one another as to form a chain of events leading to the desired objective. This chain of events presents important features for understanding the nature of the problem of inchoate crimes. And these will be represented as follows:

stage I                          Stage II           Stage III                      Stage IV

Mental                         Preparation                  Attempt                       Commission Contemplation                                                        actus reus

4.         Chain of events flow chart

Generally there are three stages which are distinguishable before crimes are committed. The first stage is that which a potential criminal contemplates on the intended offence. At this stage the accused person is just planning as how to go about the intended offence and in so far this plan just remains in his intention only, that is confined in his own mind, there is no way he can be panelized. The second stage involves a preparation in a way to make his plan effective. The third stage is putting his intention in to action with a view of committing the offence in question. And the last stage is when he actually commits the offence. Stages, third and forth, may be very close to each other in such a way that it may not be easy at

times, to distinguish them clearly. All the same a person is normally punished at the third and fourth stage, but for conspiracy this is not the case.3

It is therefore the third stage which is of the utmost concern. For this reason offences at this stage are called “inchoate crimes” for the reason that they are incomplete. Suppose ink the following hypothetical case; „X‟ „Y‟ and „Z‟ happened to frequent a certain local Pombe Shop. And prior to that „X‟ and „Y‟ had a quarrel over a woman whom each claimed to be his lover. To end this state of affairs X decided to eliminate Y by killing him. X intending to kill Y prepares a kind of poison (Sumu ya Mamba) and waits for the day to materialize when all will be at the Pombe shop sipping liquor. On the material day XYZ having bought liquor, they sat together enjoying the day, while sharing the bowel. When X‟s turn was over and before he would share out the bowel to Y, he secretly dropped into a bowel a tip of his finger containing the deadly poison, a fact which was immediately noticed to “Z” who sat between the two. When “Y” accepted the bowel and was about to drink, Z forcibly intercepted by punching the bowel off the mouth of Y, thus rescuing him from drinking the already poisoned liquor.

From this hypothetical case the following features are obviously; X‟s mental contemplation consists when he planned to kill „Y‟. His plan was illustrated by the time he began to prepare that kind of poison. That was the preparation stage. The third stage was when X put the poison in to the liquor ready to be given to Y before interception. This is the stage when X‟s intention was put into overt act with a view of committing the murder. This is the stage which is punishable by law. This is so as it leaves no doubt as to the explanation that had it not been Z‟s interception „Y‟ would have been killed. „X‟ in this case is guilty of attempted murder.

Some case laws which have been decided on this line of argument are; the case of White

V.R.4. In this case the accused person put potassium cynide into a drink called „nectar‟ with intent to murder his mother. She was found dead shortly after wards with the glass, three

3 Conspiracy is the earliest punishable offence just on the strength of agreement of the parties.

4 What V.R (1910) 2 K.B 124

parts filled, beside her. The medical evidence showed that she had died, not of poison but of heart failure. The accused was acquitted of murder but convicted of an attempt to murder. Although the consequence which the accused intended occurred, he did not cause it to occur and there was no actus reus of murder .

The importance of this case is demonstrated by the fact that though an act may be an innocent one but is unjustified by the accused‟s mental element of intention through the overt acts exercised towards the commission of the intended crime.

                        What is an Attempt?

The legal definition of an attempt to commit a crime is given under section 380 of the Penal Code. That section defines.

When a person intending to commit an offence begins to put his intention into execution by means adapted to its fulfillment and manifested his intention by some overt act, but does not fulfill his intention to such extent as to commit the offence, he is deemed to commit the offence. It is immaterial except so far as regards punishment whether the offender does all that is necessary on his part for completing the commission of the offence or whether the complete fulfillment of intention is prevented by circumstances independent of his will, or whether he desists of his own motion form the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

It follows from this definition, that an attempt to commit an offence is an intention to commit that offence and to put that intention into execution by means of overt act as to its fulfillment.

