46. Conspiracy (Vic & Cth) — ss 321–321F Comprehensive Reference

Scope and currency

Reference sheet · Crimes Act 1958 (Vic) Pt I Div 10, ss 321–321F (+ s 339) · Cth: s 11.5 Criminal Code · verified against AustLII / legislation.vic.gov.au / hcourt.gov.au / JCV Charge Book · Vic consolidation v321 (26 Apr 2026); Cth compilation No 174 (30 Jun 2026) · rebuilt 25 July 2026

Starting point — s 321(1): "Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, the person is guilty of the indictable offence of conspiracy to commit that offence." The opening words Subject to this Act are the textual hook for s 321AA (child co-party) and s 339 (spouses) — do not omit them. A true inchoate offence: complete on the agreement, whether or not anything is done to carry it out, and indictable whether or not the principal offence is (contrast attempt, confined to indictable offences by s 321M). An indictment cannot be filed without DPP approval (s 321(4)). Three matters must be proved: (1) an agreement to commit the principal offence; (2) an intention to form that agreement; and (3) an intention that the principal offence be committed, shared by the accused and at least one other party (s 321(2)).

1 · Where conspiracy sits

Inchoate liability. One of the three inchoate offences — attempt (Div 12), conspiracy (Div 10), incitement (Div 11) — criminalising conduct directed at a crime before completion. The dividing line: attempt = the accused moves towards committing the crime themselves; incitement = urges someone else to commit it; conspiracy = two or more agree to commit it. The law intervenes early because a group planning crime is a distinct and heightened danger, so the agreement is punishable even if nothing further is done. Conspiracy is a stand-alone indictable offence with its own charge and penalty (s 321).

Conspiracy vs complicity — the charge-selection point. Conspiracy punishes the agreement (inchoate) — the crime need never happen. Statutory complicity (ss 323–324; common law acting in concert, JCE and common purpose abolished by s 324C for offences on or after 1 Nov 2014) instead requires the principal offence to have been committed, and makes the person involved liable for it as a principal offender. Note the overlap: entering an "agreement, arrangement or understanding" is itself a form of involvement under s 323(1)©. Where the plan is carried out and both routes are open, the prosecution ordinarily elects to avoid duplication — and s 321E(3) bars double conviction on the same agreement.

Run it in this order. (1) Statutory home — s 321; confirm DPP approval (s 321(4)); consider whether the object offence is instead a DPCSA s 79 drug conspiracy or a Cth s 11.5 conspiracy. (2) Element 1 — the agreement. (3) Element 2 — intention to form it. (4) Element 3 — intention the offence be committed. (5) Scope, particulars and absolute-liability elements (Caldwell; Kola). (6) Single or multiple conspiracies (Gerakiteys; Griffiths). (7) Parties — spouses (s 339), companies, undercover police, persons unknown. (8) Impossibility (s 321(3)), withdrawal, co-conspirator acquittal (s 321B). (9) The co-conspirators' evidentiary rule. (10) Penalty (s 321C) — usually equal to the substantive offence.

2 · Statutory scheme — Division 10 (ss 321–321F)

Provision	What it does
s 321	Creates the offence and the three matters to be proved. s 321(1) the agreement (a course of conduct involving an offence by one or more parties), opening "Subject to this Act". s 321(2) fault — the accused and at least one other party (a) must intend that the offence the subject of the agreement be committed, and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the conduct is to take place. s 321(3) impossibility on facts of which the person is unaware is no bar. s 321(4) indictment must not be filed without DPP approval (or an authorised delegate). Amended by Youth Justice Act 2024 (Vic) s 796.
s 321AA	Agreement with child who may not be criminally responsible. A person may be found guilty under s 321 even if the other party (or all other parties) is a child and, under s 10 or s 11 Youth Justice Act 2024 (Vic), it is presumed that the child cannot commit the offence agreed upon. Inserted by Youth Justice Act 2024 (Vic) s 797 (not s 796) — commenced 30 September 2025.
s 321A	Extraterritorial reach. (1) extends "the commission of an offence" to an offence against a law in force only outside Victoria if, but only if (a) its necessary elements include elements which, if occurring in Victoria, would constitute a Victorian offence; and (b) one or more of the parties is in Victoria when the agreement is made — the limbs are cumulative. (2) where all parties are outside Victoria when the agreement is made, s 321 applies if, but only if the agreed course of conduct, carried out in accordance with their intentions, will necessarily amount to or involve a Victorian offence — a necessity test, not a possibility test.
s 321B	Acquittal of co-conspirators. A conspirator's conviction, whether tried together or separately, "may stand notwithstanding that" other alleged conspirators are, or may be, acquitted — unless in all the circumstances of the case the conviction is inconsistent with the acquittal.
s 321C	Penalties. Generally the same maximum as the substantive offence; default level 4 (15 yrs) where imprisonment is prescribed without a maximum; s 321C(1)(ba) murder or treason → level 1 (life) or such other term as the court fixes, as the court determines. Full table below.
s 321D	Applies s 321(2), s 321(3) and s 321B — and only those — to conspiracy under any other enactment, and to conspiracy to cheat and defraud / conspiracy to defraud. It does not carry across s 321(4) (DPP approval) or s 321C (penalties). So a DPCSA s 79 conspiracy borrows the fault and impossibility rules but keeps its own penalty and needs no DPP approval.
s 321E	Limitations. (1) a consent-to-prosecute requirement for the substantive offence applies equally to the conspiracy. (2) where an indictable offence has been committed in pursuance of the agreement and proceedings for it are time-barred, no conspiracy proceedings may be instituted on the basis of that agreement — note both qualifiers. (3) no conviction in respect of the same agreement of both s 321 conspiracy and a statutory or common law fraud conspiracy — it bars double conviction, not double charging.
s 321F	Abolition of common law conspiracy. (1) abolished; (2) except conspiracy to cheat and defraud and conspiracy to defraud, which survive; (3) abolishes the common law offences of incitement to conspire and attempt to conspire; (4) DPP approval to file a fraud-conspiracy indictment.
s 339	Spouses. (2) a married person is not criminally responsible for conspiracy with his or her spouse alone, nor for incitement of his or her spouse. (1) subject to that, criminally responsible for incitement or conspiracy to commit treason or murder "and for any offence specified in section 4" — but s 4 has been repealed, so treason and murder are the only operating carve-outs. (3) liability as a principal offender in any offence other than conspiracy or incitement is unaffected.

s 321R is NOT in the conspiracy Division — and the proposition usually attached to it is the converse

s 321R sits in Division 12 — Attempts, headed "Application of Division", and "this Division" there means the attempts Division. s 321R(2) provides that Division 12 does not apply to an attempt "(a) to be involved in the commission of an indictable offence; or (b) to commit the offence of conspiracy" — i.e. it bars attempt to conspire, not conspiracy to attempt. s 321F(3) likewise abolishes common law incitement to conspire and attempt to conspire. There is no express statutory bar on conspiracy to attempt anywhere in ss 321–321F: the rule rests on Aydin's construction of s 321. The "attempting to pervert the course of justice" carve-out is not statutory either — that is a substantive common law offence in its own right, not a true "attempt", so it survives s 321S and can be the object of a conspiracy. (The usual authority is R v Rogerson (1992) 174 CLR 268 — verify before citing.)

3 · Conspiracy at a glance

Issue	Rule	Key authority
Home	An agreement to commit an offence is itself indictable — regardless of the principal offence's classification	s 321(1)
Element 1 — agreement	Accused + at least one other agree to a course of conduct involving commission of the principal offence	s 321(1); Gerakiteys [1984] HCA 8
Element 2 — intent to agree	The parties intended to form the agreement at the time it was made	Thomson (1965) 50 Cr App R 1; Peters [1998] HCA 7 at [55]–[59]
Element 3 — intent to offend	Accused + at least one other intended the principal offence be committed — recklessness insufficient	s 321(2)(a); Gerakiteys; for Cth R v LK [2010] HCA 17
Complete when?	On the agreement — no need to carry it out or take any step (Vic/common law only; contrast Cth s 11.5(2)©)	Nirta [1983] FCA 360; Bijkerk [2000] NSWCCA 122
Withdrawal	No defence — the offence is already complete on formation of the agreement; goes to sentence only	Savvas v R (1995) 183 CLR 1; Caldwell [2009] VSCA 41
Impossibility	Factual impossibility no bar (statute); but an imaginary crime is not conspiracy	s 321(3); Sirat (1986) 83 Cr App R 41
Penalty	Usually EQUAL to the substantive offence — not one level down	s 321C
ELEMENT 1 The agreement — s 321(1)
Did the accused and at least one other agree to pursue a course of conduct involving the principal offence? A common agreement — a meeting of minds — is essential; the gist of the offence is the agreement. A shared intention to commit a crime is not conspiracy without an agreement. Not enough: merely shared assumptions or expectations about future events, or an expectation that once conditions are met one of them will offend — they must have agreed to pursue it. Form: need not be written or formal, but must be communicated to the co-conspirators. No need to prove when or where the agreement was formed — its existence, content and scope may be inferred from conduct. → Content — must be THE principal offence: not a different, unspecified or undecided offence. Where the agreement identified only a class of offence, the jury must be satisfied it extended to the specific offence charged (McCaul & Palmer). A conspiracy to traffic a specified drug fails where the agreement itself was directed at a different drug — a s 321(2)(b) fault point (Johnson (Ruling No 7)). A mistake about the substance actually present is different: that is s 321(3) territory and does not defeat the conspiracy. → No need to specify: the agreement need not name the victim or the method (Gill and Henry; Caldwell). But where victims are named in the presentment, the pleading corollary bites — see the SCOPE gate. → Unknown parties: a person may be convicted of conspiring with persons unknown — but must know of their existence and share a common design as to scope. → Participation & secondary parties: a party need not actively participate in carrying out the offence (Rolls; Sleiman) — though mere acquiescence in a plan is not enough; a joint arrangement is required. The agreed course of conduct may involve committing the offence as a secondary party — A and B agree B will hire C (a stranger to the agreement) to kill D (Bui; Hargrave). → Unanimity: where the agreement contemplated multiple criminal acts, the jury must be unanimous that it included an agreement to commit the principal offence (Nirta).

