2. Attempts To Commit An Offence Flashcards
Define Attempts S72
(1) Having intent to commit offence, does or omits an act for the purpose of accomplishing this object is guilty of an attempt. Whether possible to commit offence or not.
(2) Whether an act is an attempt or merely preparation is a question of law
(3) May be Attempt if immediately or proximately connected.
Three Elements of Attempt Offence
3 Conditions must apply
• intent (mens rea) – to commit an offence
• act (actus reus) – that they did, or omitted to do, something to achieve that objective
• proximity – that their act or commission was sufficiently close
Define Act
Define Omission
Act: To take action or do something, to bring about a particular result
Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation
American Penal Code Examples of Attempts
LER UMS
- lying in wait, searching for or following the contemplated victim
- enticing the victim to go to the scene of the contemplated crime
- reconnoitring the scene of the contemplated crime
- unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
- possessing, collecting or fabricating materials to be employed in the commission of the crime
- soliciting an innocent agent to engage in conduct constituting an element of the crime.
Inferring Intent
R v Ring
Summary- Intent to steal was present in his mind and demonstrated by his actions.
The intent of the offender(s) may be inferred from the act itself and/or proved by admissions or confessions.
R v Ring- Pickpocket Case
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.
Sufficient Proximate R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct stops.
The defendant’s conduct may be considered in its entirety.
How much remains to be done is always relevant, though not determinative.”
Proximity Test
Has the offender:
• done anything more than getting himself into a position
from which he could embark on an actual attempt? or
• actually commenced execution in the actual crime itself?
Physically or Factually Impossible
I I OC
An act is physically or factually impossible if suspect is unable to commit it due to interruption, ineptitude, or any other circumstances beyond their control.
Physically or Factually Impossible
Higgins v Police
Police v Jay
Higgins
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.
Jay
A man bought hedge clippings believing they were cannabis.
Ring- Pick pocket cases
Though all offences- physically impossible. Criminal Intent was present, therefore convicted of attempt
Legally Impossible Act
R v Donnelly
R v Donnelly
Where stolen property has been returned to the owner or legal property acquired, 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.
An attempt to receive such stolen goods is therefore possible in fact, but impossible in law.
When is act of attempt complete
An attempt is complete after completing an act that is sufficiently proximate to the intended offence.
Once the acts are sufficiently proximate, the defendant has no defence that they:
• were prevented from doing something that was necessary to complete the offence.
- failed to complete the full offence due to ineptitude, inefficiency or insufficient means.
- were prevented from committing the offence because an intervening event made it physically impossible.
When can you not charge with an attempt
- The criminality depends on recklessness or negligence, eg manslaughter.
- An attempt to commit an offence is included within the definition of that offence, eg assault.
- The offence is such that the act has to have been completed in order for the offence to exist at all. eg Demands with menace.
Filing Charges
When charged with full offence, can be convicted of attempt
When charged with attempt but found guilty of full offence, only convicted of attempt.
Function of a judge and jury
Judge must decide whether defendant has left preparation stage. If judge satisfied, then matter goes to Jury.
Jury decides if actus and Mens rea proven, and beyond reasonable doubt
