The Queen v. O'Brien

The Queen v. O'Brien
Collection
Supreme Court Judgments
Date
1954-10-21
Report
[1954] SCR 666
Judges
Taschereau, Robert; Rand, Ivan Cleveland; Estey, James Wilfred; Locke, Charles Holland; Fauteux, Joseph Honoré Gérald
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
Supreme Court of Canada
The Queen v. O'Brien, [1954] S.C.R. 666
Date: 1954-10-21
Her Majesty The Queen Appellant;
and
Daniel O'brien Respondent.
1954: May 19, 20; 1954: October 21.
Present: Taschereau, Rand, Estey, Locke and Fauteux JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Conspiracy to commit indictable offence—Gist of offence—Whether necessary to have intention to commit the indictable offence—Criminal Code, s. 573.
It is misdirection for a trial judge to tell the jury, at the trial of a person charged of having conspired with another person to commit the indictable offence of kidnapping, that the offence of conspiracy was complete by the making of the agreement to kidnap even though the other alleged conspirator never at any time had had any intention of carrying the agreement into effect. The mere agreement, without the intention of both parties to carry into effect the common design, is not sufficient. There must exist an intention not only to agree but also an intention to put the common design into effect.
Per Locke J. (dissenting): The gist of the offence of conspiracy is the agreement of two or more persons to commit any indictable offence, and the mens rea is to be found in the intention to offend against the penal provisions of an act. Therefore, the agreement entered here between the two conspirators to commit the offence of kidnapping was a conspiracy within the meaning of s. 573 of the Criminal Code. There was an agreement in the eyes of the law and the fact that one of the parties in the agreement did not intend to carry out his part of the bargain could not affect the legal nature of the arrangement.
The portion of the judgment of Willes J. in Mulcahy v. The Queen ((1868) L.R. 3 H.L. 306), purporting to define criminal conspiracy, was never intended as such, but rather was it a statement of the offence covered by the statute under which that case was tried.
R. S. Wright's The Law of Criminal Conspiracies and Agreements (1873 ed.); Poulterers Case (1611) 9 Co. Rep. 55b; Reg. v. Best (1705) 1 Salk. 174; O'Connell v. Reg. (1844) 11 Cl. & F. 155; Reg. v. Aspinall (1876) L.R. 2 Q.B.D. 48; Brodie v. The King [1936] S.C.R. 188 and Bank of New South Wales v. Piper [1897] A.C. 383 referred to.
Per Fauteux J. (dissenting): In the circumstances of this case, the exchange of promises could not be treated as having never existed because of the alleged mental reservation on the part of one of the two parties. Mental reservations are not apt to defeat the natural consequences of words accompanied by deeds. In this case, the common intention was assented to and encouraged by word and by deeds, and that was sufficient to constitute the conspiracy even though one of the parties did not intend to go through with the execution of the agreement. APPEAL from the judgment of the Court of Appeal for British Columbia[1], allowing, Robertson J. dissenting, the appeal of the respondent from his conviction on a charge of having conspired to kidnap and ordering a new trial.
T. G. Norris Q.C. for the appellant.
J. Stanton and G. M. Bleakney for the respondent.
TASCHEREAU, J.:—The Attorney General of British Columbia appeals from a judgment of the Court of Appeal[2] which ordered a new trial. It held that there had been misdirection.
The charge for which the respondent was convicted was that, in the City of Vancouver, British Columbia, between the 30th day of November, 1952, and the 14th day of January, 1953, the respondent unlawfully conspired with one Walter John Tulley and others, to commit a certain indictable offence, namely, kidnapping.
Tulley, the alleged co-conspirator, was not charged, but at the trial, being called as a Crown witness, he gave an account of various meetings he had with the respondent, and explained that both had agreed, at the request of the latter, to kidnap one Joan Margaret Pritchard. He said in his evidence that he never had any intention of going through with this plan, but was just fooling the respondent, or hoaxing him. He also explained that he denounced the whole scheme to the police authorities, and the respondent was arrested.
The learned trial Judge in his charge said:—
Counsel for the accused has suggested that the offence is not complete, because Tulley, in his own evidence, said that he had had at no time any intention of carrying out that agreement. I tell you as a matter of law, gentlemen, that the offence was complete, if, in point of fact, the accused and Tulley did make the agreement which is charged against him, even though Tulley never at any time had any intention of carrying the agreement into effect.
