Workplace Bullying – Conspiracy
November 16, 2010 Leave a comment
In McKernan v Fraser the Court stated that:
In an action against a set of persons in combination, a conspiracy to injure followed by actual injury, will have a good cause of action, and motive or intent when the act itself is not illegal is the essence of the conspiracy.
Once it is established that two or more persons are bound together in their pursuit of injuring a person, then anything said or done or written by one of them to further the common purpose of injuring a person, will be admissible in evidence against the others. This is to prove to the court the participation of the bullies to injure a person. It is also known as ‘combination’ in criminal law that means that the bullies have combined to injure.
In Sorrell v Smith, the plaintiff must prove the purpose of the combination to be ‘deliberately interfering with a man’s trade’ which is ‘spiteful and malicious’. Your client’s use of the Events Chart is crucial here.
The co-conspirators rule in Ahern v R is the “rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others”, for the purpose of proving an assertion or implied assertion contained in the act or declaration in question. The court added the “combination implies an authority in each to act or speak on behalf of the others.
Therefore, anything said or done by one conspirator in pursuit of the common purpose may be treated as having been said or done on behalf of another conspirator. Once participation in the conspiracy is established, the evidence would prove the nature and extent of the participation.
Note that the High Court in Ahern v R held:
The proof of conspiracy then, will typically be by way of circumstantial evidence of the words spoken, and acts done by the co-conspirators during its transaction.
The crime of conspiracy has been described as “either to do an unlawful act, or a lawful act by unlawful means”
To knowingly cause or allow behaviour that causes workplace injuries is an unlawful act.
In Australia, the common law of conspiracy is only in New South Wales and South Australia. The Commonwealth Crimes Act 1914 creates the statutory crimes of conspiracy. The Code States of Queensland and Tasmania have abolished common law conspiracy and replaced them with a statutory crime of conspiracy. The Western Australian Criminal Code (as amended in 1987) confines conspiracy to agreements to commit a crime. In the Australian Capital Territory the Crimes Act 1900 (NSW) was amended in 1988. The new section 349 creates statutory conspiracies which incriminate agreements to commit an offence, to prevent or defeat the execution or enforcement of a law of the ACT; to effect a purpose that is unlawful under a law of the Territory. The Northern Territory Criminal Code has enacted a number of statutory crimes for conspiracy.
Lord Brampton stated in Quinn v Leathem in reference to both criminal and civil conspiracy: “a grain of powder is harmful but a pound may be highly destructive”.
In the Irish case of Parnell, Fitzgerald J had earlier claimed that an agreement “to effect an injury or wrong” to a third party was an indictable conspiracy, even though its purpose, if executed, would in itself only ground a civil remedy, because this purpose “assumes a formidable or aggravated character when it is to be effected by the powers of combination”.
Lord Bramwell stated in the civil conspiracy case of Mogul SS Co Ltd v McGregor, Gow & Co  that “a man may…encounter the acts of a single person, yet not be fairly matched against several”. This statement was endorsed by Lord Esher MR in Temperton v Russell and Lord McNaghten in Quinn v Leathem.
In general, the rules of evidence apply to the proof of criminal conspiracy. The only way conspiracy can be proved is direct evidence of the acts by which the alleged conspirators formed their agreement.
The Canadian Supreme Court in Paradis v R stated:
No doubt the agreement…is the gist of the offence [ie, conspiracy], but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from “several isolated doings” having possible little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.
Ahern is now the leading Australian case dealing with the proof of conspiracy.
Strictly speaking, the co-conspirators rule is an exception to the hearsay rule. Words and acts of the co-conspirators will sought to be admitted, independently of the rule, for their significance as physical and verbal acts independent of their hearsay value.
The High Court in Ahern v R noted that conspiracies typically had to be proven circumstantially and by their reference to their overt acts. Once circumstantial proof was obtained, the way of proof of the acts of the alleged co-conspirators can be relied upon for their non-hearsay value. Therefore, for
this purpose, evidence may be led which includes the acts or declarations on one alleged conspirator made outside the presence of the others provided such evidence is not le to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.
In Tripodiit was stated that proof of the crime of conspiracy “may will consist in evidence of the separate acts of the individuals charged with, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment”.
In Ahern v R, the co-conspirators rule is that “rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others”, for the purpose of proving an assertion or implied assertion contained in the act or declaration in question. The court added the “combination implies an authority in each to act or speak on behalf of others. Thus anything said or done by one conspirator in pursuit of the common purpose may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation…”
Ganging up on a workplace colleague can be a conspiracy to injure. Go back to the horror cases in the original manual and you will see a plethora of cases where ganged up bullying caused severe injuries, long-term disabilities and even death. If this has happened to your client, then a criminal offence has occurred and you can bring in a conspiracy to injure. Not easy but not impossible!
 McKernan v Fraser (1931) 46 CLR 343
 Sorrell v Smith  AC 700
 ibid p.748
 Ahern v R (1988) 62 ALJR 440
 ibid p.442
 Jones (1832) 111 ER 485 at 487 per Lord Denman
 Quinn v Leathem (1901) AC 495
 R v Parnell (1881) 14 Cox CC 508
 ibid p.514
 Mogul SS Co Lt v McGregor Gow & Co  AC 25
 Temperton v Russell  1 QB 715
 op cit 7 p.511
 Paradis v R (1934) 61 CCC184
 Kenny, C.S., Outlines of Criminal Law 19th ed. by J.W. Cecil Turner.
 op cit 13 p.186
 Ahern v R (1988) 165 CLR 87
 Tripodi v R (1961) 104 CLR 1
 op cit 16