In relation to Commonwealth offences, the law of conspiracy is governed by s 11.5 of the Criminal Code.
The Criminal Code imports the common law concept of conspiracy, subject to explicit statutory modification (R v LK & RK (2010) 241 CLR 177 at  per French CJ; Ansari v R (2010) 241 CLR 299 at ).
Elements of Conspiracy to Commit an Offence
The elements of conspiracy are found in Criminal Code s11.5(1). There is a single physical element and a default fault element of intention (R v LK & RK (2010) 241 CLR 177 at -, ; R (Cth) v Baladjam (No 4)  NSWSC 726 at ; R v Ansari (2007) 70 NSWLR 89 at ).
The prosecution must therefore prove:
The accused conspired with another person to commit an offence punishable by imprisonment for more than 12 months or a fine of 200 penalty units or more; and
The accused intended to conspire with that person in the manner alleged (Criminal Code s11.1(1); R v LK & RK (2010) 241 CLR 177 at -).
In addition to the elements, there are three further matters which are “conditions of a finding of guilt” (R v LK & RK (2010) 241 CLR 177 at ). These are stated in Criminal Code s11.5(2):
The person must have entered into an agreement with one or more other persons; and
The person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
The person or at least one other party to the agreement must have committed an overt act pursuant to the agreement (Criminal Code s11.5(2)).
The first two of these matters explain the meaning of “conspired”, while the overt act is a further matter that must be proved to the criminal standard, but has no associated fault element (R v LK & RK (2010) 241 CLR 177 at ; Quaid v R  WASCA 141 at  per Buss JA).
First element: Conspiracy to commit a non-trivial offence
The first element the prosecution must prove is that the accused conspired 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 (Criminal Code s11.5(1); R v Ansari (2007) 70 NSWLR 89 at ; R v LK & RK (2010) 241 CLR 177 at -).
This requires proof of agreement and the subject matter of the agreement (R v Ansari (2007) 70 NSWLR 89 at ; Standen v R  NSWCCA 211 at -).
Formation of agreement
The prosecution must establish that there was a common agreement between the parties to the conspiracy (Gerakiteys v R (1984) 153 CLR 317; R v Coles  1 NSWLR 726).
Agreement is an essential element of conspiracy. People who pursue a common intention to commit a crime will not be guilty of conspiracy if there is no agreement between them (R v Barbouttis (1995) 37 NSWLR 256; R v Moran & Mokbel  2 VR 87).
It is not sufficient for the parties to have merely shared assumptions about future events. The prosecution must prove that the parties formed an agreement to work towards the principal offence (R v Jones  NSWCCA 186; R v Trudgeon (1988) 39 A Crim R 252; R v Moran & Mokbel  2 VR 87).
The date of entry into the conspiracy is generally not an essential fact. Unless there would be unfairness to an accused, a jury can find that the accused joined the conspiracy later than the date alleged by the prosecution (see Damoun v R  NSWCCA 109 at . See also Nirta v R (1983) 79 FLR 190; R v Minuzzo and Williams  VR 417; R v Orton  VLR 469; Gerakiteys v R (1984) 153 CLR 317).
The parties do not need to have entered a formal or written agreement (Nirta v R (1983) 79 FLR 190).
The agreement must have been communicated to the other conspirators (R v Scott (1978) 68 Cr App R 164).
An agreement is a state of affairs for the purpose of the Code. A conspiracy exists and continues to exist while the agreement remains in existence. For this reason, the provisions of the Code can apply to criminalise pre-existing agreements, which remain in existence after amendment to the conspiracy provisions of the Code (Agius v R (2013) 248 CLR 601 at , ).
Thus, each day a party adheres to the agreement is another day on which the offence of conspiracy is committed (Agius v R (2013) 248 CLR 601 at ).
The focus of the offence is therefore on the existence of an agreement, rather than the entry into an agreement (Agius v R (2013) 248 CLR 601 at  per Gageler J).
Section 11.5(2)(b) of the Criminal Code means that the offence is not committed if the other party or parties were only pretending to make an agreement with no intention of carrying it out. This replicates the common law position (R v Ansari (2007) 70 NSWLR 89 at . See also Peters v R (1998) 192 CLR 493 at ).
Subject matter of agreement
The prosecution must prove that that the conspiracy was in the terms alleged in the indictment. The jury cannot convict the accused of a conspiracy that is different from the one alleged (Gerakiteys v R (1984) 153 CLR 317; R v Coles  1 NSWLR 726; R v Ongley (1940) 57 WN (NSW) 116; DPP v Johnson & Ors (Ruling No. 7)  VSC 579; R v Caldwell (2009) 22 VR 93).