Gerakiteys

Element	Detail
Charges	Dr Gerakiteys charged in New South Wales under s 393 Crimes Act 1900 (NSW) with two counts of conspiracy.
Count 1 — insurance	Conspiring between 1 April 1975 and 3 May 1978 with an insurance agent, Haralambos "Harry" Harrison, and "divers other persons" (particularised as nine specific insured claimants) to cheat and defraud divers insurance companies.
Count 2 — social security	Conspiring between 1 March 1977 and 9 May 1978 with Harrison and "divers other persons" (particularised as several social security claimants) to defraud the Commonwealth.
The scheme	Devised by Gerakiteys and Harrison. Harrison, as insurance agent, recruited individual claimants, assisted them to complete false insurance proposal forms, and coached them on how to simulate illnesses and what to say to other medical practitioners to bolster claims. The claimants attended Dr Gerakiteys' surgery, paid cash, and signed Medibank assignment forms. Without conducting medical examinations or discussing any genuine illness, he issued fraudulent medical certificates certifying temporary or permanent unfitness for work.
The evidentiary defect	The Crown proved a central arrangement between Gerakiteys and Harrison — but there was no evidence that any individual claimant knew of the other claimants' activities or was aware of a wider scheme to defraud multiple insurers or the Commonwealth. Each claimant agreed with Harrison and Gerakiteys solely to defraud their own insurer or secure their own benefits. No common purpose or "meeting of minds" linked the claimants to each other.
Outcome	High Court (by majority) allowed the appeal and quashed the convictions.

The two holdings

Holding	Reasoning	Disposition
1. Failure to prove the conspiracy charged	The conspiracy charged in each count was a single, general conspiracy embracing all eleven alleged conspirators (including the claimants). The evidence established only that Gerakiteys and Harrison had separate, individual agreements with each claimant — i.e. separate sub-conspiracies. The Crown therefore failed to prove the broad, single conspiracy alleged in the indictment.	Convictions quashed.
2. Entitlement to an acquittal — no retrial on the indictment	Gibbs CJ: it conflicts with basic justice and the rule against double jeopardy to order a retrial where the prosecution's evidence at the first trial was simply insufficient to justify a conviction. A new trial must not be ordered merely to give the Crown a second chance to "mend its hand" with new evidence or a completely different case.	Murphy and Deane JJ: the applicant was entitled to a judgment of acquittal as of right on those charges. Left open to the Crown to bring new prosecutions on narrower, amended indictments reflecting only the conspiracies the evidence supported (i.e. limited strictly to Gerakiteys and Harrison).

The principles

Principle	Content	Source
The hub-and-spoke fallacy	A single conspiracy is not established merely because multiple parties deal with a central "hub" (here Gerakiteys and Harrison). Spokes who do not know of each other are not parties to one another's agreements.	Gerakiteys
Unified common purpose required	For a single conspiracy, all parties must be aware of the scope of the agreement and agree to pursue the same common design.	Gerakiteys
Division of agreements	Brennan J: if two conspirators agree to effect several unlawful objects, and a third person agrees with them to effect only some of those objects, there are two conspiracies, not one. The original conspirators are parties to both; the third person is a party only to the narrower conspiracy.	Brennan J
"Dragnet" pleading disapproved	Gibbs CJ and Murphy J criticised using a broad conspiracy charge as a "dragnet" to capture various unrelated co-offenders who are legal strangers to each other's purposes, instead of identifying and prosecuting the precise substantive offences committed.	Gibbs CJ; Murphy J
Pleading and particulars	A jury cannot convict of a conspiracy substantially distinct or different from the one charged — but can convict of a narrower conspiracy provided it is not substantially different from the allegations the accused was prepared to meet. Where the Crown's particulars define a specific general conspiracy and the Crown does not seek to amend, it is bound by that case and cannot shift ground at the close of evidence to secure a conviction on a narrower basis.	Gerakiteys
Mens rea — specific intent	Conspiracy is a crime of specific intent, predominantly mental in composition. There must be a common intention at the time of the agreement to carry out the unlawful object.	Gerakiteys
Recklessness insufficient	It is not sufficient that the accused merely realised the probable consequences of the agreed conduct might result in an unlawful act, or was reckless as to the circumstances making the act unlawful. Approved as obiter by Wilson, Deane and Dawson JJ in Giorgianni v The Queen — recklessness cannot substitute for the specific intent required in conspiracy.	Gerakiteys; Giorgianni

Practice points

• Map the spokes before anything else: in a multi-party fraud or drug-distribution indictment, chart who knew of whom. If the peripheral parties dealt only with the hub and were ignorant of each other, the indictment alleges a conspiracy the evidence cannot support.

• Run it as a no-case application: Gerakiteys is a failure-of-proof argument, not a technicality — the Crown has proved several narrow conspiracies, not the one wide conspiracy charged. Frame the submission around the gap between particulars and evidence.

• Hold the Crown to its particulars: where the particulars define a general conspiracy and the Crown does not amend, it cannot shift ground at the close of evidence to a narrower case. Object early to any late reformulation.

• Know the narrower-conspiracy exception: a jury may convict of a narrower conspiracy if it is not substantially different from what the accused was prepared to meet. Anticipate the Crown running that, and identify the forensic prejudice — what would have been cross-examined differently.

• Press for acquittal, not retrial: Gibbs CJ — a retrial must not be ordered merely to let the Crown "mend its hand" where the evidence was simply insufficient. On a successful appeal, seek a judgment of acquittal as of right (Murphy and Deane JJ), leaving the Crown to any fresh, narrower indictment.

• Attack the fault element: conspiracy demands a common intention at the time of the agreement. Foresight of probable consequences or recklessness as to the unlawful circumstances is bad in law (Gerakiteys, approved in Giorgianni) — the same fault threshold you run on the s 323(1)(a) accessorial limb.

Case-law bank — Element 1: the agreement

Case	Citation	The point on this element
Gerakiteys v The Queen	(1984) 153 CLR 317; [1984] HCA 8	The lead authority. The gist of conspiracy is the agreement (Deane J at 334); a common agreement is essential. Doctor + insurance agent (hub) and nine claimants each intending to defraud only his own insurer — no common purpose to defraud "divers insurance companies", so the single conspiracy charged failed. Pin cites: 320–321 (Gibbs CJ), 323 (Murphy J), 327 (Brennan J), 333–335 (Deane J).
Nirta v The Queen; The Queen v Pelle	[1983] FCA 360; (1983) 79 FLR 190	Full Federal Court (Fox, Gallop and Jenkinson JJ, 7 Dec 1983), on appeal from the SC of the ACT, on s 86 Crimes Act 1914 (Cth). Existence and content of the agreement inferable from conduct; no need to show active participation by overt acts; overt acts are evidence of the agreement and the parties' intentions; no need to prove the agreement came into existence at a specified time; unanimity required where multiple criminal acts were contemplated. Convictions quashed (directions confused conspiracy with aiding and abetting).
R v Minuzzo & Williams	[1984] VR 417	Full Court (Young CJ, Starke and King JJ). Existence and content of the agreement may be inferred from the conduct of the accused; the prosecution need not prove when or where it was formed. Still applied — DPP v Alimic [2022] VCC 256.
R v Orton	[1922] VLR 469	Full Court. The jury may infer the existence of the agreement from a course of conduct. (Report text not retrieved — accurate at this level of generality; get the report if load-bearing.)
R v Moran & Mokbel	[1999] 2 VR 87	Shared intention without an agreement is not conspiracy; the parties must have intended to form the agreement at the time it was made. Merely expecting that someone will offend once conditions are met is not enough. (Court, date and bench unverified — cited in the JCV Charge Book. Do not confuse with R v Moran and Byrnes (1987) 31 A Crim R 248.)
R v McCaul and Palmer	[1983] 2 VR 419	Narrow point only: where the agreement identified only a class of offence, the jury must be satisfied the agreement extended to the specific offence charged — the possibility of a different offence within that class cannot be excluded. Do not cite it for the broad "must be a specific offence" rule; that rests on s 321(1)–(2), Gerakiteys and Nirta.
DPP v Johnson & Ors (Ruling No 7)	[2007] VSC 579	A generalised intention to traffick drugs is insufficient; intent must attach to the particular drug the subject of the agreement (s 321(2)(b)). First-instance ruling — persuasive only. Not authority that a mistake about the substance actually present defeats the conspiracy: s 321(3) covers that.
R v Coles	[1984] 1 NSWLR 726	NSW CCA. The JCV cites it under Identification of the Conspiracy for the rule that the jury cannot convict of a conspiracy different from the one alleged. Also cited for the persons-unknown point (identity of co-conspirators not an essential element) — partly verified only; cite with Ongley, Deakin, Roberts and Chrastny.
R v Aston and Burnell	(1987) 44 SASR 436	SASC (CCA). Parties need not know how the offence will be committed or the identities of co-conspirators, but must know of their existence and share a common design. Note the name — not "Aston & Burnell v R". Not in the JCV Charge Book: interstate persuasive support only, and the ratio is plausible but unconfirmed.
Rolls v The Queen; Sleiman v The Queen	(2011) 34 VR 80; [2011] VSCA 401	s 321 does not require a party to the agreement to actively participate in the offence's commission. The appellants had discussed murdering Mr Rolls' wife; since there was an agreement to murder her, it was immaterial that execution was assigned to only one of them. But mere acquiescence in a plan is insufficient — a joint arrangement is required. (Rolls is the first-named appellant — "Sleiman v R" alone is an incomplete style.)
Bui v The Queen; Hargrave v The Queen	[2011] VSCA 404	Applying Rolls; Sleiman three days later: the agreed course of conduct may involve committing the offence as a secondary party. "The conspiracy provisions do not require that one or more of the parties … must commit the actual offence, rather that they must be involved in the commission of the offence." Parliament intended those who arrange for third parties to commit crimes to face conspiracy liability. Contrast the English position that there is no conspiracy to aid and abet (Hollinshead [1985] AC 975; Kenning [2008] EWCA Crim 1534).
R v Gill and Henry	(1818) 2 B & Ald 204	The agreement need not specify who the particular victim would be, or how the offence would be carried out.

Do not cross-pair these two citations

(2011) 34 VR 80 is Rolls; Sleiman ([2011] VSCA 401) — it is not Bui; Hargrave ([2011] VSCA 404). They are consecutive VSCA decisions from December 2011 on the same point and are routinely conflated.