                        The Actus reus in Attempt

In attempt the actus reus consists of an act done in actual furtherance of the crime intended. It must be of such a nature as to raise a presumption that the accused person was aiming at the crime in question. Or it consists of a series of acts intentionally done by an accused

person in furtherance of a specific aim, and which in point of time are sufficient in themselves to suggest beyond reasonable doubt what that specific aim was. For the actus reus of attempt to be complete, the accused person must manifest his intention by “some overt act” although it is not necessary that he does everything to the completion of the offence. The overt act is required as a demonstration of his intention towards the commission of the crime in question, as it is more often than not an accused person denies mens rea. The establishment of overt act is required so as to constitute the attempt and there is no attempt in law until the requisite overt act has been committed.

The application of overt acts in the furtherance of the commission of the offence in question by an accused person was more emphasized in the case of; Mwanahamisi Abdullah & Hamis V.R5 where the court was of the view that “a mere acceptance of a proposal for love making against the order of nature without any further act directed at the fulfillment of the offence is not sufficient to constitute an attempt”.

In an English case; in R.V. Miskell 6, the court said:-

The more intention to commit a misdemeanor is not criminal, some act is required, and we do not think that all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempt to commit but acts immediately connected with it are.

This quotation qualifies further the nature of the „overt act‟ required to constitute the actus reus of attempt. Out of these statement three rules governing the act of attempt may be formulated.

  • It must be sufficiently proximate to the crime attempted
    • It must aim towards a crime, not towards non criminal conduct.,
    • It need not be an act capable of bringing about the crime intended, in other words the crime intended need not be possible.

5 Mwanahamisi Abdullah & Hamisi V.R.(1983) TLR 265

6 R.V. Miskell (1954) W.L.R. 438 p.440

An attempt has been made to advance some of the major theories of criminal attempts7. This was purposely done in view of the management of attempt offences. There are two major theories concerned:-

                        The Equivocality theory

According to this theory an act is proximate to the crime in question if and only if it indicates beyond reasonable doubt what is the towards end which it is directed. In this theory A is guilty of an attempt to commit Y when in pursuance of his intention to commit Y he has done an act which is such that it can equivocally be inferred from a consideration of that act that it was done with the intention of committing Y. The theory relies on the overt act as evidence of criminal intent and the inference can be drawn from the set but the inference that it was done with that intention. The difficulty of this theory is that no act is unequivocally referable to anything when regarded in isolation.

An application of this theory was evidently in the case of Kombo AbdalahamanV.R 8 when the court held that “in order to constitute an attempt the acts of the accused must be such that if not interrupted them would end in the commission of a particular offence. A good test in the crime of attempt is that the last act which is interrupted is an act in furtherance of the commission of the offence and that after stopping there must be only one inference and that is the commission of the intended crime and not otherwise”.

                        The Proximity theory

According to this theory the act of attempt must be sufficiently proximate to the crime intended. The general principle in this rule is that acts remotely leading towards the commission of an offence are not to be considered as attempts to commit it , but those act immediately connected with it are. In each case the nature of the act immediately connected with the commission of the offence will be a matter of fact.

7 Mapunda B.T.Criminal Law and Procedure Part one General Principles of Criminal Liability,1st Ed, The Open University of Tanzania, 1996 p.75

In Mwandikwa Mutisya V.R9 in this case the appellant was convicted by the Resident Magistrate, Nairobi of attempted theft of articles which were in a locked car. The facts found by the trial court were that the appellant tried to unlock the door of the car and that his purpose was after an entry had been forced, to steal articles in the car. The appellant was intercepted before he was able to force open the door of the car. The substantial point taken on appeal was whether the attempt to open the car was, in the circumstances, immediately connected with his attempt to steal, since as the offence occurred at night, the appellant might not have known exactly what was in the car or if he did, he might not have intended to steal all the articles in the car.

It was held that, it was an act which was immediately and not remotely connected with the intended theft and it was an act which went far beyond mere preparation .