The prosecution must prove that the course of conduct agreed upon would involve the commission of the principal offence, rather than some different offence, or an unspecified or undecided offence (R v McCaul and Palmer  2 VR 419; R v Thomas CCA Vic 29/09/1980; R v Moran & Mokbel  2 VR 87).
Where the prosecution is based on a conspiracy to traffick in a specified drug, but the evidence establishes that the agreement related to a different drug, the conspiracy will not have been proven (DPP v Johnson & Ors (Ruling No. 7)  VSC 579).
Where the evidence only establishes an agreement to commit an offence of a certain class, the jury will often be unable to exclude the possibility that the agreement was to commit a different offence to the one charged which is also within the same general class (R v McCaul and Palmer  2 VR 419; R v Thomas CCA Vic 29/09/1980).
The agreement does not need to have specified who the particular victim would be, or how the offence would be carried out. There merely needs to have been an agreement to commit the principal offence (R v Gill and Henry (1818) 2 B and Ald 204; R v Caldwell (2009) 22 VR 93).
Each accused is entitled to particulars of the people with whom it is alleged he or she conspired, and particulars of the scope of the conspiracy alleged (R v Caldwell (2009) 22 VR 93).
The prosecution must provide those particulars in the course of the opening address, at the very latest. They 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 (R v Caldwell (2009) 22 VR 93).
It is therefore important to determine:
The precise scope of any conspiracies alleged; and
Whether it is alleged that there was a single conspiracy between all of the relevant parties, or a set of different conspiracies (Gerakiteys v R (1984) 153 CLR 317).
Scope of the Conspiracy
Where the charge alleges an agreement to commit two or more specific offences, each offence probably constitutes an essential element of the conspiracy. This means that, in such cases, the prosecution will need to prove that the conspiracy extended to all instances of the offence for the charge to be made out (R v Caldwell (2009) 22 VR 93 at . See also R v Roberts  1 Cr App R 441).
Similarly, where a charge of conspiracy to defraud alleges an agreement to achieve two or more distinct objectives, each of the objectives is an essential element which must be proved. The charge will not be made out by proof of just one of those objectives (R v Caldwell (2009) 22 VR 93 at ).
Where particular victims are named in the indictment, the judge will need to determine whether the prosecution is alleging that there was a conspiracy to commit an offence against those specific people, or whether those people were named simply to supply sufficient particulars of the conspiracy alleged:
If it alleged that the conspiracy was to commit an offence against those specific people, the prosecution will need to prove that there was an agreement to commit the relevant offence against all of the named parties (see, e.g., R v Maria  St R Qd 512, cited in R v Caldwell (2009) 22 VR 93).
If it is alleged that the conspiracy was simply to commit the relevant offence, with the names supplied to provide particulars of the conspiracy alleged, and to mark out its boundaries, the prosecution will not need to prove that the accused agreed to commit the offence against all of the named parties. Even if the accused did not intend to commit an offence against one or more of the named parties (or did not know the identity of all of the parties involved), the conspiracy will be established if they agreed to commit the relevant offence (R v Caldwell (2009) 22 VR 93. See also R v Ongley (1940) 57 WN (NSW) 116; R v Deakin (1972) 56 Cr App R 841).
Single Conspiracy or Multiple Conspiracies
Where a single conspiracy is charged, the prosecution must prove that all of the parties to the agreement were aware of the scope of that agreement, and agreed to pursue the same offence (Gerakiteys v R (1984) 153 CLR 317; R v Griffiths  1 QB 589).
Where the scope of the parties’ agreement varies, the prosecution must instead allege multiple different conspiracies. The nature of the conspiracies alleged will depend on the circumstances:
In some cases, there may be a series of related conspiracies, which all emanate from a central figure. The scope of these related conspiracies may vary, based on the knowledge and belief of the parties (Gerakiteys v R (1984) 153 CLR 317; R v Griffiths  1 QB 589).
In other cases, the conspiracies may operate like a chain, with each participant only aware of the adjacent parties and their particular role in the conspiracy (R v Meyrick (1930) 21 Cr App R 94; R v Griffiths  1 QB 589).