ELEMENT 2 Intention to form the agreement

Did the parties intend to form the agreement at the time it was made? The parties must have intended to form the agreement when it was made — assessed subjectively. A person who outwardly assents but does not in fact intend the purpose to be carried out (a "pretended" agreement) is not guilty; the prosecution must exclude that beyond reasonable doubt. Acting as if an agreement had been made is cogent evidence of an intention to agree, but it is only evidence and may be rebutted. Liability follows the accused's actual agreement. A person should not be assumed to have agreed merely because it is likely they knew they were playing a part in a large criminal enterprise. Limited involvement may evidence unawareness of the full scope but is not conclusive — the question is the extent of the agreement, not of the participation.

Case-law bank — Element 2: intention to form the agreement

Case	Citation	The point on this element
R v Thomson	(1965) 50 Cr App R 1	The source authority. The Crown must prove in each alleged conspirator an intention, at the time the agreement was made, to carry out the unlawful purpose; a person who outwardly assents but does not intend the purpose to be carried out is not guilty. The JCV cites it for intention being assessed subjectively. Court correction: this is a first-instance ruling of Lawton J, not a Court of Criminal Appeal decision (Law Com No 318 at [2.49] n 60). Now codified in Victoria by s 321(2)(a).
Peters v The Queen	(1998) 192 CLR 493; [1998] HCA 7	HCA, 2 Feb 1998 (Toohey, Gaudron, McHugh, Gummow and Kirby JJ); appeal dismissed. The proposition — "evidence that the accused acted and spoke as if he was making and had made an agreement may provide cogent evidence of a guilty mind; but it is only evidence and can be rebutted" — is McHugh J at [59] (see also [55]–[56]), adopting Lawton J in Thomson. It is obiter. What Peters actually decides is the dishonesty direction on conspiracy to defraud: the judge identifies the knowledge, belief or intent said to render the conduct dishonest, the jury decides dishonesty by the standards of ordinary decent people, and the Crown need not prove the accused knew his conduct was dishonest by those standards — the Ghosh second limb is rejected.
R v Moran & Mokbel	[1999] 2 VR 87	Cited in the JCV Charge Book under Intention to Form an Agreement: the parties must have intended to form the agreement at the time it was made. (Report unverified.)
R v Trudgeon — commonly misfiled here	(1988) 39 A Crim R 252	Read the real ratio. NSW CCA: having regard to the definition of "supply" in the Drug Misuse and Trafficking Act 1985 (NSW), the Crown cannot charge conspiracy to supply where the accused agreed to supply the prohibited drug to that other person — a supplier and the intended recipient are not conspirators to supply. (Conspiracy is available where the agreement is to supply the public generally or non-conspirators: Tannous v The Queen (1989) 64 ALJR 141.) Its use for a general "shared assumption is not an agreement" proposition appears only in teaching materials and is unverified; and it turns on a NSW statutory definition, so its direct weight in Victoria is limited.
Gerakiteys v The Queen	(1984) 153 CLR 317; [1984] HCA 8	The question is the extent of the agreement, not of the participation; limited involvement is evidence of the scope agreed but is not conclusive.
R v Griffiths	[1966] 1 QB 589; [1965] 2 All ER 448	Same point on scope and awareness — see Element 4 / single-vs-multiple below.
ELEMENT 3 Intention that the principal offence be committed — s 321(2)
Did the accused AND at least one other party intend that the principal offence be committed? s 321(2)(a): both the accused and at least one other party must have intended that the offence the subject of the agreement (not some other offence) be committed. Judged subjectively. Recklessness is not sufficient. The statutory source is s 321(2)(a) itself; the supporting authority is Gerakiteys (and, for the Commonwealth, R v LK). Motive is irrelevant. The parties need not share the same motive, provided both intended the offence be committed — "it is the intention to carry out the crime that constitutes the necessary mens rea" (Yip Chiu-Cheung). s 321(2)(b) — facts and circumstances: the parties must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the conduct is to take place. Actual knowledge or belief is required — mere suspicion is not enough.

Case-law bank — Element 3: intention that the offence be committed

Case	Citation	The point on this element
s 321(2)(a) Crimes Act 1958 (Vic)	statute	Lead with the statute, not a case. The accused and at least one other party must intend that the offence the subject of the agreement be committed. This is the primary authority for both the shared-intention requirement and the exclusion of recklessness.
Gerakiteys v The Queen	(1984) 153 CLR 317; [1984] HCA 8	The Australian authority for conspiracy fault, including that recklessness will not suffice (pin cites 320, 323, 327, 334). The Commonwealth AGD Criminal Code Guide footnotes Gerakiteys, not Giorgianni, for "recklessness … is not sufficient for conviction of conspiracy".
R v LK	(2010) 241 CLR 177; [2010] HCA 17	HCA, 26 May 2010; Crown appeals dismissed. "There cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence said to be the subject of the conspiracy." Conspiracy requires intention that an offence be committed, importing knowledge of or belief in the facts that make the agreed conduct an offence. Style: R v LK, not "R v LK & RK".
Yip Chiu-Cheung v The Queen	[1995] 1 AC 111	Privy Council (Hong Kong), 16 June 1994, Lord Griffiths. "It is the intention to carry out the crime that constitutes the necessary mens rea for the offence." An undercover drug-enforcement officer who genuinely intended to carry heroin through customs was himself a conspirator, notwithstanding that he acted "courageously and with the best of motives" — motive is irrelevant to intention. Corollary: if the officer merely feigns agreement and intends to prevent the offence, there is no conspiracy. (Do not attach a neutral citation to a 1994 PC decision.)
R v Thomson	(1965) 50 Cr App R 1	An accused may appear to agree while privately not intending the offence be committed; the Crown must exclude that. Trial ruling of Lawton J.
R v Barbouttis	(1995) 37 NSWLR 256	Per the JCV, properly cited under Intention or Belief in Facts and Circumstances for the requirement of actual knowledge or belief, not mere suspicion. Do not cite it for impossibility — see the amber flag at the DEFENCES gate.
DPP v Johnson & Ors (Ruling No 7)	[2007] VSC 579	The intention must attach to the specific agreed offence — a generalised intention to traffick drugs of a kind is not enough (s 321(2)(b)). First-instance ruling.

Two corrections to the fault authorities — both are automatic-fail risks

(1) R v Anderson [1986] AC 27 states the OPPOSITE of the proposition it is usually given for. Anderson agreed for £20,000 to supply diamond wire for a prison escape, took £2,000, and said he never believed the escape could succeed. Conviction upheld. Lord Bridge held (i) it is not necessary that D intend the agreement be carried out or believe it capable of success, and (ii) it is necessary that D intended to play some part in the agreed course of conduct. So Anderson is authority that D need not intend the plan succeed — not that there is no conspiracy where the other party does not intend the offence. It is also irreconcilable with Yip Chiu-Cheung on limb (i), was reinterpreted on limb (ii) by R v Siracusa (1990) 90 Cr App R 340, was criticised by the Law Commission (Conspiracy and Attempts, Law Com No 318, 2009), and is not Australian law. For the "at least one other party must intend" proposition use s 321(2)(a), Yip Chiu-Cheung, Peters at [56] and (Cth) s 11.5(2)(b) with R v LK. (2) Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 is misfiled under conspiracy. It is an accessorial liability case (culpable driving; aiding and abetting): "No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted …" Wilful blindness equates to knowledge; neither negligence nor recklessness suffices. Usable by analogy as part of the Australian actual-knowledge line, but not as primary authority for conspiracy fault — and now confined by Rohan to s 323(1)(a) and the common law.

At least TWO guilty minds are required

The fault element must be shared: both the accused and at least one other party must intend the offence be committed (s 321(2)(a)). If only the accused so intends — e.g. the "other party" is an undercover officer who does not intend the crime be carried out, or who merely feigns agreement — the third element fails and there is no conspiracy (Yip Chiu-Cheung, by corollary). A person cannot conspire alone. For the Commonwealth the same result follows from s 11.5(2)(b) (R v LK).

SCOPE Scope, particulars & absolute-liability elements

Exactly what agreement is alleged — and does its scope reach the charged element? Particulars (Caldwell): each accused is entitled to particulars of the people with whom it is alleged he or she conspired, and of the scope of the conspiracy alleged — and the prosecution must provide them in the course of the opening address, at the very latest. The Crown "cannot simply open with the overt acts of which particulars have been given, leaving it to the end of the evidence to select from among them the conspiracy that seems to be the strongest". Prove it as alleged: the jury cannot convict of a conspiracy different from the one charged (Gerakiteys; Coles; Ongley; Caldwell). Multiple objectives: for conspiracy to defraud alleging two or more distinct objectives, each objective is an essential element and must be proved — the charge is not made out by proof of just one. Where the agreement is to commit two or more specific offences, the Judicial College hedges: each offence "probably" constitutes an essential element (Caldwell; Roberts). Reproduce the hedge. → The pleading corollary — the Crown is bound by how it particularises: where victims are named in the presentment, the judge must determine whether the Crown alleges a conspiracy against those specific people — in which case the agreement must be proved to have extended to all of them (R v Maria [1957] St R Qd 512, cited in Caldwell) — or whether they are named merely as particulars marking the boundaries (Ongley; Deakin). This is the other half of the Caldwell package and pairs with "no need to name the victim" at Element 1. → Absolute-liability elements (Kola): for an element of absolute liability (e.g. drug quantity) the Crown need not prove the accused subjectively intended, knew or believed it. But state both halves: the Crown must still prove that the scope of the agreement extended to — here — a commercial quantity, i.e. that a commercial quantity would have been imported had the agreement been executed. What falls away is the accused's subjective belief, not the agreement's objective reach. → Unilateral escalation: if one party, without recourse to the other, places 3 kg of cocaine in their suitcase, the other is not culpable for conspiring to import a commercial quantity — that placement was not undertaken pursuant to their agreement (Kola at [29]). → Broad agreement + mistaken belief: if the parties agree to import "as much cocaine as will fit into a particular suitcase" and that amount is not less than 2 kg, both are culpable even if it is not proved they knew the amount would reach the commercial threshold. A reasonable but mistaken belief that the amount would be smaller is irrelevant (Kola at [29]).

