2. Attempts Flashcards
What is held re attempts, s72(1) - intent?
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What is held re attempts, s72(2) - act?
The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
What is held re what constitutes attempts, s72(3) - proximity?
An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence
Along with the identity of the suspect, what are the elements for attempts?
- Intent (mens rea) – intended to commit an offence
- Act (actus rea) – that they did, or omitted to do, something to achieve that end
- Proximity – that their act or omission was sufficiently close
What is the case law regarding intent?
in this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.
- R v Ring
Who decides on where intent exists?
whether intent exists or not is a question of fact and sits with the jury to decide.
When is an act sufficiently proximate, i.e. the “all but” rule?
the accused must have started to commit the full offence and have gone beyond the phase of mere preparation.
What is the case law regarding cumulative acts?
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done…is always relevant, though not determinative.
- R v Harpur
What are the tests for proximity to determine when an act of preparation may become an attempt?
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
- Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
Who decides on the matter of proximity?
this is a question of law so is decided by the judge based on the assumptions that the facts of the case are proved.
When can a person be convicted of an offence vs not?
a person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.
What is a case law, regarding cultivating cannabis, showing an example of physical impossibility for attempts?
where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.
- Higgins v Police
What is a case law, regarding purchasing cannabis, showing an example of physical impossibility for attempts?
A man bought hedge clippings believing they were cannabis.
- Police v Jay
What is held regarding legally impossible acts?
where the completed act is legally impossible, ie. act is not an offence – the suspect cannot be convicted of an attempt even where they may have had criminal intent. The suspect may believe that the completed act is illegal, but be mistaken in their belief that the completed act is illegal.
What is a case law regarding legally impossible acts ie stolen property?
where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.
- R v Donnelly