When a new party joins an existing conspiracy, an issue arises as to whether there is still a single (but expanded) conspiracy, or whether there are now two conspiracies. The answer depends upon the new party’s knowledge and intentions:
If the new party is fully aware of the scope of the existing conspiracy, and agrees that the principal offence should be committed, there will be just one conspiracy.
If the new party is only aware of, and agrees to, part of the original conspiracy, there will be two conspiracies: a broad conspiracy between the original conspirators, and a narrower conspiracy which includes the new party (Gerakiteys v R (1984) 153 CLR 317; O’Connell v R (1844) 11 Cl & Fin 155).
While the jury cannot convict the accused of a conspiracy that is different from the one alleged by the prosecution, they can convict him/her of a conspiracy that is narrower – provided that it is not substantially different to the allegation s/he was required to meet (Gerakiteys v R (1984) 153 CLR 317).
Intention that offence be committed
The requirement that the accused must have “conspired with another person to commit an offence” does not mean that the parties to the conspiracy must intend to personally commit the intended offence. A charge of conspiracy will remain available where the accused conspires with another person that a third party who is not part of the conspiracy will commit the intended offence (Ansari (2007) 70 NSWLR 89 at ; R (Cth) v Baladjam (No 4)  NSWSC 726 at -).
Conspiracy and knowledge of essential facts
A person cannot form an agreement to commit an offence unless he or she knows or believes in the existence of facts which would make the agreed conduct an offence (Quaid v R  WASCA 141 at  per Buss JA; R v LK & RK (2010) 241 CLR 177 at  per French CJ and  per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The prosecution must prove that the accused and at least one other party to the conspiracy held the knowledge of the essential facts at the same time (Standen v R  NSWCCA 211 at ).
However, because conspiracy is a continuing offence, it is not necessary to prove that this shared knowledge was held on a precise date. Rather, the prosecution can prove that the accused and at least one other person were participants in the agreement to commit an offence in the period alleged in the indictment and that they held the necessary intention, knowledge or belief in at the same time (Standen v R  NSWCCA 211 at , ).
The accused must have had more than a mere suspicion that the relevant facts or circumstances would exist. S/he must have had actual knowledge or personal belief in the existence of any facts necessary to make the proposed conduct criminal (see, e.g., R v Barbouttis & Ors (1995) 37 NSWLR 256; R v Schipanski (1989) 17 NSWLR 618; Pereira v DPP (1989) 82 ALR 217; Bennett v R (1998) 144 FLR 311).
It is not necessary to explain this requirement in every case. It only needs to be addressed if it is an issue in the case (see, e.g., R v Massie  1 VR 542).
The accused also does not need to have known the identity of the other parties to the agreement. The identity of co-conspirators is not an element of the offence. A person may be convicted of conspiring with a person or persons unknown (R v Coles  1 NSWLR 726; Gerakiteys v R (1984) 153 CLR 317; R v Howes  2 SASR 293; Aston & Burnell v R (1987) 44 SASR 436; Ex parte Coffey: Re Evans  1 NSWLR 434).
While the accused does not need to have known the identity of his or her co-conspirators, s/he must have known of their existence, been in agreement with them about the scope of the conspiracy, and shared a common design or purpose (Aston & Burnell v R (1987) 44 SASR 436; R v Coles  1 NSWLR 726; Ex parte Coffey: Re Evans  1 NSWLR 434).
Conspiracy and intention to commit agreed offence
As part of proof of the first element, the prosecution must show that the accused and at least one other party to the agreement intended that an offence would be committed pursuant to the agreement (Criminal Code s11.5(2)(b)). This is subject to the operation of any special liability provision (Criminal Code s11.5(7A)).
This rule applies even where the substantive offence includes fault elements short of intention, such as recklessness (see Ansari v R (2007) 70 NSWLR 89 at ).
The offence of conspiracy is not committed where the parties are reckless as to whether an offence would be committed as a result of the agreement (R v Ansari (2007) 70 NSWLR 89 at ).
Intention that the offence be committed requires proof that the accused and at least one other person intended that acts be performed which, if carried out in accordance with the agreement, would amount to commission of the offence (Ansari v R (2010) 241 CLR 299 at ).
While the majority of the High Court in Ansari explicitly rejected the suggestion that the accused and another party to the conspiracy must intend that each physical element and its associated fault element would exist, this conclusion was reached in the context of a case where one of the fault elements was recklessness and the conspiracy involved a party to the conspiracy committing the offence (see also Papadimitriou v R  WASCA 140 at ).