In an English case of R.V. Cook,10 the accused was found in another person‟s car and there were evidence that he was fiddling with the ignition lock on the board. The court held that there was sufficient evidence on which the accused could be convicted of attempting to take and drive away a vehicle without the owner‟s consent.

In Comer V. Bloomfield,11 the defendant seriously damaged his van due to his own fault. He knew his insurance policy did not cover damage caused by his own fault but was uncertain as to what it did cover. He left the van in some woods told the police it had been stolen and told the insurance company the same thing. He then asked his insurance company whether he could claim under his policy for theft. The insurance policy in fact did not cover him for theft. The charge of attempting to obtain money by deception against him was dismissed on the submission of no case on the ground that there was merely an inquiry which was insufficiently proximate to obtaining of money by deception to constitute an attempt.

8 Kombo Abdalaham V.R.(1968) HCD 306

9 Mwandikwa Mutisya V.R.(1959) EA 18

10 R.V. Cook (1963) 48 Cr. App.R.98

11 Comer V.Bloomfield (1971) RTR 49 D.C

A similar view was expressed in the case of R.V. Robinson, 12 where the court quashed the conviction on a charge of attempting to obtain money by false pretences on the ground that his acts of preparation had not reached the point which the law requires.

What is gathered from these cases is a rule that:-

  • The requirement of proximity refers to the sequence of events leading to the crime that the accused had in mind to commit
  • The act of the accused is necessarily proximate if, though it is not the last act that he intended to do, it is the last act that would have been legally necessary for him to do if the result desired by him had been after wards brought about without further conduct on his part.
  • An act is proximate if it is the first of a series of similar acts intended to result cumulatively in the crime

                        Judicial Interpretation of Attempt Cases in East Africa

Judicial interpretation of attempt cases in East Africa is presented in two ways; the narrow view which is commonly adopted by English law and the wide view which was a result of judicial decision taken care of in the case of Andrew Avarity V.R.13 originating in Tanzania. Both approaches are applicable in interpreting of attempted cases in East Africa. The practical application of the two approaches may be examined in the following cases. In the case of Mulira V.R 14 the facts were to the effect that, the appellant was convicted of attempted rape of his employer‟s wife. The woman‟s evidence accepted by the court, was that the appellant entered her bed room where she was lying on the bed, switched off the light, put his hand over her mouth and with the other hand removed his shorts and lifted his petticoat, that she screamed for help, and that when a boy shone a torch into the room the appellant ran away. The court of Appeal of East Africa on appeal, held that the fact indicated that assault with intent to ravish, the facts were not sufficiently proximate to found a conviction for attempted rape. According to the court to constitute an attempt to rape there must be an intention to have intercourse with a woman not withstanding resistance on

12 R.V Robinson (1915) 2 K.B.342; 11 Cr.App. R.124

13 Andrew Avarity V.R.(1973) LRT.92

14 Mulira V.R 20 EACA 223

her part, plus an attempt to put his intention in to effect and that mere preparation does not suffice.

Other cases subscribing to this view include;

  • R.V. Haruna Ibrahim15
  • Omar V.R16
  • Gamaiyo Melau V.R17

The general view given to these cases is to the effect that only proximate acts are punishable. These cases adopt, in that respect a narrow approach.

The wide view in this connections represented by the case of Andrew Avarity18. The facts of this case was that on 13.6.72 the complainant one Gaudensia s/o Mwangesera, was walking to her home from a shopping expedition. This was at night around 10:00 PM. The path she took passes through mango trees and as she was walking the accused came upon her from behind he got hold of her and stated stripping her clothes. The complainant shouted for help. People appeared on the scene therefore the accused ran away. But he was the court of arrested two days later and charged with attempted rape. In deciding this case the judge distinguished other authorities by arguing that those cases imported concepts of “preparation” and “proximity” which were non extent in section 380 of the Penal Code which defines attempt. According to judge Mfalila section 380 laid down three ingredients for the offence of attempt – viz

