2. Attempts to Commit an Offence

Question 1

What are the liabilities for Attempts?

Answer 1

Section 72

(1)

• Everyone who having INTENT to commit an offence
• DOES or OMITS an act
• for the PURPOSE to accomplish his OBJECT
• is GUILTY of attempts to commit the offence intended
• WHETHER in the circumstances it was possible to
  commit that offence or not

(2)

• 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 QUESTION of law.

(3)

• 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, whether or not there was any act
  unequivocally showing the intent to commit that
  offence.

Question 2

What are the three elements that must apply for a conviction to succeed?

Answer 2

• INTENT (Mens Rea) - to commit an offence
• ACT (actus reus) they did, or they omitted to do,
  something to achieve that end.
• PROXIMITY - that their act or omission was sufficiently
  close.

Question 3

What was found in R v Ring?

Answer 3

In this case the offender’s intent was to steal the property by putting his hand in the pocket of the Victim. Unbeknown to him the pocket was empty. Despite this he was able to be convicted of the ATTEMPTED THEFT, because the intent was to steal the 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.

Question 4

Inferring an INTENT from an Act, is it possible, if so what are some examples?

Answer 4

Yes an inference can be taken from an act to show intent, for example from what the offenders says and the act itself.

Question 5

What needs to be shown about an offender’s state of mind during the offence of Attempts?

Answer 5

INTENT to commit the crime is essential, its a must.

Question 6

Who is the QUESTION for if intent exists in relation to ATTEMPTS?

Answer 6

It is a question of fact, and it is upto the jury to decide this.

Question 7

What is the definition for Act?

Answer 7

It is not defined under Crimes Act 61 however the ordinary meaning is “To take action OR to do something , to bring about a particular result”

Question 8

What is the definition of omission?

Answer 8

Not defined by Crimes Act - however it is the deliberate act not to do something or the action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

Question 9

What must the Act(s) be in relation to the ALL BUT rule?

Answer 9

The Acts must be sufficiently proximate (close) to the full offence.

Effectively the accused must have started to commit the full offence and have gone beyond the phase of mere preparation.

Question 10

What are some of the ACTS that constitute an attempt to commit an offence? (American Model Penal Code)

Answer 10

L - Lying in wait, searching for OR following the contemplated victim.

E - enticing the victim to go to the scene of the contemplated scene

R - reconnoitring the scene of the contemplated crime

U - unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed

P - possessing, collecting or fabricating materials to be employed in the commission of the crime

S - soliciting an innocent agent to engage in conduct constituting an element of the crime.

Question 11

Can several acts together be viewed as an attempt?

Answer 11

Yes, R v Harpur supports this.

Question 12

What was found in R v Harpur?

Answer 12

(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.

Question 13

What is the test for proximity?

Answer 13

Should always ask has the question “is it preparation or has it gone beyond preparation?

• Has the offender DONE anything more that getting himself into a position from which he could embark on an actual attempt? OR
• Has the offender actually commenced execution; that is to say has he taken a step in the actual crime itself?

Question 14

Is PROXIMITY a question of law?

Answer 14

Yes it is a question of law. This is outlined in section 72(2)

Question 15

What does the word “Impossibility” refer to?

Answer 15

It refers to a physical or factual impossibility and not to a legal impossibility.

Question 16

When is an act physically or factually impossible?

Answer 16

If the question amounts to an offence but the suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond their control.

Question 17

What three case laws relate to people being convicted of ATTEMPTS but were physically impossible to commit?

Answer 17

R v Ring

Hand in the pocket had intent to steal what was inside but pocket was empty.

Higgins v Police

Where plants were cultivated as cannabis plants but were in fact not, it is physically but not legally impossible to cultivate such prohibited plants. Accordingly it is possible to commit the offence of attempting to cultivate cannabis.

Police v Jay

A man bought hedge clippings believing they were cannabis.

The above cases the offenders could be convicted of attempts because they acted with criminal intent.

Question 18

When is an act legally impossible?

Answer 18

Cases where an act is not illegal despite the offender’s belief may think its illegal but in reality it is not.

Question 19

What case law identifies with legally impossible?

Answer 19

R v Donnelly

Where stolen property had 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.

In simple terms, if a person attempts to receive property which are no longer deemed as stolen then they cannot be convicted.

Note: an attempt to receive such stolen goods is therefore possible in fact, but impossible in law.

Question 20

When is an attempt complete?

Answer 20

An attempt is complete even when the defendant changes their mind or make a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence.

Question 21

At what point does the defendant has no defence to attempts?

Answer 21

When acts are sufficiently proximate and there is no defence because they:

• were prevented by some outside agent from doing
  something that was necessary to complete the
  offence; eg interruption from police.
• failed to complete the full offence due to ineptitude,
  inefficiency or insufficient means; eg: insufficient
  explosive to blow apart a safe.
• were prevented from committing the offence because
  an intervening event made it physically impossible, eg
  removal of property before intended theft.

Question 22

What is the function of the Judge?

Answer 22

The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.

Once the Judge makes the decision if the defendant has left the stage of preparation and ready to commit the full offence. Then it is passed over to the Jury to make a decision on the case.

Question 23

What is the function of the Jury?

Answer 23

To decide if the Crown has proven the facts beyond reasonable doubt, and if so, to decide next if the actions by the defendant are close enough to the full offence.

If the jury decides that the actus reus is established then it must equally find the mens rea the same, that is the prosecution’s evidence must be beyond reasonable doubt that the defendant intended to commit the full offence.

Question 24

Under what situations where you cannot charge with ATTEMPTS?

Answer 24

• 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. For
  example, Demands with Menace, it is the demand
  accompanied by the menace that constitutes the
  offence.

Question 25

In relation to filing charges what does section 149 CA 61 relate to?

What does section 150 state?

Answer 25

If a person is charged with the full offence but is found guilty of ATTEMPTS, they can be convicted of that.

If a person is charged with ATTEMPTS but then is proven to have committed the full offence then they can only be convicted of attempts.

Question 26

What is the penalty for attempts?

Answer 26

If it is life it is max of 10 years but in any other case it is half of the maximum penalty.