The Court of Appeal, Mr. Justice Robertson dissenting, held that this constituted misdirection, and therefore, ordered a new trial.
The contention of the respondent which was accepted by the majority of the Court of Appeal, is that Tulley, not having any intention to carry through the common design, could not be a party to the conspiracy, and that therefore, O'Brien the respondent, could not alone be found guilty of the crime. It is common ground that no others were involved in the conspiracy. The mere agreement, without any intention to carry into effect the common design would, according to the submission of the appellant, be sufficient.
I think there has been some confusion as to the element of intention which is necessary to constitute the offence. It is, of course, essential that the conspirators have the intention to agree, and this agreement must be complete. There must also be a common design to do something unlawful, or something lawful by illegal means. Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement. I cannot imagine several conspirators agreeing to defraud, to restrain trade, or to commit any indictable offence, without having the intention to reach the common goal.
I fully agree with some of the statements that have been made by the Court of Appeal of Quebec in Rex v. Kotyszyn[3]. The head note reads:—
There was no common design between the accused and the policewoman, and there was no agreement between them since the policewoman had no intention of undergoing the operation. Consequently there was neither a conspiracy nor an attempt to conspire.
In the same case, at page 269, Mr. Justice MacKinnon said:—
There can be no conspiracy when one wants to do a thing and the other does not want to do it.
Stephen (Commentaries on the laws of England, 21st Ed., Vol. 4) says at page 166:—
The object of the agreement may be the accomplishment of an unlawful act, or of a lawful act by unlawful means. In other words it must be unlawful either in its aims or in its methods.
The two elements of agreement and of common design are specifically stated to be essential ingredients of the crime of conspiracy. Willes, J. in Mulcahy v. The Queen[4]: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties… punishable if for a criminal object…
Vide also Rex v. McCutcheon[5].
This is not the case of the conspirator, who after having completed the crime, withdraws from the conspiracy. If a person, with one or several others, agrees to commit an unlawful act, and later, after having had the intention to carry it through, refuses to put the plan into effect, that person is nevertheless guilty, because all the ingredients of conspiracy can be found in the accused's conduct. But, when the conspiracy has never existed, there can be no withdrawal.
The definition of conspiracy itself supposes an aim. People do not conspire unless they have an object in view. The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialized, and does not become harmful to any one. The intention must necessarily be present because it is the unlawful act necessarily flowing from the intention, that the state wishes to prevent.
In the case at bar, there is evidence that although he made an agreement with the respondent, Tulley never intended to carry the plan through and kidnap Mrs. Pritchard. On the other hand, there is also evidence that may indicate that he intended to attain the object of the agreement. Did Tulley have this intention or not? This is a question for the jury, and I would invade a domain which is not mine, if I attempted to answer it.
It has been said that if the submission of the respondent were the law, it would be impossible to obtain a conviction on a charge of conspiracy, because the mental state of an accused very often remains in the sphere of uncertainty. All crimes where intention is an essential element would then become impossible to prove. Various factors have to come into play, and with their help it is then possible to determine what the intention was. There is a presumption for instance, that a person who does an act intends to do it. As well, numerous circumstances will indicate if an alleged thief intended to rob, or if a killer intended to murder. Conspiracy is not in a different class. It is within the exclusive province of the jury, to weigh all the evidence and to determine all these questions of fact, and to say whether the intentional element is revealed by the evidence.
But I do think that the jury were not properly instructed when they were told that, even without the intention to commit the kipnapping, which was necessarily the common design, the conspiracy was complete by the agreement. The jury were not free to weigh the evidence because, being improperly instructed, they had to disregard what is in my view one of the most important elements of the crime for which the accused was charged.
I agree with the Court of Appeal that there was misdirection, and that consequently there must be a new trial. It has been suggested that the Court of Appeal should have dismissed the appeal, on the ground that although there was misdirection, a properly instructed jury would have necessarily come to the same conclusion. (Cr. Code 1014). With this proposition, I entirely disagree. There is evidence that would justify a properly instructed jury to acquit or to convict, and I do not think in either alternative, that the verdict would be set aside as unreasonable.
I would dismiss the appeal.
