BSA S.8 is the evidentiary provision on conspiracy (distinct from the substantive offence of conspiracy under BNS S.61). It makes the acts and statements of any conspirator relevant against all conspirators, once the conspiracy is prima facie established. Sections S.9 to S.13 then cover residual categories of relevant facts that do not fit within res gestae (S.4) or motive/preparation/conduct (S.6).
BSA S.8 = IEA S.10 (conspiracy evidence). BSA S.9 = IEA S.11 (facts not otherwise relevant become relevant). BSA S.10 = IEA S.13 (right or custom). BSA S.11 = IEA S.14 (state of mind). BSA S.12 = IEA S.15 (system or design). Confidence: high.
BSA S.8: Things Said, Done or Written by Co-Conspirators
"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
Requirements
| Requirement | Content |
|---|---|
| Reasonable ground to believe a conspiracy exists | Prima facie evidence of conspiracy must be established first |
| Two or more persons | The minimum for conspiracy |
| In reference to the common intention | The statement or act must relate to the shared criminal design |
| After the common intention was first entertained | Acts or statements before the conspiracy was formed are not covered |
| Against each conspirator | Admissible against all, including those who did not personally make the statement or do the act |
The Two-Stage Process
| Stage | What happens |
|---|---|
| Stage 1 | The court must be satisfied that there is reasonable ground to believe a conspiracy exists. This may be proved by independent evidence |
| Stage 2 | Once prima facie established, the acts and statements of any conspirator in reference to the common design become admissible against all |
Facts: A conspiracy to murder was alleged. The prosecution sought to admit letters written by one conspirator to another.
Issue: When are the statements of one conspirator admissible against another?
Held: The statements are admissible only if: (1) the conspiracy is prima facie established; (2) the statements were made in furtherance of or in reference to the common design; (3) they were made after the conspiracy was formed. Statements made after the conspiracy has ended (e.g. after arrest, or after the object is achieved) are not admissible under this section.
Relevance: The controlling authority on the temporal and purposive limits of S.8. Statements after the conspiracy ends (including confessions to police after arrest) do not fall within S.8.
What S.8 Does NOT Cover
| Excluded | Reason |
|---|---|
| Statements made before the conspiracy was formed | Not "after the time when such intention was first entertained" |
| Statements made after the conspiracy has ended (arrest, completion, abandonment) | No longer "in reference to the common intention" |
| Statements not related to the common design | "In reference to their common intention" must be satisfied |
| Confessions by one co-accused against another | Governed by S.21 BSA (= IEA S.30), a separate provision with its own limits |
S.9: Facts Not Otherwise Relevant Become Relevant
"Facts not otherwise relevant are relevant:
- if they are inconsistent with any fact in issue or relevant fact
- if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable"
This is the catch-all provision. If a fact does not fit under S.4 to S.8 but logically tends to make the fact in issue more or less probable, it is relevant under S.9.
S.10: Course of Business, Right and Custom
"When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact."
"When the question is as to the existence of any right or custom, facts showing that such right or custom was exercised or enjoyed are relevant."
S.11: State of Mind
"Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant when the existence of any such state of mind or body is in issue or is relevant."
Proviso: A fact relevant only as showing a state of mind must show the state of mind contemporaneous with or proximate to the transaction, not a state of mind at a remote time, except where it shows a system.
S.12: Facts Showing System or Design (Similar Facts)
"When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant."
This is the "similar fact evidence" provision. It permits proof of other instances to rebut a defence of accident or to show a pattern.
| Example | What it shows |
|---|---|
| Three previous wives of A died of arsenic poisoning | The fourth wife's death was not accidental |
| A insurance fraud defendant made five similar claims | The current claim is fraudulent, not genuine |
| A repeatedly sold the same goods to different buyers | A pattern of cheating, not an isolated mistake |
Limit: The similar facts must be sufficiently similar and the prejudicial effect must not outweigh probative value.
Recall Check
- What is the two-stage process for admitting evidence under S.8?
- Are statements made after the conspiracy ends admissible under S.8?
- What does S.12 (similar facts) rebut?
- What does S.11 require as to the temporal proximity of the state of mind?
Key Cases
Mirza Akbar v King-Emperor (1940) Mirza Akbar v King Emperor 1940
Issue: When co-conspirator's statements are admissible.
Rule: Only after prima facie establishment of conspiracy, in reference to the common design, and during the subsistence of the conspiracy.
Held: Post-conspiracy statements excluded.