The authorities

Case	Facts	Outcome	Findings & ratio
R v Caldwell (2009) 22 VR 93 → pleadings vs particulars	Michael Gaythorne Caldwell tried and convicted in the County Court of two counts of conspiracy under s 321 Crimes Act 1958 (Vic): conspiracy to steal tree ferns, and conspiracy to steal timber logs. The presentment particulars nominated three specific landowners from whom the ferns and timber were allegedly stolen. At trial the evidence established a conspiracy to steal existed, but the Crown could not conclusively prove an agreement to steal from all three nominated landowners. Caldwell applied to discharge the jury and appealed, arguing that because the Crown specified three landowners, proving an agreement to steal from all three was an essential element.	Leave to appeal refused (Kellam, Dodds-Streeton and Weinberg JJA)	It was not essential for the Crown to prove an agreement to steal from each of the three nominated owners. Weinberg JA drew a fundamental distinction between the essential elements of conspiracy and its particulars: particulars of overt acts, victims or specific properties are not elements of the offence. An accused is entitled to particulars to know the case to be met, but a variance between particulars and evidence does not automatically invalidate a conviction unless it causes a substantial miscarriage of justice or changes the essential nature of the conspiracy charged. Precision still required: because the gravamen is the agreement, the conspiracy must be identified with reasonable precision from the outset, and the Crown must prove the agreement it framed. Where the Crown alleges an agreement to commit multiple distinct offences (as opposed to multiple overt acts of a single ongoing conspiracy), those offences may be essential elements — but the identity of the landowners here was mere particulars, not an element of the foundational agreement to steal.
DPP (Cth) v Kola HCA 14 → absolute liability & the co-conspirators' rule	Alfred Kola convicted in the District Court of South Australia of conspiracy to import a commercial quantity of a border-controlled drug (cocaine) contrary to ss 11.5(1) and 307.1(1) Criminal Code (Cth). Under s 307.1(3) the physical element of the drug's weight (commercial quantity) is a circumstance attracting absolute liability — no fault element applies to it in the predicate offence. The SA Court of Appeal set the conviction aside, holding the Crown had to prove Kola entered the agreement with subjective knowledge the shipment would be a commercial quantity, and that the conduct of his co-conspirators in Panama (outside his presence) could not be used to determine the scope of the conspiracy. The CDPP appealed.	Appeal allowed unanimously — CA orders set aside; conviction restored	The Crown does not need to prove the accused subjectively intended or knew that the weight would be a commercial quantity; and the jury was entitled to have regard to the co-conspirators' conduct in Panama City. Scope-of-the-agreement rule: the crucial question is whether the scope of the agreement, if successfully executed, would result in commission of the predicate offence. Under s 11.5(2A), because absolute liability applies to weight in the predicate offence, it is unnecessary to prove the conspirators knew or believed the drug would weigh 2kg or more. Example: parties who agree to import "as much cocaine as will fit into a suitcase", where that capacity is at least 2kg, are guilty of conspiracy to import a commercial quantity even if they mistakenly but reasonably believed it would be less.
Franze v R VSCA 352 (Sitar) → factual impossibility	Franze charged with conspiring with Sitar and Ramazanoglu to possess commercial quantities of border-controlled drugs (methylamphetamine and cocaine). Unbeknown to the conspirators, the AFP had intercepted the import, seized the drugs and substituted them with water before delivery. Franze argued he could not be convicted of conspiracy to possess drugs because, at the time of the alleged possession, the physical subject matter of the conspiracy did not exist.	Appeal dismissed	Factual impossibility is not a defence to conspiracy or attempt. The agreement to commit the crime is the complete offence; even where completion is factually impossible because of police intervention, the legal culpability of the agreement remains fully intact (and cf s 321G(3) for incitement).
R v Sirat (1986) 83 Cr App R 41 → imaginary crimes	English authority examining the limits of conspiracy and incitement where the objective pursued is not actually a crime in law.	Legal impossibility remains a complete defence	While factual impossibility (e.g. attempting to possess simulated drugs) is no defence, legal impossibility / "imaginary crimes" is a complete defence. If parties agree, or one incites another, to pursue conduct they erroneously believe is illegal but which is not prohibited by any Victorian or Commonwealth statute or common law offence, no criminal liability arises. The criminal law does not punish an evil mind operating in a legal vacuum — there must be an agreement to commit a legally recognised offence.

The Kola / LK distinction — fault elements in the predicate offence

	DPP (Cth) v Kola	R v LK (2010) 241 CLR 177
Predicate offence	Importing a commercial quantity of a border-controlled drug (s 307.1(1))	Dealing with proceeds of crime (s 400.3(2))
The contested element	Weight — commercial quantity	That the money was "proceeds of crime"
Fault attaching to it	Absolute liability (s 307.1(3)) — no fault element applies	Specified fault element of recklessness
Held	No subjective knowledge or intention as to weight need be proved (s 11.5(2A))	Parties cannot conspire to be "reckless" — because conspiracy is a crime of specific intent, they must intend to deal with money they actually know or believe to be proceeds of crime
The rule	Kola confirms the LK standard does not apply to elements of strict or absolute liability	LK governs where the predicate element carries a specified fault element

The co-conspirators' rule — out-of-presence acts

• Admissible to prove scope: under both the common law and the uniform Evidence Acts, the acts and declarations of co-conspirators in the absence of the accused are admissible to prove the nature, scope and participation in the conspiracy.

• The precondition: there must be reasonable independent evidence of the preconcert on the whole of the evidence.

• What Kola adds: the physical acts performed by co-conspirators "on the ground" — such as loading the shipment in Panama — are critical circumstantial evidence of what the parties actually agreed to do.

Comparative summary

Authority	Predicate issue	Ratio	Forensic application
R v Caldwell (2009)	Pleadings vs particulars of the agreement	Particulars (e.g. the specific identity of victims) are not essential elements of the conspiracy	Resist a no-case submission built on minor variances between presentment particulars and the evidence — and, for the defence, confine the argument to variance that changes the essential nature of the conspiracy or causes a substantial miscarriage
DPP (Cth) v Kola	Absolute liability & the co-conspirators' rule	No subjective fault applies to absolute liability elements in conspiracy; out-of-presence acts are admissible	Use co-conspirators' physical actions on the ground as circumstantial evidence of the ultimate scope of the agreement
Franze / Sitar	Factual impossibility	Conspiracy is complete upon agreement; subsequent police intervention or substitution of drugs is no defence	Advise clients that police drug-substitution operations do not negate inchoate liability for conspiracy or attempt
R v Sirat (1986) (unverified — see flag)	Legal impossibility / imaginary crimes	The objective of the agreement or incitement must be a real crime recognised by law	Apply to quash an indictment where the agreed conduct does not constitute an offence known to Victorian law

Case-law bank — scope, particulars & absolute liability

Case	Citation	The point on this element
R v Caldwell	[2009] VSCA 41; (2009) 22 VR 93; (2009) 194 A Crim R 171	VSCA (not VSC) — a conspiracy to defraud case, i.e. the surviving common law conspiracy (s 321F(2)). Particulars of co-conspirators and scope by the opening at the latest; multiple objectives each essential (with the College's "probably" hedge for multiple specific offences); the Maria/Ongley pleading corollary; no need to name victim or method; withdrawal no defence. Citation trap: there is a different R v Caldwell [2004] VSCA 40, and the English recklessness case R v Caldwell [1982] AC 341 — always give the year and VSCA number. (Bench, date and orders unverified — pull [2009] VSCA 41 before relying on the facts.)
Gerakiteys v The Queen	(1984) 153 CLR 317; [1984] HCA 8	The Crown must prove the conspiracy as alleged; where the evidence establishes only separate conspiracies rather than the single overarching conspiracy charged, the conviction cannot stand. Correction: Gerakiteys is authority against convicting on a differently-constituted conspiracy — Gibbs CJ held the jury "could not have found that the applicant and [the agent] and any one or more of the nine claimants were guilty of the conspiracy alleged". Do not cite it for "a narrower conspiracy may be found"; the English practice of convicting on an included narrower conspiracy is discussed by contrast with Gerakiteys, not as its holding.
DPP (Cth) v Kola	[2024] HCA 14	The current leading authority on absolute-liability elements in conspiracy. HCA, 17 April 2024; Gageler CJ, Steward, Gleeson, Jagot and Beech-Jones JJ, unanimous; on appeal from the SA Court of Appeal; appeal allowed, conviction restored. Conspiracy to import a commercial quantity of a border controlled drug (ss 11.5(1), 307.1(1)). At [24]: quantity is an absolute liability element under s 307.1(3) — carried into the conspiracy by s 11.5(7A) and shielded from s 11.5(2)(b) by s 11.5(2A). At [26]: proving intention "does not extend to having to prove that the accused and another intended to import a border controlled drug knowing or believing that the amount to be imported … would be a commercial quantity". At [27]: "neither para (a), nor (b), nor © of s 11.5(2) is an element of the conspiracy offence created by s 11.5(1)". At [29]: the unilateral-escalation and suitcase examples. At [44]–[45]: co-conspirators' evidence, and no preference between the Standen and Le directions. No CLR citation — cite the medium-neutral alone.
R v Maria	[1957] St R Qd 512	Cited in Caldwell: where victims are named as the target of the conspiracy, the agreement must be proved to have extended to all of them.
R v Ongley	(1940) 57 WN (NSW) 116	Named victims may instead be mere particulars marking the boundaries of the conspiracy; the jury cannot convict of a conspiracy different from the one alleged.
R v Deakin	(1972) 56 Cr App R 841	Same — the particulars/allegation distinction.
R v Roberts	[1998] 1 Cr App R 441	Cited with Caldwell for multiple objectives / multiple specific offences each being an essential element.

4 · Single conspiracy or multiple conspiracies?