RAND J.:—I agree that a conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed; mere words purporting agreement without an assenting mind to the act proposed are not sufficient. The point of difference between the judgments below is the meaning to be given the word "agreement". In the opinion of Robertson J.A.[6] there was an agreement when Tulley in effect said "I will" even though at that moment his mind was "I won't". The mens rea here appears to lie in the intent to utter the words "I will"; but this severance of the intention to speak the words from that of carrying out the action they signify is a refinement that seems to me to be out of place in a common law crime. Modern statutes have introduced offences in which the objective or physical acts themselves are struck at but they are irrelevant to the unwritten offences. Bishop's Criminal Law, 9th Ed. Vol. II, p. 131 puts it thus:—
Obviously there must be, between the conspirators, a concert of will and endeavor, not a mere knowledge, acquiescence or approval or a mere several attempt to accomplish the particular wrong…. Where there are only two, and one simply joins in appearance to draw the other on, neither is a conspirator.
and at p. 132:—
As soon as this union of will is perfected, the offence of conspiracy is complete,—no act beyond is required…. It is sufficient if the minds of the parties meet understandingly so as to bring about an intelligent and deliberate agreement to do the acts and commit the offence charged, although such agreement be not manifested by any formal words.
The question raised is, in my opinion, concluded by the judgment of the House of Lords in Mulcahy v. The Queen[7]. In that case a prosecution had been brought under The Crown and Government Security Act, 11 Vict., c. 12. The indictment following the language of the statute alleged that the accused with five other persons "did feloniously and wickedly compass, imagine, invent, devise, and intend to deprive and depose Our Lady the Queen from the style, honour, and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland" and proceeded to declare that the accused did "express, utter, and declare by divers overt acts and deeds hereinafter mentioned, that is to say". The overt acts were then alleged:—
In order to fulfill, perfect and bring to effect this felonious compassing, imagination, invention, devise and intention aforesaid, they… feloniously and wickedly did combine, conspire, confederate, and agree with (19 other persons all named) and with divers other evilly disposed persons, to the jurors aforesaid unknown to raise, make, and levy insurrection and rebellion against Our said Lady the Queen within this realm.
The statute required the expression of compassing and intending by overt acts and it was necessary, therefore, to allege them. The question raised was whether a conspiracy was such an act. The House held that it was. This means that the act of conspiracy was sufficient to establish both the compassing and the intention to do the forbidden act, or to put it in another form, that in conspiracy there is not only agreement to do the act proposed signified by words or other means of communication, but also the coexistent intent in each to do it. If that were not so, conspiracy would not have evidenced the intention of those charged "to deprive and depose, etc." The language of Willes J. at p. 317 of the report bears out that view. In the course of considering the argument that conspiracy rests in intention only and that an overt act must consist in some external manifestation or deed, he says:—
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.
In that language he distinguishes between the intention of each person severally and the communicated assent between them to carry out the intention. In stressing the necessity for agreement he assumes the existence of intent.
The same view is expressed in Rex v. Dowling[8]. It appears that one of the witnesses had in appearance been involved in the conspiracy and it had been urged that being an accomplice his evidence required corroboration. Erle J., in directing the jury on this, said:—
He was not an accomplice, for he did not enter the conspiracy with the mind of a co-conspirator, but with the intention of betraying it to the police, with whom he was in communication.
In The Queen v. Aspinall[9], Brett J.A., dealing with one of the counts in the indictment for conspiracy to defraud, expressed himself thus:—
If the second count in this indictment contains averments sufficiently stated which are enough to shew sufficiently that the defendants unlawfully, i.e. with minds intending to do wrong, agreed by false pretences to cheat and defraud… it sufficiently alleges a criminal conspiracy within the last rule above enunciated. That rule was,
An agreement made with a fraudulent or wicked mind to do that which, if done, would give to the prosecutor a right of suit founded on fraud, or on violence exercised on or towards him, is a criminal conspiracy.
On the contrary view, even if both parties had been without the intent to carry out the scheme, each seeking to incriminate the other, they would have drawn guilt upon themselves.
Assuming, then, the truth of the evidence of Tulley that at no time did he ever intend to go along with the proposal made to him, there was no conspiracy.
I would, therefore, dismiss the appeal.
ESTEY, J.:—The respondent was found guilty before a jury upon an indictment that charged that he conspired with Tulley and others to kidnap Mrs. P. The learned judges in the Court of Appeal[10], Mr. Justice Robertson dissenting, were of the opinion that there had been misdirection and directed a new trial. The passage held to constitute misdirection reads as follows:
Counsel for the accused has suggested that the offence is not complete, because Tully, in his own evidence, said that he had had at no time any intention of carrying out that agreement. I tell you as a matter of law, gentlemen, that the offence was complete, if, in point of fact, the accused and Tully did make the agreement which is charged against him, even though Tully never at any time had any intention of carrying the agreement into effect.