Later cases have shown that where a party to the conspiracy would commit the completed offence, the appropriate direction is that the prosecution must prove that the accused and another party to the conspiracy intended that all the physical elements of the completed offence would exist (see Papadimitriou v R  WASCA 140 at ; Standen v R  NSWCCA 211 at ).
In contrast, where the agreement involves the physical commission of the offence by a third party who is not party to the agreement, French CJ and the New South Wales Court of Criminal Appeal have held that the conspiracy may be proved by showing that the accused intended the third party to act with the state of mind necessary for the commission of the offence, even if that state of mind is one of recklessness (see R v LK & RK (2010) 241 CLR 177 at  per French CJ; Ansari v R (2010) 241 CLR 299 at , ; R v Ansari (2007) 70 NSWLR 89 at -. See also Quaid v R  WASCA 141 at  per Hall J).
Any special liability provision that applies to an offence also applies to a conspiracy to commit that offence (Criminal Code s11.5(7A)).
‘Special liability provision’ is defined as:
A provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or
A provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or
A provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing (Criminal Code Dictionary).
Fault elements such as knowledge, recklessness and negligence are not ‘special liability provisions’.
In addition, strict liability, as defined in Criminal Code s6.1, does not fit within the definition of special liability provision. Therefore, where strict liability applies, the common law rule that an accused must know the essential facts for an offence of conspiracy will continue to apply, and the prosecution must prove awareness of those facts (R v Ansari (2007) 70 NSWLR 89 at ).
An example of how a special liability provision operates can be seen in a conspiracy to import a commercial quantity of a border controlled drug. In such a case, the combined effect of Criminal Code ss11.5(7A) and 307.1(3) is that absolute liability applies in relation to the quantity (Le v R  VSCA 100; Quaid v R  WASCA 141 at  per Buss JA). This means that in a charge for conspiracy to import a commercial quantity of a border controlled drug, the prosecution does not need to prove that the accused intended to import a commercial quantity. An intention to import a border controlled drug is sufficient.
Where an offence involves circumstances of aggravation which are not elements of the offence, proof of conspiracy does not involve proof of those circumstances of aggravation, or agreement as to those circumstances (Keung v R  NSWCCA 193 at ).
Second element: Intention to conspire
The second element is that the accused intended to conspire with another person to commit an offence (Criminal Code s11.5(1)).
This requires proof that the accused meant to conspire, in accordance with the first element (Criminal Code s5.2).
Evidence that the accused had acted as if s/he had made an agreement may provide evidence of an intention to form an agreement, but is not conclusive. It can be rebutted by other evidence (Peters v R (1998) 192 CLR 493; R v Thomson (1965) 50 Cr App R 1; R v O’Brien  SCR 666).
Addition matter for proof: Overt act
To prove a conspiracy to commit an offence, the prosecution must prove that a party to the conspiracy committed an overt act pursuant to the agreement (Criminal Code s11.5(2)(c)).
While this is not an element of the offence, it is a requirement for conviction. It must be proved to the criminal standard of beyond reasonable doubt (R v LK & RK (2010) 241 CLR 177 at ).
As an essential matter for proof by the prosecution, the jury must be unanimous about the existence of a particular overt act (R v Lake  QCA 209 at ).
The Code does not define the term ‘overt act’. According to the ordinary meaning of the phrase, it refers to a plainly apparent act. Thus, the prosecution must prove that a party to the alleged conspiracy did something which it is plainly apparent as having been committed as part of the agreement.
In order for an act to qualify, it must be carried out with the intention of advancing the conspiracy (DPP v Fattal  VSCA 276 at ).
The overt act may be committed by the accused, or any other party to the conspiracy. It is not necessary to prove that each party commits an overt act to crystalise his or her involvement in a conspiracy (R v Lake  QCA 209 at , ).
Similarly, it is not necessary that each party to the conspiracy planned to actively participate in the commission of the planned offence (Rolls v R; Sleiman v R (2011) 34 VR 80).
Conspiracy and Impossibility
As under Victorian law, a person may be found guilty of conspiracy to commit an offence even if facts exist which made it impossible to commit the contemplated offence (Criminal Code s11.5(3)(a)).
However, it is likely that, as at common law, the agreement must be to commit a real offence, not an imaginary one (see, e.g., R v Sirat (1986) 83 Cr App R 41).
Under Criminal Code s 11.5(4)(a), a person cannot be found guilty of conspiracy to commit an offence if:
all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with their acquittal.