Situation	Analysis	Authority
Single conspiracy	All parties were aware of the scope of the agreement and agreed to pursue the same offence.	Gerakiteys [1984] HCA 8
Wheel / hub-and-spoke	Related conspiracies emanating from a central figure, whose scope varies with each party's knowledge and belief. No rim — no shared awareness of a common design — means no single conspiracy, and the correct course is separate counts.	Griffiths [1966] 1 QB 589; Gerakiteys
Chain / no direct communication	Each participant is aware only of the adjacent parties and their own role; conspirators need not communicate directly or know each other's identity — the question is always whether their acts were done in pursuance of a criminal purpose held in common between them.	Meyrick and Ribuffi (1929) 21 Cr App R 94 at 102 — cite for common purpose, not as "the chain case"; see the bank below
New party joins	Fully aware of the existing scope and agrees the offence be committed → one (expanded) conspiracy. Aware of and agreeing to only part → two conspiracies: a broad one between the originals and a narrower one including the new party — which must be charged as separate counts. The jury still cannot convict of a conspiracy other than the one alleged.	Gerakiteys; Griffiths

Case-law bank — single vs multiple conspiracies

Case	Citation	The point on this element
R v Griffiths	[1966] 1 QB 589; [1965] 2 All ER 448	Court of Criminal Appeal (not Court of Appeal — the CCA survived until 1966), 7 April 1965; Paull, Phillimore and Fenton Atkinson JJ. Lime sellers each dealt only with Griffiths and none was aware of the others' arrangements: no evidence of one conspiracy between all those convicted, as opposed to several separate conspiracies. The single count was improper and the convictions were quashed. It establishes the negative — no rim means no single conspiracy. Applied in Shillam [2013] EWCA Crim 160 and Johnson [2020] EWCA Crim 482.
Rex v Meyrick and Ribuffi — not "the chain case"	(1929) 21 Cr App R 94; (1929) 45 TLR 421	Court of Criminal Appeal, 1929 (Lord Hewart CJ) — use (1929), not (1930). Conspirators need not communicate directly or know each other's identity; "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?" (at 102). Appeals dismissed — one overall conspiracy made out. Label correction: Hewart CJ used both metaphors (a circle with a person at the centre and a chain A→B→C), and on the facts it was hub-and-spoke. Cite it for no direct communication required + common purpose, not as "the chain case".
Gerakiteys v The Queen	(1984) 153 CLR 317; [1984] HCA 8	The Australian authority: nine claimants each intending to defraud only his own insurer did not share a common purpose to defraud insurers generally — hub without rim.

5 · Parties to a conspiracy

Party	Rule	Authority
Minimum two	At least two parties with the guilty intention — a person cannot conspire alone.	s 321(2)(a)
Spouses	A married person is not criminally responsible for conspiracy with his or her spouse alone, nor for incitement of his or her spouse (s 339(2)). Carve-outs presently operating: treason and murder only (the s 339(1) reference to "any offence specified in section 4" is a dead cross-reference — s 4 is repealed). A conspiracy also involving a third party is unaffected. Liability as a principal offender in any other offence is untouched (s 339(3)).	s 339 (Vic); cf Chrastny [1991] 1 WLR 1381 (English statute)
A child co-party	Guilty even if the other party — or all other parties — is a child presumed unable to commit the offence under Youth Justice Act 2024 (Vic) s 10 (under 12, conclusive) or s 11 (12–13, rebutted only if the prosecution proves beyond reasonable doubt that the child knew the conduct was seriously wrong in a moral sense; s 11(3) — that knowledge cannot be inferred merely from engaging in the conduct).	s 321AA (from 30 Sept 2025)
Companies	A company may be a party where its directors are parties to the agreement, and two directors may conspire with each other and with the company. The bar bites only where the company has a single directing mind — then there are not the two minds an agreement requires. A director may conspire to defraud a company of which they later become the directing mind.	McDonnell [1966] 1 QB 233; Maher (1986) 83 FLR 332
Undercover police	A conspiracy can be formed with an undercover officer — but only if the officer genuinely intends the offence actually be carried out. If the officer feigns agreement, the shared-intention element fails. An officer acting under orders from a superior still enters the agreement.	Yip Chiu-Cheung [1995] 1 AC 111; Ong [2007] VSCA 206
Identity	The accused need not know the identity of the other parties, but must know at least one other exists and share a common design as to scope.	Coles [1984] 1 NSWLR 726; Aston and Burnell (1987) 44 SASR 436

Case-law bank — parties

Case	Citation	The point on this element
Yip Chiu-Cheung v The Queen	[1995] 1 AC 111	Privy Council. An undercover officer who genuinely intended to carry the heroin through customs was a conspirator; motive is irrelevant to intention. The safest authority for the undercover-officer point in an Australian answer.
R v Viet Dung Ong	[2007] VSCA 206; (2007) 176 A Crim R 366	VSCA. "A police officer who agrees to pursue a criminal offence will have entered into an agreement, even if s/he was under orders from a superior officer to do so." Also cited at [25] for the Commonwealth overt-act unanimity requirement. (Ratio secondary-sourced from the JCV Charge Book; pair with Yip Chiu-Cheung, which is safer to cite. Verify the [25] pin cite.)
R v Chrastny (No 1)	[1991] 1 WLR 1381; [1992] 1 All ER 189	English CA (Crim Div), 4 March 1991. The statutory exemption in s 2(2)(a) Criminal Law Act 1977 (UK) applies only where the spouse is the sole other party; the wife was guilty because she was party to, and aware of, an agreement with persons other than her husband. Two framing corrections: it is a statutory exemption, not common law "spousal immunity"; and the operative fact is her agreement with third parties, not merely that third parties existed. Victorian currency warning: s 321 contains no spousal exemption — Victoria's is s 339. Chrastny is analogical only. Do not attach the Cr App R reference in circulation for Chrastny — it is unverified and appears to be a transposition of the Yip Chiu-Cheung report reference. Use the WLR or All ER citations above. (Chrastny (No 2) at 1385 is confiscation — do not cite it for this.)
R v McDonnell	[1966] 1 QB 233; (1966) 50 Cr App R 5	Bristol Assizes, Nield J — a trial ruling, persuasive only. "A company and a director cannot be convicted of conspiracy when the only human being who is said to have broken the law or intended to do so is the one director." Do not overstate it: the bar applies only to a single directing mind. Confine it to criminal conspiracy — in Lux Films Ltd v Fowler [2026] EWHC 963 (KB) (11 May 2026) the English High Court refused to apply McDonnell to the tort of unlawful means conspiracy.
R v Maher	(1986) 83 FLR 332 (parallel [1987] 1 Qd R 171 — check)	The JCV cites the FLR report for the narrow timing point: a director is capable of conspiring to defraud a company of which he or she later becomes the directing mind. It does not depart from McDonnell — it answers a different question. Its dishonesty aspect (approving Ghosh directions) is superseded in Australia by Peters. (The FLR/Qd R pairing is unverified — very likely the same case reported twice.)
R v Coles	[1984] 1 NSWLR 726	Conspiring with persons unknown is possible; the identity of co-conspirators is not an essential element. (Partly verified — the JCV cites it for the prove-as-alleged rule.)
R v Aston and Burnell	(1987) 44 SASR 436	Must know of the existence of at least one other party and share a common design as to scope. Interstate persuasive only; ratio unconfirmed.
DEFENCES Impossibility, withdrawal & acquittal of co-conspirators
→ Factual impossibility — no bar (s 321(3)): "A person may be found guilty … notwithstanding the existence of facts of which the person is unaware which make commission of the offence by the agreed course of conduct impossible." Lead with the statute. The Commonwealth equivalent is s 11.5(3)(a). → But legal impossibility / an imaginary crime IS a bar: s 321(3) cures factual impossibility only. If the agreed conduct would not amount to an offence at all, there is no conspiracy however guilty the state of mind — the agreed crime must be a real offence (Sirat). This is the likely examinable distinction. → Withdrawal — NOT a defence: because the offence is complete on formation of the agreement, later withdrawal is logically incapable of being a defence in Victoria; it goes to sentence. Lead with Savvas v R (1995) 183 CLR 1 (HCA), with Caldwell as the Victorian application; also Woss v Jacobsen (1985) 11 FCR 243. Contrast the Commonwealth, where withdrawal before the overt act is a defence — but note it is s 11.5(5), not s 11.5(4). → Acquittal of co-conspirators (s 321B): a conviction "may stand notwithstanding" that other alleged conspirators are or may be acquitted — unless in all the circumstances the conviction is inconsistent with the acquittal (Darby). Different verdicts are permissible where the admissible evidence differs; impermissible where there is no factual basis to convict one without the other. Where the evidence differs significantly, separate trials are preferable. → Directing the jury: it may be appropriate to direct that acquitting one alleged conspirator requires acquitting the other; the judge must not direct that convicting one requires convicting the other. Cite Darby (and Ong) as primary authority for this — the attribution to Aydin is plausible but unconfirmed.

R v Barbouttis — the impossibility proposition is the DISSENT; the holding is the opposite

In R v Barbouttis (1995) 37 NSWLR 256 the respondents agreed to buy fifty boxes of cigarettes from an undercover officer believing them stolen. The cigarettes were not stolen. Held by Dunford and Smart JJ, Gleeson CJ dissenting: no conspiracy — on an objective approach the agreed course of conduct, carried out as intended, would not have involved an offence, so factual impossibility was fatal. The Crown appeal failed. It was Gleeson CJ in dissent who applied the subjective approach. So Barbouttis is authority for the opposite of "impossibility is no bar" at NSW common law — it is the decision that s 321(3) and s 11.5(3)(a) were enacted to answer (the AGD Criminal Code Guide discusses the cigarette trap in exactly those terms). NSW itself has since departed from it: R v El Azzi (2001) 125 A Crim R 113. Cite the statute for impossibility, and Barbouttis only as the displaced objective common-law approach, or (per the JCV) for actual knowledge/belief over suspicion. Whether the High Court ever determined the Barbouttis appeal is unresolved — do not cite it as High Court authority either way.