The contention is that the learned trial judge was in error in stating that even though Tulley never, at any time, had any intention of carrying the agreement into effect, the offence was completed. Tulley was not charged, but was called as a witness on behalf of the Crown. O'Brien gave evidence on his own behalf. These parties, upon all essential points, are in complete disagreement. It is clear, however, that no others were involved and, therefore, if there was a conspiracy, it existed only between O'Brien and Tulley.
In view of the objection to the charge, it will be necessary to summarize only Tulley's evidence. Early in December O'Brien approached him and suggested, and it was agreed, that he would assist O'Brien to kidnap Mrs. P. for the sum of $500. During one of the first conversations he received $10. O'Brien also showed him where Mrs. P. lived and, as Mrs. P. was standing in the window, he pointed her out as the lady he desired to kidnap. He accompanied O'Brien to White Rock to find a house where they might take Mrs. P., but none was found. Before Christmas he received $190. In January he received $40 to pay for the rent of a house that he led O'Brien to believe was available for rent. He did not, however, spend this $40, but retained it, making a total of $240 that he had received from O'Brien and which he kept. In January, though a day was not fixed for the kidnapping, O'Brien was pressing that it ought to be done as quickly as possible. On January 12 Tulley told Mrs. P. of O'Brien's intentions, which led to the arrest and prosecution of O'Brien. Tulley deposed to the foregoing and stated that though he had entered into an agreement with O'Brien to kidnap Mrs. P. that never, at any time, had he intended to carry out the agreement. O'Brien denies that at any time he entered into an agreement to kidnap Mrs. P. He admits the payment of the three sums of money—$10, $190 and $40—but explains these in a manner that has no relation to the kidnapping, and likewise the trips looking for the houses.
Though dealt with in several sections of the Criminal Code, the result is that conspiracy to commit any indictable offence is itself an indictable offence. Nowhere, however, does the Code define a conspiracy. The definition, therefore, must be found in the common law. Since 1868 the accepted definition has been that of Mr. Justice Willes in delivering the opinion of the judges in Mulcahy v. The Queen[11]:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.
Mulcahy was indicted under An Act for the better Security of the Crown and Government of the United Kingdom (11 & 12 Vict., c. 12). This statute, in part, provides that If any Person… shall, … compass, … or intend to deprive or depose our most Gracious Lady the Queen, … and such Compassings, … Intentions, or any of them, shall express, utter, or declare, … by any overt Act or Deed, every Person so offending shall be guilty of Felony, …
It was the contention of the prosecution in the Mulcahy case that his conspiracy with nineteen others to stir up and incite insurrection and rebellion constituted an overt act within the meaning of the statute.
Mulcahy was convicted and his conviction affirmed in the Court of Queen's Bench in Ireland. Upon a further proceeding by way of writ of error his conviction came before the House of Lords. Their Lordships solicited the opinion of the judges and this was delivered by the Honourable Mr. Justice Willes, in the course of which he gave expression to the definition of a conspiracy above quoted and which, as I have said, has been accepted since 1868.
The point material to this discussion was stated by Mr. Justice Willes at p. 316:
The main point of this question is, whether a conspiracy to do an unlawful act in promotion of a felonious design can be a sufficient "overt act" to express that design within the 11 Vict. c. 12. The first count and the first overt act sufficiently raise that question.
This point, particularly as it was contended on behalf of Mulcahy that, as conspiracy rested in intention only, it could not be an overt act within the meaning of the statute, required a consideration of what constituted a conspiracy and, where it existed, would it be accepted as an overt act and, if so, was it an overt act within the meaning of the statute. The statute under which Mulcahy was indicted did not contain a definition of conspiracy and it would appear that Mr. Justice Willes and the learned judges on whose behalf he was writing were setting forth their conception of conspiracy under the common law. Under this definition a conspiracy does not exist in the mere intention to commit an unlawful act, but when two or more entertain that intention and embody their common design in an agreement the conspiracy is complete. It is the concluding of the agreement which constitutes the overt act. Then, specificially referring to whether the conspiracy constituted an overt act within the meaning of the statute, Mr. Justice Willes stated at p. 317: The history of the statute also points clearly to the conclusion that a conspiracy is a sufficient overt act, and, indeed, seems to shew that the language of the Act, following that of 36 Geo. 3, c. 7, was framed to confirm, and even extend, the decisions upon the construction of Statute of Treasons, and to preclude all such questions for the future.
