What is a ‘Conspiracy’ in the Commonwealth Criminal Law?

A Sydney man accused of serious drug offences is on the run from the police after allegedly disabling his ankle monitor while on bail.

Northern Beaches restauranter Mostafa Baluch is alleged to have financed a major cocaine importation syndicate.

He was arrested in June 2021 over allegations he conspired to import 900 kilograms of the drug from Ecuador.

He was charged with a series of offences, including conspiracy to import a commercial quantity of a borde controlled drugs, as well as three counts of importation over three smaller amounts  of cocaine allegedly imported through air cargo.

According to police, Mr Baluch’s arrest was the result of Operation Ironside, a global sting which resulting in more than 800 arrests worldwide.

The ANOM app

Police developed a phone app, known as ANOM, which worked in a similar way to mainstream apps like Snapchat and WhatsApp. They claimed the app ensured anonymity, marketing it to members of criminal syndicates who ‘took the bait’ and allegedly uploaded and distributed the technology amongst themselves via customised phones.

The app was secretly managed by law enforcement authorities, and those who were tricked into believing their communications could not be monitored or traced were instead tracked in ‘real time’.

Police say the communications included the arranging of drug importation, drug supply, money laundering and even murder plots.

Bail granted

Mr Baluch was refused bail at the police station and the matter then came before a

Sydney Local Court, where it was granted on strict conditions including the deposit of a $4 million security, electronic monitoring and daily reporting to Mona Vale police station.

Breach of bail in New South Wales

If  a person is alleged to have failed to comply with a condition of bail, police have some discretion regarding whether to overlook the breach or charge with person with breach of bail.

In the event of the latter, the person will be arrested and brought before a court, which can choose to:

• release the person on the original bail conditions ,
• change or vary the original bail conditions, or
• revoke or refuse bail.

If the bail is revoked, the person will then be remanded in custody.

Importing a commercial quantity of border controlled drugs

Importing or Exporting a Commercial Quantity of a Border Controlled Drug is an offence under Section 307.1 of the Criminal Code Act 1995 which carries a maximum penalty of life in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You intentionally imported or exported a substance,
2. The substance was a commercial quantity of a border controlled drug or plant, and
3. You knew or were reckless as to whether the substance was a border controlled drug or plant.

‘Import’ includes to bring into Australia, and to deal with the substance in connection with its importation.

‘Export’ means to take from Australia.

You were ‘reckless’ if you were aware it was likely that the substance was a border controlled drug or plant but went ahead with your actions regardless.

Examples of ‘commercial quantities’ include:

• At least 500 grams of MDMA (or ‘ecstacy’),
• At least 750 grams of amphetamines,
• At least 1.5 kgs of heroin,
• At least 2 kgs of cocaine, and
• At least 100 kgs of cannabis leaf.

A defence to the charge is ‘duress’, which means:

1. Your actions were due to a threat of death or serious injury to you and/or a member of your family,
2. There was no reasonable way to render the threat ineffective, and
3. Your conduct was a reasonable response to the threat.

What is a conspiracy under the Commonwealth criminal law?

Section 11.5 of the Criminal Code Act 1995 (Cth) sets out the law relating to conspiring to commit offences under the Act, including drug importation.

The section makes clear that

“[a] person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.”

It states that a person can only be found guilty of a conspiracy, if:

1. He or she entered into an agreement with one or more other persons,
2. At least one other party to the agreement intended that an offence would be committed pursuant to the agreement, and
3. At least one other party to the agreement committed an overt act pursuant to the agreement.

The section provides that a person may be found guilty of conspiracy to commit an offence even if:

1. Committing the offence was impossible,
2. The only other party to the agreement is a body corporate, or
3. Each other party to the agreement is at least one of the following:
   • a person who is not criminally responsible;
   • a person for whose benefit or protection the offence exists; or
4. All other parties to the agreement have been acquitted of the conspiracy.

The section further provides that a person cannot be found guilty of conspiracy to commit an offence if:

1. All other parties to the agreement were acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal, or
2. He or she is a person for whose benefit or protection the offence exists.

Additionally, the section states that  a person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:

1. Withdrew from the agreement, and
2. Took all reasonable steps to prevent the commission of the offence.

The section also contains the unusual provision for a court to dismiss a charge of conspiracy if the court finds that this is in the interests of justice.

All defences, procedures, limitations and qualifying provisions that apply to the substantive offence apply also to the offence of conspiracy to commit that offence.

Due to these provisions, prosecuting bodies such as the Office of the Commonwealth Director of Public Prosecutions (OCDPP) are often reluctant to prosecute conspiracy offences.