Case-law bank — impossibility, withdrawal & inconsistent verdicts

Case	Citation	The point on this element
s 321(3) Crimes Act 1958 (Vic)	statute	The authority for factual impossibility being no bar. Do not use Barbouttis for this.
R v Sirat	(1986) 83 Cr App R 41	English CA (Crim Div). The offence conspired at must be a real offence; an agreement to commit an "imaginary crime" is not conspiracy. Prefer the (1986) form (judgment 1985, reported in the 1986 volume). Caution: Sirat is also invoked in England on whether there can be a conspiracy to aid and abet — a point on which Victoria takes the opposite view (Bui; Hargrave). Do not let the two run together.
R v El Azzi	(2001) 125 A Crim R 113	Per the current NSW Criminal Trial Courts Bench Book: "An accused may nevertheless be liable for conspiracies to do the factually impossible" — NSW's departure from Barbouttis.
Savvas v The Queen	(1995) 183 CLR 1	High Court — lead with this for withdrawal. The offence is complete on formation of the agreement, so withdrawal cannot be a defence; it is relevant to sentence.
Woss v Jacobsen	(1985) 11 FCR 243	Supporting authority on the same point.
R v Caldwell	[2009] VSCA 41; (2009) 22 VR 93	The Victorian application: withdrawal is no defence. The weakest of the three authorities — cite it after Savvas.
R v Darby	(1982) 148 CLR 668; [1982] HCA 32	HCA, 18 May 1982 — the binding authority. The old rule of consistency (R v Plummer: acquittal of one conspirator compels acquittal of the other) is not part of Australian law. "The conviction of one conspirator may stand, even if a co-conspirator is or may be acquitted, unless in all the circumstances the conviction is inconsistent with the acquittal", in which case appellate intervention proceeds on ordinary unsafe-verdict principles. Differing verdicts are unremarkable where the admissible evidence against each accused differs. Companion citation MacKenzie v The Queen (1996) 190 CLR 348.
Mickelberg v The Queen	(1987) 29 A Crim R 442	WA Supreme Court (CCA); Wallace, Olney and Pidgeon JJ; 18 Nov 1987. Applying Darby, and extending it twice: to separate trials, and to the case where the co-conspirator's conviction is quashed on appeal rather than the co-conspirator being acquitted at trial. Wallace J: a conviction "may stand notwithstanding that the latter is acquitted or his conviction is quashed on appeal unless in all the circumstances the conviction is inconsistent with the acquittal". Do not cite (1989) 167 CLR 259 — that is the High Court appeal, which decides only that the High Court has no power to receive fresh evidence in its appellate jurisdiction, and says nothing about inconsistent verdicts. WA intermediate appellate — persuasive only; Darby is the binding authority. (The Mickelberg convictions were finally quashed in 2004 on unrelated fresh-evidence grounds: [2004] WASCA 145.)
R v Aydin	[2005] VSCA 87	Conspiracy to attempt — a person may not be charged with conspiracy to commit an "attempted" crime, the exception being attempting to pervert the course of justice (a substantive offence, not a true attempt). Statutory-hook correction: this is not s 321R — see the amber flag above. The jury-direction point (different verdicts open only where there is a factual basis to convict one without the others; the judge must not direct that convicting one requires convicting the others) is attributed to Aydin in the bench notes but is not confirmed — cite Darby and Ong for it.
EVIDENCE The co-conspirators' rule — Tripodi / Ahern
When can one conspirator's acts and words be used against another? The gateway is for the TRIAL JUDGE. The judge must first be satisfied there is "reasonable evidence, independent of the acts and words of alleged co-conspirators out of the defendant's presence, from which an agreement can be inferred" (Ahern at 100). Both italicised limbs are load-bearing: it is the judge's question, and the independent evidence must be independent of those out-of-court acts and declarations — not merely "independent evidence". Once the gateway is passed: "the acts and declarations of the participants in furtherance of the agreement may be used to prove not only the existence of the conspiracy, but also the defendant's participation in it" (Ahern). The material must be things done or said in furtherance of the common purpose — directions, instructions, arrangements, or utterances accompanying acts — not mere narrative of past events (Tripodi at 7). "Reasonable evidence" carries an element of judicial discretion to limit the use made of the co-conspirator's acts and declarations where admission might operate unfairly. Sufficiency is for the judge alone; the jury must be told not to conclude guilt "merely on the say so of an alleged conspirator". → Statutory home in Victoria: the Tripodi/Ahern formulation has been held to be reproduced in s 87(1)© Evidence Act 2008 (Vic) (R v Macraild (NSWCCA, 18 Dec 1997) at 9; R v Watt [2000] NSWCCA 37 at [8]), which extends beyond admissions to "directions, instructions, arrangements or utterances accompanying acts" in furtherance of the common purpose (R v Sukkar [2005] NSWCCA 54 at [39]). Note also s 57(2) Evidence Act 2008 — where relevance depends on a finding of common purpose (including an unlawful conspiracy), the court may use the evidence of the act itself in deciding whether the common purpose existed. → Kola applies Ahern to scope: where co-conspirators' acts depart from the agreed scope, Ahern directions may be needed on the permissible evidentiary use (Kola at [44]–[45]). At [44] the Court expressly declined to prefer either the Standen or the Le form of jury direction — "either approach may suffice" — so do not assert that one is required.

Case-law bank — the co-conspirators' rule

Case	Citation	The point on this element
Tripodi v The Queen	(1961) 104 CLR 1; [1961] HCA 22	The gateway and the "in furtherance" limitation. Acts and words of an alleged co-conspirator done or said out of the accused's presence are admissible against the accused only where there is reasonable evidence of pre-concert between them, independently of the content of the statement itself (at 7); and the material must be in furtherance of the common purpose, not narrative of past events.
Ahern v The Queen	(1988) 165 CLR 87; [1988] HCA 39	Confirms and refines Tripodi. At 100: the test is one for the trial judge; the independent evidence must be independent of the out-of-court acts and declarations; permissible use extends to proving the accused's own participation; and there is a discretion to limit use where admission would operate unfairly. Both rest on implied authority between conspirators.
DPP (Cth) v Kola	[2024] HCA 14 at [44]–[45]	Applies Ahern to scope questions: co-conspirators' out-of-court acts and statements are evidence of the nature and extent of the accused's participation; "[e]vidence of any such declaration is not excluded by the hearsay rule as it is not adduced to prove the truth of any fact asserted" — a non-hearsay purpose. Declines to prefer the Standen or Le direction.
s 87(1)© Evidence Act 2008 (Vic)	statute	The statutory reproduction of the Tripodi/Ahern rule in Victoria — cite it alongside the cases.
R v Watt	[2000] NSWCCA 37 at [8]	s 87(1)© reproduces the Tripodi/Ahern formulation; "reasonably open" ≈ reasonable evidence / a prima facie case.
R v Sukkar	[2005] NSWCCA 54 at [39]	s 87(1)© extends beyond admissions to directions, instructions, arrangements and utterances accompanying acts in furtherance of the common purpose.

6 · Penalties (s 321C) — usually EQUAL to the substantive offence

Situation (s 321C)	Maximum for the conspiracy
Substantive penalty fixed by law	Not exceeding that penalty — s 321C(1)(a)
Imprisonment, maximum not prescribed	Level 4 imprisonment (15 years) — s 321C(1)(b)
Murder or treason	Level 1 (life), or such other term as the court fixes — as the court determines — s 321C(1)(ba)
Any other Victorian offence with a prescribed maximum	Not exceeding that maximum, or the accumulated maxima — s 321C(1)© (subject to (a), (b), (ba) and (d))
Offence triable only in the Magistrates' Court	Level 6 (5 years) or the maximum prescribed for the offence — whichever is the greater — s 321C(1)(d)
Offence against a law in force only outside Victoria	If punishable by imprisonment: not exceeding that maximum — s 321C(2)(a). Otherwise: a level 6 fine (600 penalty units) — s 321C(2)(b)

Key penalty contrast — and a caution on the shorthand. Conspiracy generally carries the same maximum as the completed offence (s 321C(1)©), whereas attempt steps down under s 321P. But "attempt is one level below" is a rule of thumb, subject to five qualifications: (1) level 9 imprisonment (6 months) → level 10 fine (10 penalty units) — the attempt drops out of imprisonment altogether; (2) level 12 fine → level 12 fine — no reduction at the floor; (3) the s 321P(1)(a) table operates only where the penalty is expressed as a level; (4) where it is not, the attempt maximum is 60% of the maximum (s 321P(1)(b)), or level 6 where no maximum is fixed or prescribed (s 321P(1)©); and (5) attempted murder or treason is fixed directly at level 2 (25 years) by s 321P(1A). Through the imprisonment levels 1–8 the step-down is exactly one level; check the table rather than assuming it elsewhere.

Common law conspiracy to defraud SURVIVES

s 321F(1) abolishes common law conspiracy, but s 321F(2) expressly preserves conspiracy to cheat and defraud, and conspiracy to defraud, at common law. These remain chargeable, with DPP approval (s 321F(4)), and s 321D carries the s 321(2)–(3) and s 321B rules across to them. Do not treat all common law conspiracy as abolished — and note that Caldwell itself is a conspiracy-to-defraud case, and Peters supplies the dishonesty direction.

7 · Procedure, jurisdiction & extraterritoriality

• DPP approval (s 321(4)) — an indictment for conspiracy must not be filed without the approval of the DPP or an authorised delegate; the same applies to conspiracy to cheat and defraud / to defraud (s 321F(4)). Note s 321D does not carry this requirement to statutory conspiracies, so no DPP approval is needed for a DPCSA s 79 count.

• Indictable regardless (s 321(1)) — conspiracy is indictable whether or not the principal offence is; s 321C(1)(d) expressly contemplates a Magistrates'-Court-only object offence. Contrast attempt, confined by s 321M to indictable offences.

• Extraterritorial (s 321A) — reaches agreements to commit offences outside Victoria only on the cumulative s 321A(1) conditions (a party in Victoria when the agreement is made) or, where all parties are abroad, only where the conduct will necessarily involve a Victorian offence (s 321A(2)).

• Limitations (s 321E) — consent-to-prosecute requirements for the substantive offence apply; a committed but time-barred indictable substantive offence bars the conspiracy on that agreement; no double conviction for the same agreement.

• Drug conspiracies — DPCSA s 79 — s 79(1) covers conspiracy to commit an offence against the enumerated ss 71, 71AA, 71AB, 71AC, 71AD, 71A, 71B, 71E, 71F, 72, 72A, 72B, 72D or 73 → an indictable offence, same punishment, pecuniary penalties and forfeiture as the completed offence. s 79(2) covers ss 74, 75, 77 and 78 → "an offence against this Act". Confiscation overlay: a s 79 conspiracy to commit an offence against s 71, 71AA(2) or 72 is a serious drug offence for the Confiscation Act 1997, and on conviction the court must declare the person a serious drug offender under Sentencing Act 1991 s 89DI.