The opinion of the learned judges expressed by Mr. Justice Willes was approved by all of their Lordships sitting in the House of Lords. Lord Chelmsford, while approving of Mr. Justice Willes's opinion, stated the grounds upon which he arrived at the same conclusion. At p. 328 he stated:
It is a mistake to say that conspiracy rests in intention only. It cannot exist without the consent of two or more persons, and their agreement is an act in advancement of the intention which each of them has conceived in his mind. The argument confounds the secret arrangement of the conspirators amongst themselves with the secret intention which each must have previously had in his own mind, and which did not issue in act until it displayed itself by mutual consultation and agreement.
Though the precise point with which we are here concerned was not before the court in the Mulcahy case, the language of both Mr. Justice Willes and Lord Chelmsford, it seems to me, indicates the answer. In that case, as in all cases of felony, or, under the Code, indictable offences, unless otherwise provided, the requisite mens rea must be found. This can only be found, when conspiracy is charged, if the mental attitude of the parties is such that each possesses a common design or intention to do an unlawful act or a lawful act by unlawful means. Lord Chelmsford gives expression to the same view in the passage already quoted. In this passage he emphasizes that it is the agreement to carry out the intention which each has conceived in his mind. If, therefore, where only two parties are involved, one has not "conceived in his mind" that intention, there can be no agreement evidencing a common design and, therefore, the offence of conspiracy is not completed. In this case, as it is so often throughout the criminal law, the nature and character of the act is determined by the intention of the party committing it.
Again in Russell on Crime, 10th Ed., at p. 1798, it is stated:
The external or overt act of the crime is concert by which mutual consent to a common purpose is exchanged. This further emphasizes that there must be "mutual consent to a common purpose". Tulley's conduct was undoubtedly reprehensible, whether he intended to conspire, or to obtain money wrongfully from respondent, or to accomplish some other wrongful purpose. We are here only concerned with whether he possessed an intention to conspire with the respondent to kidnap Mrs. P. If he had such an intention at the time of the agreement and subsequently withdrew, he is none the less guilty. If, however, he never possessed a common design or intention with respondent to kidnap Mrs. P., then there was no conspiracy.
I am, therefore, in respectful agreement with the learned judges who have held that there was misdirection. While there was evidence to support the verdict, it cannot be said that a jury, properly directed, would have necessarily reached the same conclusion. I would, therefore, affirm the judgment of the Court of Appeal directing a new trial.
The appeal should be dismissed.
LOCKE J. (dissenting):—This is an appeal by the Crown from a judgment of the Court of Appeal for British Columbia[12] by which the appeal of Daniel O'Brien from his conviction of conspiracy to kidnap Joan Margaret Pritchard was allowed and a new trial directed. Mr. Justice Bird, with whom the Chief Justice of British Columbia agreed, delivered the judgment of the majority of the Court. Mr. Justice Robertson dissented and would have dismissed the appeal.
O'Brien was charged in that he, at the City of Vancouver, between November 30, 1952 and January 14, 1953:—
Did unlawfully conspire, combine, confederate and agree together with Walter John Tulley, and together with divers other persons unknown, to commit a certain indictable offence, namely kidnapping, by then and there conspiring, combining, confederating and agreeing together to unlawfully kidnap Joan Margaret Pritchard with intent to cause her to be secretly confined within Canada against her will, against the form of the Statute in such case made and provided.
On this charge he was tried before Davey J. and a jury at Vancouver, found guilty and thereafter sentenced to five years' penal servitude. O'Brien appealed to the Court of Appeal on the ground of misdirection in the charge to the jury and it was upon this ground that the majority of the Court considered there should be a new trial.
