2. Attempts to Commit an Offence Flashcards
What are the liabilities for Attempts?
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.
What are the three elements that must apply for a conviction to succeed?
- 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.
What was found in R v Ring?
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.
Inferring an INTENT from an Act, is it possible, if so what are some examples?
Yes an inference can be taken from an act to show intent, for example from what the offenders says and the act itself.
What needs to be shown about an offender’s state of mind during the offence of Attempts?
INTENT to commit the crime is essential, its a must.
Who is the QUESTION for if intent exists in relation to ATTEMPTS?
It is a question of fact, and it is upto the jury to decide this.
What is the definition for Act?
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”
What is the definition of omission?
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.
What must the Act(s) be in relation to the ALL BUT rule?
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.
What are some of the ACTS that constitute an attempt to commit an offence? (American Model Penal Code)
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.
Can several acts together be viewed as an attempt?
Yes, R v Harpur supports this.
What was found in R v Harpur?
(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.
What is the test for proximity?
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?
Is PROXIMITY a question of law?
Yes it is a question of law. This is outlined in section 72(2)
What does the word “Impossibility” refer to?
It refers to a physical or factual impossibility and not to a legal impossibility.