Person for whose benefit or protection the offence exists
Criminal Code s11.5(4)(b) provides that a person cannot be found guilty of conspiracy to commit an offence if:
He or she is a person for whose benefit or protection the offence exists.
A similar provision exists in Crimes Act 1958 s324(3) for statutory complicity. In relation to Victorian law, this provision ensures that a person under the age of 16 cannot be found guilty of being a party to the offence of sexual penetration of him/herself (see, e.g., R v Whitehouse  QB 868).
The Criminal Code provides a defence of withdrawal. This defence is available where:
Before the commission of an overt act pursuant to the agreement;
The person withdrew from the agreement; and
Took all reasonable steps to prevent the commission of the offence (Criminal Code 11.5(5)).
The requirement to take all reasonable steps to prevent commission of the offence invites attempt to what steps were available and whether those steps were reasonable. In some cases, it may require ceasing association with the co-conspirators and may also require informing the police, at least anonymously (see Visser v R  VSCA 168 at ).
If there are no reasonable steps available, then no steps are required (Miller v Miller (2011) 242 CLR 446 at ).
This differs from the common law position, where the offence is complete when the agreement is formed and so there is no opportunity for withdrawal (see Woss v Jacobsen (1985) 11 FCR 243; Savvas v R (1995) 183 CLR 1; R v Caldwell (2009) 22 VR 93).
However, in relation to joint activity, both the common law and statute recognises a defence of withdrawal where a person communicates the withdrawal and takes all reasonable steps to undo the effect of his or her previous assistance or encouragement. See Statutory Complicity for more information on this form of withdrawal.
Differences between Commonwealth conspiracy and common law conspiracy
The common law principles regarding conspiracy inform the meaning of s 11.5 of the Criminal Code, except as expressly modified by the text of the Code (Agius v R (2013) 248 CLR 601 at ; R v LK & RK (2010) 241 CLR 177 at , , ).
There are five key differences between the Code and the common law (see Keung v R  NSWCCA 193 at ; Dickson v R (2010) 241 CLR 491; R v Ansari (2007) 70 NSWLR 89 at , -).
First, the Code contains a requirement that the offence in question be punishable by imprisonment of at least 12 months or a fine of 200 penalty units. In contrast, the common law offence of conspiracy is available in relation to all offences.
Second, the Code does not apply to an agreement to commit a lawful act by unlawful means.
Third, the parties must have performed an overt act in furtherance of the conspiracy (Criminal Code s11.5(2)(c)).
Fourth, a person may escape liability under the Code if he or she withdraws from the conspiracy before the commission of any overt acts (Criminal Code s11.5(5)).
Fifth, as a result of subsection (7A), the accused does not need to be aware of any facts of the completed offence for which absolute liability applies (Criminal Code s11.5(7A)).
As a result of these differences, there is a direct inconsistency between the conspiracy provisions in the Criminal Code and conspiracy provisions under the Crimes Act 1958. As a result, where the conspiracy involves a conspiracy to engage in conduct which is covered by both Commonwealth and State law, section 109 of the Australian Constitution operates to render State law inoperative to the extent of the inconsistency (Dickson v R (2010) 241 CLR 491).
One example of this inconsistency is where a person is charged with conspiracy to steal goods. If the goods are Commonwealth property, then the prosecution must use a charge of conspiracy under the Criminal Code and cannot charge a person with conspiracy to commit theft under the Crimes Act 1958 (Dickson v R (2010) 241 CLR 491).
Dismissal of conspiracy charges in the interests of justice
Section 11.5(6) of the Criminal Code gives judges a broad discretion to dismiss a charge of conspiracy if ‘it thinks that the interest of justice require it to do so’. This matches the provision that previously existed in Crimes Act 1914 (Cth) s86(7).
This provision gives statutory recognition to frequently expressed judicial concerns about the appropriateness of bringing conspiracy charges in certain circumstances, especially where a substantive offence has been committed and there is a sufficient and effective charge available (R (Cth) v Baladjam (No 4)  NSWSC 726 at , . See also R v Hoar (1981) 148 CLR 32).
In general, selection of charges is a matter for the prosecution and the exercise of prosecutorial discretion is unreviewable. While s11.5(6) is an incursion into that general state of affairs, the court must keep the general rule in mind when exercising the power to dismiss conspiracy charges under the Code (R v Elomar  NSWCCA 303 at ).