It is necessary for the determination of the matter to examine closely the evidence given on behalf of the Crown at the trial. Tulley, referred to in the indictment, had apparently known O'Brien for several years. On December 11, 1952, Tulley was unemployed and apparently penniless. His evidence was that that day he met the accused in Vancouver, when the latter asked him to go with him to a club where they had some drinks together. At this time O'Brien told him, without mentioning her name, that he had been going with a young woman for two years, that she had left him and that he was trying to get her back. During the time that they were together, Tulley said that O'Brien told him that the only way he could figure out to do this was to kidnap her. At the same time, he said that O'Brien, learning that he was "broke", gave him $10. Two or three days later, the two men met by arrangement and discussed plans for kidnapping the woman and Tulley said that O'Brien then said that if he would "stick with him and see him through this thing he would do right by me in regard to money" and mentioned the sum of $500. According to Tulley, what O'Brien proposed was that they would kidnap the woman and conceal her in a house and Tulley said that he thought it would be possible to get a satisfactory place for this purpose at White Rock, a village near the American border on the coast south of Vancouver. On December 18, 1952, Tulley hired a U-Drive car and drove with O'Brien to White Rock. The search there for a suitable house in which to conceal the woman was unsuccessful and the two returned to Vancouver. Tulley told O'Brien that he knew a fisherman in Vancouver from whom he thought they could get a house. This statement, he admitted, was untrue and the fisherman an imaginary person. On the day following, the two men met and Tulley asked O'Brien if he would loan him a couple of hundred dollars. O'Brien agreed and the amount was paid but not as a loan but rather as a payment on account of the promised sum of $500 to assist in the kidnapping. In spite of this fact, Tulley said that he offered O'Brien an I.O.U. for the money but this the latter refused, saying that he:—
Would trust me and if I would stick with him he would stick by me, he would keep his promise.
Tulley, according to his story, continuing the deception of O'Brien told him that he did not think he would be able to get the fisherman's house before some time in January. Thereafter they met several times and discussed the manner in which they were to carry out the proposed kidnapping. O'Brien's plans according to Tulley, were that they would go together to Mrs. Pritchard's house when Tulley was to knock on the door and when she came seize her, put tape over her mouth, put her in the back seat of a car and take her to the house selected.
Around New Year's Tulley says that he borrowed a car and drove out to East 52nd Street in Vancouver with O'Brien and pointed out a house which, he said, he had in mind as the place to conceal the woman and that O'Brien approved of it. Tulley said that his statements as to this house were also false, that he had merely picked it at random and had made no arrangements to rent it. At the same time, the two of them discussed how they were going to get food into the house while the woman was concealed there and, according to Tulley, O'Brien then stated that he was going to either make her come with him or she would go back a very sorry woman. Later that day, Tulley said that he told O'Brien that the rent of the house would be $40 and the latter gave him the money. No arrangements had been made to rent the place and Tulley apparently appropriated the money to his own use. About January 12, O'Brien who had, according to Tulley, been trying to speak to the woman on the telephone, said that they must carry out their plan at once, whereupon Tulley decided to inform Mrs. Pritchard and her husband of what O'Brien proposed and he was then taken in charge by the Police.
During the cross-examination of Tulley at the trial, the statements were made which gave rise to the claim of misdirection. The relevant portion of the evidence reads:—
Q. Now isn't it a fact that you at no time did any more than pretend to O'Brien that you would assist him in this kidnapping?
A. I didn't get the question. Q. Perhaps I can assist you. I am going to read to you something that you said at the Preliminary Hearing. I would direct your attention to page 39, my lord, about the fifth line from the top of the page:
Q. You had no intention of going through with this scheme you are telling us about, did you?
A. This kidnapping?
Q. Yes.
A. No.
Q. Were you asked that question on the Preliminary Hearing and did you make the answer which I have read to you on oath?
A. I did.
Q. Is it true?
A. It is.
Q. I will proceed:
Q. No, no of course not. And you didn't agree in any way with O'Brien that you would do such a thing, did you?
A. Yes.
Q. You mean "yes" you did make such an agreement?
A. With him, yes.
Q. But you had no intention of carrying it out?
A. No.
Q. You were just fooling him, eh?
A. Yes.
Q. Were you asked those questions at the preliminary hearing and did you make those answers on oath?
A. I did.
Q. Are they true?
A. They are.
Q. In other words, witness, you were just hoaxing him, weren't you?
A. I was.
In charging the jury, the learned trial Judge instructed them that, as a matter of law, the offence of conspiracy was complete if in point of fact the accused and Tulley did make the agreement, even though Tulley never at any time had any intention of carrying his part of it into effect.