  • the intention by the accused to commit an offence
    • the manifestation of intention by embarking upon it by means adopted to its fulfillment by way of an overt act and
      • proof of the overt act

In other words, to constitute attempted rape there must be evidence of an attempted to have sexual connections with a woman notwithstanding her resistance and execution of this

15 Haruna Ibrahim V.R.(1967) HCDE no.76

16 Omary V.R.(1971) HCD no.362

intention by overt acts clearly adapted to its fulfillment. More over where the existence of overt act is established, it is not required to classify further the overt act into preparation and non preparatory proximity and remote concepts. The conviction of the accused was upheld.

                        Mens rea of Attempt

In order to convict a person for an attempt it must be proved that the accused intended to commit the particular crime or rather intended to procure the consequence that in law amounts to crime. However, in the case of murder there must be evidence that the accused intended to kill. The requisite mens rea in attempt may be proved:

  • circumstantially by evidence of what the accused did on the occasion in question
    • by evidence of similar facts where that is admissible or
    • by confession on the part of the accused, or other direct statement of intention.

The criminality of attempt in those circumstances lies in the intention, that is mental element of intention to commit an offence in question, or the mens rea which in all cases must be evidenced by what the accused has actually done towards the achievement of his desired objective. The required mens rea, however, in attempt cases may be better understood in actual cases, for example in the following cases:-

In the case of R.V. Ngambilo,19 the accused came to the victim‟s house and thereby pointed his gun towards the victim‟s knee and said “today you shall die”. He then fired the gun on the said knee. He was charged as a consequence, of attempted murder. The court held that in order to convict a person for attempted murder the actual intention to kill must be proved. You may notice in this case that the fact that the accused pointed his gun at the knee is showing more of intention to injure or harm rather than causing death. The court convicted him of unlawful wounding.

18 Supra

19 R.V. Ngambilo (1967) HCD no.388

However in R.V. Mlatende,20 the accused who was divorced from his wife 1964 after living with her for 8 years, moved to a nearby house where he lived as a tenant. On the night in question the accused after securing the front and back doors of his former wife‟s house, set fire to it. The wife awoke and after vainly trying the doors broke out through the wall of the hut. She later rescued a child who was in the hut and another person in the hut also escaped. The accused was charged with arson c/s 319(a) and attempted murder c/s 24 of the Penal Code. The court held that the positive steps taken to prevent escape by the inmates of that house established beyond reasonable doubt that accused intended the inmates of the house to burn to death. The accused was convicted on both offences.

In R.V.Robinson 21, the facts were to the effect that, Robinson, a jeweler, had insured his stock against burglary and theft. He subsequently hid some jewellery under his safe and, after binding himself up with cords, called for assistance. A Police Officer entered the shop and Robinson stated that he had locked all his jewellery in the safe and was going upstairs when he was attacked from behind by a stranger who had tied him up and rifled the safe, which was then seen by the officer to be open and empty. The officer was suspicious of the story, took Robinson to the Police Station to make a statement, and in his absence the shop was searched and the jewellery discovered under the safe. When Robinson was told this he confessed that his story was a lie and that his intention had been to obtain from the underwriters the amount for which the jewellery had been insured. He was charged with attempting to obtain money by false pretences and convicted, but his conviction was quashed by the court of criminal Appeal on the ground that his acts of preparation had not reached the point which the law requires. (see also the case of R.V. Mlay 22)

Attempt as said earlier, is a question of men rea than actus reus. In the offence of attempt the mental element assumes paramount importance than actus reus.