• No attempt to conspire — s 321R(2)(b) (statutory) and s 321F(3) (common law). The converse — conspiracy to attempt — has no statutory bar and rests on Aydin.

• Child-related analogues worth knowing — s 321GA (incitement of a child who may not be criminally responsible); s 324AB (complicity with such a child); Division 11A, ss 321LA–321LD (recruiting a child to engage in criminal activity, including s 321LC — the child need not engage in the conduct or be prosecuted or found guilty). Also ss 324A (other offenders need not be prosecuted or found guilty) and 324B (the offender's role need not be determined).

8 · Victoria vs Commonwealth — the key difference

	Victoria — Crimes Act 1958 s 321	Commonwealth — Criminal Code s 11.5
Overt act	Not required. No need to prove any step was taken to carry out the agreement.	Required. The accused or at least one other party must have committed an overt act pursuant to the agreement — s 11.5(2)©.
When complete	On the parties intentionally agreeing — even if never acted on.	Only once agreement, intention and an overt act are established.
Role of acts done	Evidentiary only — evidence of the agreement and the parties' intentions (Nirta; Bijkerk).	A matter the Crown must prove beyond reasonable doubt; at least one overt act, and the jury must be unanimous as to which (Lake; for Victoria, Ong at [25]).
Status of the s 11.5(2) matters	s 321(2) states the fault element directly.	Not elements of the s 11.5(1) offence — conditions of a finding of guilt (R v LK at [57]; settled in Kola at [27]).
Withdrawal	No defence — complete on agreement (Savvas; Caldwell); goes to sentence.	A defence if, before the commission of an overt act, the person withdrew and took all reasonable steps to prevent the offence — s 11.5(5) (not (4)).
Impossibility	No bar — s 321(3).	No bar — s 11.5(3)(a) (one of four limbs in s 11.5(3)).
Consent to prosecute	DPP approval to file the indictment — s 321(4).	DPP consent to commence proceedings — s 11.5(8); but arrest, charge and remand may all precede consent.
Spouses	s 339(2) immunity for conspiracy with a spouse alone.	No equivalent.
Authority	Nirta [1983] FCA 360; Bijkerk [2000] NSWCCA 122; Caldwell [2009] VSCA 41	s 11.5; R v LK [2010] HCA 17; Ansari [2010] HCA 18; Lake [2007] QCA 209; Kola [2024] HCA 14

9 · s 11.5 Criminal Code (Cth) — the subsections, correctly numbered

Provision	Requirement / effect
s 11.5(1)	Conspiring with another to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more — punishable as if the offence to which the conspiracy relates had been committed. (The fine threshold is in penalty units and moves with Crimes Act 1914 s 4AA — do not put a dollar figure on the sheet without checking.)
s 11.5(2)(a)	Agreement — the person must have entered into an agreement with one or more other persons.
s 11.5(2)(b)	Intention — the person and at least one other party must have intended that an offence would be committed pursuant to the agreement.
s 11.5(2)©	Overt act — the person or at least one other party must have committed an overt act pursuant to the agreement.
s 11.5(2A)	"Subsection (2) has effect subject to subsection (7A)." Easy to miss and load-bearing — this is what allows a special liability provision to override the s 11.5(2)(b) intention requirement. Inserted by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) Sch 1 item 8E.
s 11.5(3)	Guilt is possible even if (a) committing the offence is impossible; (b) the only other party is a body corporate; © each other party is a person not criminally responsible, or a person for whose benefit or protection the offence exists; or (d) subject to (4)(a), all other parties have been acquitted of the conspiracy. Note ©: non-responsibility of the other parties does NOT defeat the charge.
s 11.5(4)	No guilt if (a) all other parties have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal; or (b) the person is one for whose benefit or protection the offence exists. Withdrawal is not in s 11.5(4).
s 11.5(5)	Withdrawal — no guilt if, before the commission of an overt act pursuant to the agreement, the person (a) withdrew from the agreement and (b) took all reasonable steps to prevent the commission of the offence. Cumulative.
s 11.5(6)	The court may dismiss a charge of conspiracy "if it thinks that the interests of justice require it to do so".
s 11.5(7)	Any defences, procedures, limitations or qualifying provisions applying to the substantive offence apply also to the conspiracy.
s 11.5(7A)	Any special liability provisions that apply to an offence apply also to the conspiracy. The other half of the Kola ratio — this is how absolute liability for the commercial-quantity element (s 307.1(3)) is carried into the conspiracy. Inserted by the 2000 Act, Sch 1 item 8F.
s 11.5(8)	Proceedings must not be commenced without the consent of the DPP — however a person may be arrested for, charged with, or remanded in custody or on bail in connection with a conspiracy before consent is given.

Three subsection traps in s 11.5 — the numbering is routinely misstated. (1)

Impossibility is s 11.5(3)(a), not the whole of (3). (2) Withdrawal is s 11.5(5), not s 11.5(4)(b) — s 11.5(4) is about acquittal of all other parties and the benefit/protection exemption. (3) "No guilt if all other parties are not criminally responsible" is the opposite of the law: s 11.5(3)©(i) expressly permits conviction in that case. And do not omit s 11.5(2A) and s 11.5(7A) — a conspiracy sheet without them cannot answer a commercial-quantity drug conspiracy question. Highest subsection is (8): there is no s 11.5(9). Current to compilation No 174 (30 June 2026); no amendment to Part 2.4 since 2000.

The overt act — what it is and is not. It is not a physical element in the technical Chapter 2 sense. Per R v LK: s 11.5(2) "operates upon the common law concept of conspiracy but cannot be taken as defining elements of the offence" (at [96]); "the commission of an overt act was never an element of the offence of conspiracy at common law. It was a basis from which the criminal agreement could be inferred" (at [99]); it is included "as a screening device to exclude from 'the attention of the criminal law' conspiracies not manifested by any implementing conduct" (see [95]). It must nonetheless be proved beyond reasonable doubt (LK at [1]; and Kola records without criticism a trial aide-mémoire treating it as the fifth matter to be proved BRD). Kola at [27] then settles that no paragraph of s 11.5(2) is an element — which reframes both LK and Lake. On unanimity: Lake at [67] remains the leading authority, but its premise (that s 11.5(2)© is an "element") has since been contradicted; restate the conclusion on the footing that the overt act is a condition of guilt the Crown must prove, and so attracts unanimity. For a Victorian tribunal lead with Ong [2007] VSCA 206 at [25].

Case-law bank — Commonwealth conspiracy (s 11.5)

Case	Citation	The point on this element
R v LK	(2010) 241 CLR 177; [2010] HCA 17; (2010) 84 ALJR 395	HCA, 26 May 2010; French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; on appeal from the NSW CCA; Crown appeals dismissed. s 11.5(1) creates a single physical element and, no fault element being specified, s 5.6(1) supplies intention. Paragraphs (a) and (b) of s 11.5(2) explain what it is to "conspire" but are not elements; they are "a condition of a finding of guilt" (French CJ at [57]). Recklessness as to a circumstance of the substantive offence will not suffice. Pin cites: French CJ [57], [75], [78(2)], [95]–[99]; joint reasons [133], [136]–[137], [141]. Style: R v LK — the Court cites itself that way; "R v LK & RK" is not used.
Ansari v The Queen	(2010) 241 CLR 299; [2010] HCA 18	Decided the same day by the same bench; appeals dismissed. A s 11.5 conspiracy to commit a s 400.3(2) offence is not bad in law merely because the substantive fault element is recklessness, because of the extended definition in s 5.4(4). Worth pairing with LK. (Ansari does not discuss the overt act — do not enlist it for that.)
R v Lake; R v Carstein; R v Geerlings	[2007] QCA 209; (2007) 174 A Crim R 491	Qld CA; McMurdo P, Jerrard and Holmes JJA; delivered 22 June 2007; appeals dismissed. Holmes JA at [67]: "the status of the commission of an overt act as an ingredient of the offence convinces me that, as an essential element requiring proof, it also required unanimity." Two qualifications the sheet must carry: (1) the overt act need not be proved against each accused — only that one party committed it (at [62]); (2) its reasoning premise (that s 11.5(2)© is an element) has since been contradicted by LK at [57], [133], [137] and Kola at [27]. (The Queensland Judgments text at [67] reads "sub-ss 11.2(a)–©" — a slip for s 11.5(2)(a)–©; check the A Crim R report before quoting.)
DPP (Cth) v Kola	[2024] HCA 14	The current leading authority. See the SCOPE bank above for the propositions at [24], [26], [27], [29] and [44]–[45]. Note in particular [27] — no paragraph of s 11.5(2) is an element of the s 11.5(1) offence — and [44], declining to prefer the Standen or Le form of direction.
R v Viet Dung Ong	[2007] VSCA 206; (2007) 176 A Crim R 366 at [25]	Victorian authority affirming the overt-act unanimity requirement — lead with this before Lake in a Victorian court. (Pin cite secondary-sourced from the Qld Benchbook — verify.)
Nirta v The Queen	[1983] FCA 360; (1983) 79 FLR 190	Cite on a s 11.5 question only by way of contrast. "Complete on agreement, no overt act required" is the common law / Victorian s 321 position. The Commonwealth overt-act requirement was introduced into s 86(3) Crimes Act 1914 in 1994/95 — after Nirta — and now sits in s 11.5(2)©.
R v Bijkerk	[2000] NSWCCA 122; (2000) 111 A Crim R 443	NSW CCA (Grove, Sully and Simpson JJ, 14 April 2000) on a Commonwealth cocaine importation conspiracy; entrapment/Ridgeway. The offence is complete when the agreement is struck; evidence of subsequent overt acts is admissible to demonstrate the agreement, "but this does not mean that the progression of criminal activity subsequent to the agreement constitute essential ingredients of the offence charged". Attribution correction: it is not a Victorian decision and says nothing about s 321 — the JCV adopts it, with Nirta, as stating the general common law position that s 321 reflects. The observation may well be obiter, the appeal having turned on entrapment.