Distinctions
| Basis | S.8 (Conspiracy Evidence) | S.21 (Confession by Co-Accused) |
|---|---|---|
| Nature | Acts, statements, writings of a co-conspirator | Confession by one accused affecting another |
| Admissible against | All conspirators | May be "taken into consideration" against co-accused (weaker: not substantive evidence) |
| When | During the subsistence of the conspiracy | After the conspiracy (typically after arrest) |
| Standard | Admissible as relevant fact | Only for consideration, not conviction solely on its basis |
| IEA/BSA | S.8 BSA (= IEA S.10) | S.21 BSA (= IEA S.30) |
| Basis | S.11 (State of Mind) | S.12 (Similar Facts / System) |
|---|---|---|
| What it shows | The accused's mental state at the time of the act | A pattern of similar conduct, rebutting accident |
| Temporal requirement | Contemporaneous with or proximate to the transaction | Other instances at different times |
| Limit | Remote states of mind excluded unless showing system | Must be sufficiently similar to be probative |
| Example | A's hostility towards B expressed the day before | A has poisoned three previous partners in the same way |
| Basis | S.4 (Res Gestae) | S.8 (Conspiracy) |
|---|---|---|
| When admissible | During the same transaction (contemporaneous) | During the subsistence of the conspiracy (may be weeks or months) |
| Against whom | Anyone whose conduct forms part of the transaction | Against all conspirators, even those not present |
| Maker | Anyone | Must be a conspirator acting in reference to the common design |
| Spontaneity | Required (for statements) | Not required; statements may be deliberate and calculated |
Flashcards
What does BSA S.8 make admissible against all conspirators?
Things said, done or written by any one conspirator in reference to the common intention, after the conspiracy was formed and during its subsistence.
What is the two-stage process for S.8?
(1) Prima facie establish the conspiracy by independent evidence. (2) Then acts/statements of any conspirator in furtherance of the design become admissible against all.
Are post-conspiracy statements (after arrest) admissible under S.8?
No. Mirza Akbar v King-Emperor (1940): statements after the conspiracy ends fall outside S.8.
What does S.12 (similar facts) rebut?
A defence of accident or coincidence. If the same person was involved in a series of similar occurrences, it rebuts the claim that the current instance was accidental.
What is the temporal limit on state of mind evidence under S.11?
Must show the state of mind contemporaneous with or proximate to the transaction, not a remote state, except where it shows a system.
Exam Scenario
Problem: A, B and C are charged with conspiracy to commit dacoity. The prosecution produces: (a) a WhatsApp group chat between A, B and C discussing "the plan" for the robbery, sent two days before the offence; (b) a phone call by A to D (a fence) after the dacoity, saying "we have the gold, come collect"; (c) evidence that A committed two previous robberies using the same method. The defence argues (b) is after the conspiracy ended and (c) is prejudicial character evidence. Advise.
Step 1: Test (a) under S.8
| Requirement | Chat messages |
|---|---|
| Conspiracy prima facie established? | The messages themselves help establish it; other evidence (the dacoity occurred) reinforces |
| Statement by a conspirator | Yes: messages by A, B and C |
| In reference to the common design | Yes: "the plan" for the robbery |
| After the conspiracy was formed | Yes: two days before the offence, while the conspiracy subsisted |
Admissible under S.8 against all three.
Step 2: Test (b) under S.8
The phone call by A to D is after the dacoity. Has the conspiracy ended?
| Factor | Assessment |
|---|---|
| Was the call in furtherance of the common design? | Yes: disposing of stolen goods is part of the criminal design; the conspiracy includes the disposal phase |
| Had the conspiracy ended? | Not yet: if the common design included fencing the goods, the conspiracy subsists until disposal is complete |
Apply Mirza Akbar: the conspiracy ends when its object is achieved or abandoned. If the object included obtaining benefit from the stolen goods (fencing), the call to the fence is within the subsistence of the conspiracy.
Admissible under S.8 against A, B and C (the conspiracy was still alive at the disposal stage).
Step 3: Test (c) under S.12
| Requirement of S.12 | Previous robberies |
|---|---|
| Question in issue | Whether this act was intentional (not accidental) |
| Series of similar occurrences | Two previous robberies using the same method |
| Person doing the act was concerned | A was involved in both |
| What it shows | System or design; rebuts any defence of accident or mistaken identity |
Admissible under S.12 to show that A's participation was deliberate and followed a pattern.
The defence argument that it is "prejudicial character evidence" fails. S.12 specifically permits similar fact evidence to rebut accident and show design. It is not general character evidence (which would be under S.46/S.47).
The conspiracy does not end at the moment of the dacoity. If the plan included disposal of proceeds, the conspiracy subsists until disposal is complete. Post-offence communications about fencing are still "in reference to the common design."
S.12 is not character evidence. Similar fact evidence under S.12 is admitted for the specific purpose of rebutting accident or showing system. It is not the same as putting the accused's "bad character" in issue under S.46/S.47.
Conclusion. (a) Admissible under S.8 (during conspiracy, in reference to common design). (b) Admissible under S.8 (conspiracy not yet ended; disposal phase). (c) Admissible under S.12 (similar facts showing system).
See Also
- Doctrine of Res Gestae : the contemporaneous exception, contrasted with the wider temporal reach of S.8.
- CRIM-2.4 Criminal Conspiracy : the substantive offence of conspiracy under BNS S.61.
- Motive, Preparation and Conduct : motive and preparation that often accompany conspiracy evidence.