The provision provides a broad judicial discretion. While no list of considerations can be complete, relevant matters may include:
The likely complexity of the trial;
The presence of evidentiary difficulties;
The risk in a joint trial that an accused may be prejudiced by the admission of evidence admissible only against certain other accused;
Whether there may be sentencing difficulties due to the conspiracy charge;
Whether other potential sources of injustice might result from proceeding with a conspiracy charge;
The need to respect prosecutorial discretion in the laying of charges;
Whether proceeding with a conspiracy charge would constitute an abuse of process, such as where conspiracy is charged following or parallel to charges for the completed offence;
Whether there is an overlap of elements of the substantive offence and the alleged overt acts of the conspiracy;
Whether severance is a more appropriate remedy than dismissal;
Whether a substantive charge would properly capture the scope of the accused’s conduct, or whether a conspiracy charge more appropriately captures the planned conduct for multiple separate criminal acts as part of an ongoing criminal organisation (R v Dowding  VSC 439 at ; R (Cth) v Baladjam (No 4)  NSWSC 726 at , ; R v Hoar (1981) 148 CLR 32; Shepherd v R (1988) 37 A Crim R 303 at 309-310; Standen v DPP (Cth)  NSWCCA 187).
In exercising this discretion, the judge may also need to consider Criminal Procedure Act 2009 s195, which provides that a charge for a conspiracy to commit an offence and the commission of that offence must be tried separately, unless the court considers that it would be in the interests of justice for the charges to be tried together.
When considering the operation of Criminal Procedure Act 2009 s195, the court must look at the details of the allegations, and not merely whether the conspiracy involves an offence against the same provision as a substantive charge on the same indictment (R v Jacobson (Ruling No 2)  VSC 368 at ).
Requirement for DPP consent
Proceedings for an offence of conspiracy under the Criminal Code must not be commenced without the consent of the Director of Public Prosecutions (Criminal Code s11.5(8)).
A Director’s consent to prosecute may be in general term. However, if the consent refers to a precise offence, it will not authorise a prosecution for different conduct (R v Morrison  QSC 446; Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 48).
Where there are differences between the indictment and the consent, it will be a question for the court whether those differences alter the substance of the allegation so that the offence charged is not the one which the Director approved. This is determined by examining the nature of the charges, rather than the proposed evidence (see Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 48; Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36).
For example, the indictment may identify fewer named co-conspirators than the Director’s consent. Unless the absence of those named co-conspirators alters the nature of the conspiracy alleged, such a change will not produce a conclusion that the proceeding was commenced without consent (see R v Morrison  QSC 446 at 
The Code contains an exception which allows a person to be arrested, charged, remanded or bailed for an offence of conspiracy before the Director gives the necessary consent (Criminal Code s11.5(8)).
This exception likely modifies the general rule that applies in Victorian criminal procedure that a proceeding commences when the charge-sheet is filed (Criminal Procedure Act 2009 s5. See also Judiciary Act 1903 ss79, 80).
While it is not entirely certain, it appears likely that the common law on commencement of proceedings applies and so the consent must be obtained no later than the arraignment of the accused on the trial indictment (see R v B (2008) 76 NSWLR 533 at , -; R v Evans  VR 717. See also Judiciary Act 1903 s80).
Defences, procedures, limitations and qualifying provisions
Criminal Code s11.5(7) provides that:
Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
This applies to matters which are extrinsic to the elements of the offence, rather than the requirement that the prosecution prove all elements of the offence (R v Onuorah (2009) 76 NSWLR 1 at ).
Complicity, Duplicity and Multiple Acts
As at common law, a charge of conspiracy under s 11.5 of the Criminal Code may allege a conspiracy to engage in multiple acts of criminality (R (Cth) v Baladjam (No 4)  NSWSC 726 at ; R v B (2008) 76 NSWLR 533 at ).
However, where the alleged conspiracy does not involve offences of a similar character, the judge may need to intervene to preserve the fairness of the trial process (R (Cth) v Baladjam (No 4)  NSWSC 726 at ). See also ‘Dismissal of conspiracy charges in the interests of justice’ above.
Where an agreement contemplated multiple criminal acts, the jury must unanimously find that it included an agreement to commit the principal offence which is charged in the indictment (Nirta v R (1983) 79 FLR 190).
In addition, section 400.12 of the Criminal Code allows the prosecution to aggregate multiple discrete acts of money laundering into a single charge. This provision is equally applicable to a charge of conspiracy to commit an offence to which s 400.12 applies (Tan v R (2011) 35 VR 109 at ).
 This differs from contract law, where such a claim is not permitted.