Date of this Version


Document Type

Journal Article

Publication Details

Barrett, M. (1996). Conspiring to do the impossible: The Queen v Barbouttis. High court review, 2, 12 pp.



In the decision of R v Barbouttis (1995) 37 NSWLR 265 the Court of Criminal Appeal was asked to decide the relevance of impossibility to a charge of criminal conspiracy. The defence of impossibility as it applies to the 'auxiliary' crimes of conspiracy, attempt, and incitement has long been debated. Judges and commentators have developed two principal approaches to the defence of impossibility. The subjective approach states that it is criminal for a person to do an act or enter an agreement with the belief that a substantive offence will be committed. The fact that the substantive offence may be impossible to commit is irrelevant. Impossibility is a defence only if (in the language of conspiracy) the agreement is to do that which is not a crime. For example, if two people agree to commit adultery with the false belief that it is a crime, they cannot be convicted of conspiracy. In contrast, the objective approach states that if two or more people agree to commit a crime that is factually or legally impossible to achieve, they cannot be convicted of conspiracy.

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