The actus reus may be perfectly innocent and harmless act, as where B, intending to murder D, puts sugar in his tea; believing that it is not sugar but deadly poison. The actus reus may

20 Mlatende V.R.(1971) HCD no.471

21 Supra

be an act provided it is done with intent to commit the offence and goes beyond mere preparation when an act is done. The law judges, not only of the act done, but of the intent with which it is done, and if it is coupled with an unlawful and malicious intent though the act itself would otherwise have been innocent the intent being criminal the act becomes criminal and therefore punishable. In the offence of attempt the prosecution has to show:-

  • the actus reus that the accused had done something which in point of law marked the commission of the offence.
  • the mens rea, that in taking this step he was inspired by the intention to go on to reach a definite objective which would constitute a specific crime if not interrupted

                        Impossible Attempts

The fact that it is impossible to commit a certain crime does not mean that no one can be convicted of attempting to commit it . section 380 of the Penal Code provides, in part, as follows

“It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence”

However, there has been controversy about the circumstances in which impossibility will afford a defence and those in which it will not. The following examples may assist to shed some light to this issue;

  • Suppose that D who comes from a country where adultery is a crime and thinks that adultery is a crime in Tanzania. He may attempt to commit adultery with someone‟s wife. The “offence” he has in mind is non existent in Tanzania, its commission is impossible and he has, in fact and law, committed no in choate offence.
    • A intends to shoot B; He goes to B‟s house at night and shoots at B‟s coat hung in B‟s bedroom thinking that it is B. Here A has committed a crime as shooting B is a crime.

22 R.V. Mlay (1960) HCD no.348

Out of these examples, two rules develop in respect of attempts which are distinguishable;

  • Attempting a non – existent crime
  • Attempting a factually impossible crime.

Attempting a non existent crime needs no demonstration. A person who commits or attempts to commit what is not crime in law cannot be convicted of attempting to commit a crime, and it makes no difference that he thinks it is a crime.

Attempting a factually impossible crime. An act will amount to an attempt although the commission of the meditated crime is impossible by the means chosen. In such cases some circumstances, which is an element of the intended crime, does not exist. To find someone guilty of this type of attempt there must be evidence to show that the culprit intended to commit the offence contemplated. Once that is established the only question is whether, with that intent, he has done an act which is more than merely preparatory to the commission of the offence i.e. evidence of some overt act towards the commission of the offence.

                        Conspiracy

It is unfortunate that the Tanzania Penal Code law, which is Cap.16 of the law, does not defined what conspiracy is, though it creates it as an offence under section 384. However, in some quarters conspiracy is defined as an agreement resting in two or more persons to do an unlawful

l act or to do a lawful act by unlawful means. It is therefore an agreement consisting of two or more persons to effect any unlawful purpose, whether as their ultimate aim or only as a mens to it. This definition, brings forth the following features in respect of conspiracy as; the actus reus, persons agreeing, the purpose agreed upon and the mens rea.23

                        Actus reus of Conspiracy

There is no way that can be said of conspiracy as consisting in mental criminality only resulting form the mere concurrence of the intentions of the parties. For just as every where in criminal law sphere, bare intention amounts no crime. An „act,‟ in this connection,

therefore, needs to be done, reflecting what was the intentions of the parties. The „act‟ for that reason is an „Agreement‟ which as Lord Chelms Ford clearly put it in Mulcahy V. The Queen,24 is an act in advancement of the intention which each person has conceived in his mind.” It is not mere intention, but the announcement and acceptance of intentions. Bodly movement, by word or gesture, is consequently indispensable to effect it. In order of time, this proceeds the act agreed upon. It follows therefore that once the parties have come to such an agreement, that agreement itself is sufficient to constitute the offence of conspiracy. It is not, in these circumstances, necessary to establish that the parties went on to commit some overt act towards carrying it out, and in the same way a person may be convicted of a conspiracy as soon as it has been formed, and before any overt act to carry out the agreed purpose has been committed. The implication of this is that the offence is complete once the parties have agreed as to their unlawful purpose though they would not have concluded as to the means and devices to be employed for affecting it. For example if “B” and “C” agree to commit suicide together, but later on they withdraw their plan, they nevertheless are liable to a charge for conspiracy. This illustrates of the fact that conspiracy as stated earlier is complete even if no further act is done in pursuance of the agreement. In addition some reservations express or implied, do not negative the fact of conspiracy although this will depend upon the nature and extent of the reservation made. The actus reus then is the agreement involving spoken or written words or other overt acts. In Walker V.R.25 In this case a conviction was quashed although it was perfectly clear that D had discussed with others the proposition of stealing a payroll, because it was not proved that they had got beyond the stage of negotiation when D withdrew. And in MulchV.26 The queen it was stated that; “when two agree to carry it into effect the very plot is an act in it self….”