Bird J.A. considered that the charge was in this respect inaccurate, since the burden was upon the Crown to prove that each of the participants had the intent that the agreement should be carried into effect by one or both of them and that since, if the quoted portion of Tulley's evidence should be believed by the Jury, the intent was that of O'Brien alone, he could not be found guilty of conspiracy. As the question as to whether Tulley did in fact intend to carry out his agreement at the time he made it had not been left to the jury, he considered there should be a new trial. Robertson J.A. was of a contrary opinion, considering that the gist of the offence was the agreement itself and that as Tulley, on his own statement, had intended to make the agreement, whether or not he intended to carry it into effect, the conspiracy was proved if the evidence were to be believed. Agreeing with the opinion of the majority that mens rea must be shown, he said in part:—
I think in this case mens rea was proved by the mere entering into the agreement. If one person does the act of agreeing with another person to commit an indictable offence, intending to do that act (that is to say the act of agreeing) his mind is rea whether he intends to commit that indictable offence or not. It is not of the essence whether he has, or has not, a mental reservation as to its completion. Mens rea is in such a case merely a condition of mind which is evidenced by the act of agreeing itself. The guilty intent which is important is the intent to enter into the agreement.
The charge was aid under section 573 of the Criminal Code which reads:—
Every one is guilty of an indictable offence and liable to seven years' imprisonment who, in any case not hereinbefore provided for, conspires with any person to commit any indictable offence.
In the same terms, this was enacted as section 527 of the Criminal Code when first enacted in 1892 (c. 29). Kidnapping is made an indictable offence by section 297 of the Code.
The Code does not define either the word conspire or the offence of conspiracy. In some of the text books and in some of the reported cases, a passage from the judgment of Willes J. in the opinion expressed by him on behalf of the judges in Mulcahy v. The Queen[13], is accepted as a definition of a criminal conspiracy. In the 10th edition of Russell on Crimes, at p. 1797, the following appears:—
The generally accepted definition of the offence is that given by Wilkes (sic.) J. on behalf of all the judges in Mulcahy v. R., and accepted by the House of Lords in that and subsequent cases:—
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. It has been said that in Quinn v. Leatham[14], this was accepted as a definition of the offence (R. v. Brailsford[15], Alverstone C.J. at 746). With respect, I think this to be inaccurate since Lord Brampton alone, of the Law Lords who considered Quinn v. Leatham, mentioned Mulcahy's case or the extract from the judgment of Willes J. quoted by Russell.
In my opinion, the portion of the judgment of Willes J. above quoted was never intended as a definition of a criminal conspiracy, rather was it a statement of the offence which was punishable under the statute under which Mulcahy was charged. That Act was chapter 12 of 11 Vict. being An Act for the better security of the Crown and Government of the United Kingdom and amended earlier statutes passed in the reign of Geo. III directed to the punishment of treason. The language of the indictment followed that of the statute and charged that the accused
Did feloniously and wickedly compass, imagine, invent, devise and intend to deprive and depose Our Lady the Queen.
and thereafter alleged various overt acts. It was of the offences so charged that Willes J. employed the language quoted by Lord Brampton in Quinn v. Leatham (and repeated in Russell as aforesaid), but part of his remarks were omitted which preceded and appear to me to explain the part quoted. The omitted passage reads (p. 317):—
The argument was that a conspiracy rests in intention only, that the law distinguishes between acts intended and acts done; and that an overt act, to satisfy the statute, must consist in either publishing or printing some writing, or in some bodily act or deed, such as procuring arms.
So far as this question depends upon the bare construction of the statute, it appears to admit of no doubt.
It has been said that the opinion of the judges in Mulcahy's case was approved by the House but it seems quite clear that all that the Law Lords approved was that this part of the opinion of Willes J. was a correct statement of the offence created by the statute, cap. 12 of 11 Vict.
It is to be noted that in Regina v. Dowling[16], a prosecution under the statute under which Mulcahy and others had been charged, Erle J. in charging the jury said (p. 514):— The indictment is divisible into two distinct parts: first, the criminal intent: secondly, the overt acts, by means of which such intent was carried out. The law requires proof, to the satisfaction of the jury, that such intent existed, and that such overt acts were committed.
In the Law of Criminal Conspiracies by R. S. Wright published in 1873, five years after the judgment of Willes J. and that of the House of Lords in Mulcahy's case had been delivered, the learned author said (p. 14) that no intelligible definition of conspiracy had yet been established and an examination of the earlier authorities supports this statement, in my opinion. After referring to the expression used by Willes J. in Mulcahy's case abov