The forensic routine — jurisdiction first. Step 1: identify the jurisdiction of the principal offence. Victorian (e.g. armed robbery)? Complete on agreement; no overt act required; acts done are simply evidence; withdrawal is no defence; check DPP approval (s 321(4)) and whether the object is instead a DPCSA s 79 offence. Commonwealth (e.g. importing a commercial quantity of a border controlled drug)? The prosecution fails unless it identifies and proves beyond reasonable doubt a plainly apparent overt act by at least one party — and check DPP consent (s 11.5(8)), the withdrawal defence (s 11.5(5)), the s 11.5(6) dismissal power, and whether a special liability provision is carried in by s 11.5(7A) (the Kola route). Step 2: pin the scope of the agreement — that is where Caldwell particulars and Kola absolute-liability analysis both bite.

Complicity contrast — Rohan belongs here, not under s 321

The King v Rohan (a pseudonym) [2024] HCA 3 (HCA, 14 Feb 2024; Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ; unanimous in two judgments; on appeal from the VSCA; Crown appeal allowed, convictions restored) is a complicity case — s 323 is derivative liability requiring the principal offence to have been committed, whereas s 321 conspiracy is inchoate. Do not cite Rohan for s 321 fault. Its holding, stated correctly, distinguishes between limbs of s 323(1): s 323(1)(a) (intentionally assists, encourages or directs) still carries the Giorgianni fault element of intention informed by knowledge of every essential fact; s 323(1)© (agreement, arrangement or understanding) does not, because the agreement itself supplies the link in purpose — so knowledge of the victims' ages needed no proof. Add s 323(3) — a person may be involved by act or omission, without physical presence, and whether or not the person realises the facts constitute an offence. Stated flatly, without the (a)/© distinction, the proposition is wrong as a general statement of complicity fault: Giorgianni is confined, not overruled. The legitimate cross-over point is charge selection — where the offence was committed, the s 323(1)© route is fault-element-cheaper for the Crown than s 323(1)(a). Note also that the withdrawal position is s 324(2) plus the Note to s 324C — there is no s 324C(3) (s 324C has only two subsections; what looks like "(3)" is the heading of Subdivision (3) — Accessories).

10 · Master case-law index

Case	The point it stands for
Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8	A common agreement is essential; prove the conspiracy as alleged; single vs multiple conspiracies. Not authority that a narrower conspiracy may be found.
R v Caldwell [2009] VSCA 41; (2009) 22 VR 93	Particulars of parties and scope by the opening at the latest; multiple objectives; the Maria/Ongley pleading corollary; no need to name victim or method; withdrawal no defence.
Nirta v The Queen [1983] FCA 360; (1983) 79 FLR 190	Full Federal Court. Complete on agreement — no overt act; agreement inferable from conduct; unanimity where multiple acts contemplated.
R v Bijkerk [2000] NSWCCA 122; (2000) 111 A Crim R 443	NSW CCA on a Cth conspiracy: overt acts are evidentiary, not essential ingredients. Adopted by the JCV as the general position s 321 reflects.
R v Minuzzo & Williams [1984] VR 417 · R v Orton [1922] VLR 469	Existence and content of the agreement may be inferred from conduct; no need to prove when or where it was formed.
R v Moran & Mokbel [1999] 2 VR 87	Shared intention without agreement is not conspiracy; intention to form the agreement required at the time it was made.
R v Thomson (1965) 50 Cr App R 1	Trial ruling of Lawton J. Intention judged subjectively; an accused may appear to agree while privately not intending — the Crown must exclude it.
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7	Ratio: the dishonesty direction on conspiracy to defraud (Ghosh second limb rejected). Obiter at [55]–[59]: acting as if agreed is cogent but rebuttable evidence of intention to agree.
R v Trudgeon (1988) 39 A Crim R 252	NSW CCA. A supplier and the intended recipient are not conspirators to supply. Its "shared assumptions" use is unverified.
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29	Accessorial liability, not conspiracy: knowledge of all essential facts; neither negligence nor recklessness suffices. Analogy only; confined by Rohan to s 323(1)(a).
DPP v Johnson (Ruling No 7) [2007] VSC 579	Generalised intention insufficient — intent must attach to the particular agreed drug (s 321(2)(b)). First-instance ruling.
Yip Chiu-Cheung v The Queen [1995] 1 AC 111	Motive is irrelevant to intention; a conspiracy may be formed with an undercover officer who genuinely intends the offence. Corollary: feigned agreement → no conspiracy.
R v Anderson [1986] AC 27	States the opposite of the usual attribution: D need not intend the agreement be carried out or believe it capable of success, but must intend to play some part. Not Australian law — do not cite without flagging.
R v Viet Dung Ong [2007] VSCA 206; (2007) 176 A Crim R 366	An officer acting under superior orders still enters the agreement; also cited at [25] for Cth overt-act unanimity.
Rolls v The Queen; Sleiman v The Queen (2011) 34 VR 80; [2011] VSCA 401	No need for each party to actively participate — but mere acquiescence is insufficient; a joint arrangement is required.
Bui v The Queen; Hargrave v The Queen [2011] VSCA 404	The agreed conduct may involve committing the offence as a secondary party (contrast the English no-conspiracy-to-aid-and-abet position).
R v Coles [1984] 1 NSWLR 726 · R v Aston and Burnell (1987) 44 SASR 436	Conspiring with persons unknown is possible — but know of their existence and share a common design as to scope.
R v Darby (1982) 148 CLR 668; [1982] HCA 32	Inconsistent verdicts — a conviction may stand unless inconsistent with the acquittal; the Plummer consistency rule is not Australian law.
Mickelberg v The Queen (1987) 29 A Crim R 442	WA CCA. Extends Darby to separate trials and to a co-conspirator's conviction quashed on appeal. Not (1989) 167 CLR 259 (fresh evidence).
R v Aydin [2005] VSCA 87	No conspiracy to commit an "attempted" crime (rests on the construction of s 321, not s 321R), excepting attempting to pervert the course of justice.
R v Chrastny (No 1) [1991] 1 WLR 1381	English statutory spousal exemption (s 2(2)(a) Criminal Law Act 1977) defeated where the wife agreed with third parties. Analogical only — Victoria's provision is s 339.
R v McDonnell [1966] 1 QB 233 · R v Maher (1986) 83 FLR 332	Companies — a company with a single directing mind cannot conspire with that director; a director may conspire to defraud a company he later directs.
R v Barbouttis (1995) 37 NSWLR 256 · R v Sirat (1986) 83 Cr App R 41	Barbouttis (majority): factual impossibility fatal at NSW common law — the decision s 321(3) answers. Sirat: an imaginary crime is not a conspiracy.
Rex v Meyrick and Ribuffi (1929) 21 Cr App R 94 · R v Griffiths [1966] 1 QB 589	Meyrick — no direct communication or knowledge of identity required, provided a common purpose; on its facts hub-and-spoke, so do not label it "the chain case". Griffiths — no rim → no single conspiracy; convictions quashed, separate counts required.
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 · Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39	Co-conspirators' rule — the judge must first find reasonable evidence independent of the out-of-court acts and declarations; then acts and declarations in furtherance prove the agreement and the accused's participation. Reproduced in Evidence Act 2008 (Vic) s 87(1)©.
R v LK (2010) 241 CLR 177; [2010] HCA 17 · Ansari (2010) 241 CLR 299; [2010] HCA 18	Cth — the s 11.5(2) matters are conditions of a finding of guilt, not elements; recklessness insufficient. Ansari: a conspiracy charge is not bad in law where the object offence's fault element is recklessness (s 5.4(4)).
R v Lake; R v Carstein; R v Geerlings [2007] QCA 209; (2007) 174 A Crim R 491	Cth — the overt act must be proved BRD and the jury be unanimous as to a particular one; but it need not be proved against each accused, and the "element" premise is now contradicted.
DPP (Cth) v Kola [2024] HCA 14	Cth — absolute-liability elements judged by the objective scope of the agreement (the Crown must still prove that scope); unilateral escalation does not bind; co-conspirators' acts/statements prove the agreement and participation; no paragraph of s 11.5(2) is an element ([27]).
The King v Rohan (a pseudonym) [2024] HCA 3	Complicity, not conspiracy. s 323(1)© does not require Giorgianni knowledge of essential facts; s 323(1)(a) still does.
Savvas v The Queen (1995) 183 CLR 1 · Woss v Jacobsen (1985) 11 FCR 243	Withdrawal is not a defence — the offence is complete on formation of the agreement.

Currency watch

• 26 April 2026 — Crimes Act 1958 (Vic) authorised Version 321, the current consolidation. AustLII matches; no later authorised version exists.

• 1 July 2026 — Drugs, Poisons and Controlled Substances Act 1981 (Vic) Version 145 operative (s 79 conspiracy).

• 30 June 2026 — Criminal Code Act 1995 (Cth) Compilation No 174. No amendment to Part 2.4 (extensions of criminal liability) since 2000; s 11.5(2A) and (7A) date from the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) Sch 1 items 8E–8F.

• 30 September 2025 — s 321AA commenced (inserted by Youth Justice Act 2024 (Vic) s 797): guilt survives where the other party, or all other parties, is a child presumed unable to commit the offence. Read with Youth Justice Act 2024 s 10 (under 12 — conclusive) and s 11 (12–13 — rebutted only on proof beyond reasonable doubt that the child knew the conduct was seriously wrong in a moral sense; s 11(3) — not inferable from the conduct itself). Cognate provisions: s 321GA (incitement) and s 324AB (complicity).

• 17 April 2024 — DPP (Cth) v Kola [2024] HCA 14 — the current High Court authority on absolute-liability elements in Commonwealth conspiracy, on co-conspirators' evidence, and (at [27]) on the status of the s 11.5(2) matters.

• 14 February 2024 — The King v Rohan (a pseudonym) [2024] HCA 3 — s 323(1)© complicity fault; relevant to conspiracy only as a charge-selection contrast.

• 1 November 2014 — complicity codified (ss 323–324C, inserted by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) No 63/2014 s 6); common law aiding/abetting/counselling/procuring, acting in concert, JCE and common purpose abolished (s 324C). The same Act's s 3(1) repealed s 4 on the same date — which is why the s 339(1) cross-reference to "any offence specified in section 4" is now dead.

• Standing — s 321F: common law conspiracy abolished except conspiracy to cheat and defraud / conspiracy to defraud, which survive.