If, however, the actual commission of the crime agreed upon has taken place, the original offence of conspiracy will not become „merged‟ in the substantive offence. It will be possible to bring a charge for conspiracy to commit such substantive offence, and then

23 Kenny’s (ibid) p.339

24 Mulcahy V. The Queen (1868) LR.3 H.L. at p.328

25 Walker V.R.(1962) Crim.L.R. 458

26 Supra

support it by evidence that tends to show an actual consummation of the offence; but judges discourage such a course as unfair to the accused.

Conversely a charge for conspiracy to steal and in another court for the completed crime of stealing, then if an accused person is found not guilty of stealing, that is not guilty of doing the things which he was charged with conspiring to do, but on the same evidence, guilty of conspiracy he must be acquitted on the ground that the verdict of guilty of conspiracy as a specific offence under the first count was unreasonable.

                        Two or Morepersons

The nature of the offence implies that, a man by himself cannot conspire.27 The position under English law (whether it remains the same up to date) is that, for certain purposes husband and wife can be counted as one person, so that an unlawful combination by him and her alone does not amount to a conspiracy28. However such a rule does not find a room in Tanzania law. For the position is made clear under section 386 A in respect of the couples for the offence. That section stipulates that;

For the avoidance of doubt, it is hereby declared that a husband and wife may be guilty of conspiring together whether their marriage is a monogamous marriage or a polygamous marriage.

The application of this provision, however is not mandatory, for it seems the offence in question by the couples will be subject to the circumstances it is committed and most probably only to the exclusion of offences such as murder and treason29, otherwise the application of compulsion as a defence on the part of a wife by her husband may be brought in to play, (see section 20 of the Penal Code)30.

                        An unlawful purpose

Though the term unlawful purpose is not so statutorily defined, but as in this connection of the offence of conspiracy, the unlawful purpose may amount an agreement to commit a

27 kenny’s ibid,p.340

28 ibid

29 the observation and emphasize is casual research based on the general rules as to criminal responsibility.

30 Cap.16 of the laws

substantive offence such as a conspiracy to steal, to commit robbery, house breaking, murder etc. all these are unlawful enterprises, and there fore an intention by the parties to embark into such enterprises is unlawful purpose.

                        Mens rea of Conspiracy

It must not only be proved that there is an agreement between the conspirators to carry out an unlawful purpose but also an intention in the mind of an individual conspirator to carry out that unlawful purpose. In R.V. WhitChurch,31 Whit Church believing herself to be pregnant agreed with others that they should use instruments and administer things to her with a view of procuring her miscarriage. The instruments were used and things were administered but there was no evidence that whit Church was pregnant a fact which would if proved have meant that she could be convicted of a crime. Whitchurch was convicted of conspiracy.

                        Proof of Conspiracy

It rarely happens that the actual fact of the conspiring can be proved by direct evidence, since such agreements are usually entered into both swifty and secretly. They can therefore ordinarily be proved only by an inference from the subsequent conduct of the parties, in committing, some overt acts which tend so obviously towards the alleged unlawful result as to suggest that they must have arisen form an agreement to bring it about. It is not necessary, however to prove that the persons accused of conspiring together were in direct communication with one another, for they may have operated through third party. In this context X may have been in touch with each D1, D2, D3 though they are not in touch with one another (“a wheel conspiracy”). Provided that the result is that they have a common design, for example to rob a particular bank – D1, D2 and D3 may properly be charged for conspiring together though they have never been in touch with one another until they meet in the dock. It must be proved that each accused has conspired with another guilty person in relation to that single conspiracy.

“what has to be ascertained is always the same matter; is it true to say…. That the acts of the accused were done in pursuance of a criminal purpose held in common between them?”

These propositions, for which there is ample authority, are stated in the case of Mey rick32 though that case itself seems a questionable application of them. D1 and D2, night club proprietors, each offered bribes to a Police Sergeant, E, to induce him to connive at breaches of the licensing laws and “to effect a public mischief by obstructing the Police…….in the execution of their public duty and by corrupting officers of that force.”

The jury were directed that there must be a “common design” and, by their verdict of guilty, they so found but it is difficult to see how the evidence justified this finding. The design of each night club proprietor was simply to evade the licensing laws in respect of own premises. Meyrick was distinguished in Griffiths33 on the rather unconvincing ground that;

“the conspiracy alleged (in Meyrick) was……..in relation to a comparatively small geographical area, namely soho. In view of the size and nature of the locality, there were clearly facts upon which a jury could come to the conclusion that the night club proprietors in that district well knew what was happening generally in relation to the police.”

Even if D1 and D2 each knew that the other had made a similar agreement with E, it would seem that there were two conspiracies not one. It should be noted that the event in this case did not arise out of the same sources simultaneously though similar in nature for each part acted on his own in respects of his own premises.

Though the conspirators may not be in touch with each other or one another, it is sufficient if it is proved that each conspirator knows that there is an existence of a scheme that goes beyond the illegal acts that he agrees to do and attaches himself to the scheme.

31 R.V.Whitchurch (1800) 24 Q.B.D.420

32 Meyrick (1929)21 Cr. App.Rep.94 at p.102

33 Griffiths (1965) 49 Cr.App. Rep.279

In R.V. Karia.34 The court of appeal for East Africa stated that an agreement to conspire may be deduced from any acts, which raise the presumption of a common plan.

As already noted earlier conspiracy can rarely be proved by direct evidence in most cases proof of conspiracy is by circumstantial evidence. It depends then on inferences to be drawn from the conduct of the parties. In the case of Ongodia and Erima V. Uganda.35 The facts of the case were that on February 24th 1966 the two appellants arrived at officer‟s mess at Entebbe at about 2 PM. The first appellant Ongodia in the presence of the second appellant Erima informed Anguram and Guweddeko in the mass that war had broken out, that the army head quarters at Mbuya had been surrounded and they had managed to escape. Ongodia asked Anguram if he had confidence in his platoon and on receiving an affirmative reply, Ongodia asked Anguram to take his platoon to Bait ababiri on the Kampala / Entebe road and set up a road block with the object of arresting the Prime Minister – Dr. Obote. Ongodia added that other troops were advancing from Kampala and they could be arriving at any moment. Erima remained silent – throughout the conversation but nodded his head from time to time. It was not established at what precise moment of time of the conversation he nodded his head. The Judge, Advocate in his direction stated that if the evidence of Anguram and Guweddeko was believed the trial court could be justified in finding each appellant guilty to both charges (conspiring to set a road block with a view of arresting the Prime Minister) and occasioning false alarm to the officer of the army)

The court of Appeal held in the first charge that the evidence was sufficient to justify the inference that the first appellant Ongodia conspired with a person or persons unknown to arrange for a road block to arrest the Prime minister and the finding on the first charge was confirmed. It was also found that the evidence was insufficient to establish that the second appellant was acting in concert with the first appellant and a finding of not guilty was substituted.

On the second charge both appellants were found not guilty for lack of sufficient evidence.

34 R.V.Karia 16 E.A.C.A.116

35 Ongodia and Erima V. Uganda (1967) E.A.137

Other references:

  • Musinga V.R.18 E.A.C.A 211
  • R.V.Mattaka and others