2. Attempts to Commit an Offence - Legislation etc

Question 1

Outline the definition attempts in S72(1) CA61

Answer 1

(1) 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

Question 2

Outline the definition attempts in S72(2) CA61

Answer 2

(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 a question of law.

Question 3

Outline the definition attempts in S72(3) CA61

Answer 3

(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 4

What are the elements of an attempt?

Must Know

Answer 4

• intent (mens rea) – to commit an offence
• act (actus reus) – that they did, or omitted to do, something to achieve that end
• proximity – that their act or ommission was sufficiently close

Question 5

What must be shown when proving an attemtp?

Answer 5

When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.

Question 6

What does the requirement in S72(1) suggest?

Answer 6

The requirement for “intent” in section 72(1) suggests that an intention to commit the offence only will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or
negligence.

Question 7

Provide an example of intent to commit an offence?

Must Know

Answer 7

Assault with intent to commit sexual violation
* The Court held in L v R8 that in relation to sexual violation, which under s128 Crimes Act 1961 requires only that the accused lack a reasonable belief in consent, the mens rea of an “attempted” sexual violation is precisely the same as that required for the completed offence. All that needs to be proved is that at the time of the accused’s acts, the accused did not hold a reasonable belief that the complainant was consenting to the intended activity.

Question 8

Provide an example of an offence where recklessness is present?

Must Know

Answer 8

Manslaughter
* This is because attempt under section 72 requires an intent to bring about aspecific object. With manslaughter death is unintended.

Question 9

How can the intent of the offender be inferred?

Answer 9

The intent of the offender(s) may be inferred from the act itself (what they did) and/or proved by admissions or confessions (what they said).

Question 10

Provide an example of an attempt and how intent can be inferred?

Must Know

Answer 10

Attempted burglary
To be convicted of attempted burglary the offender(s) must have had the intent to commit the actual burglary. Intent can be inferred, for example, from the burglars admitting they went to
the property intent on committing the burglary and/or them being found in
possession of tools or disguises at the back door of a premises before actually entering

Question 11

R v Ring discusses intent. What was held?

Must Know Case Law

Answer 11

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.

Question 12

Define Act?

Must Know

Answer 12

To take action or do something, to bring about a particular result:
Oxford Dictionaries, Oxford University Press.

Question 13

Provide an example of an act?

Must Know

Answer 13

A doctor deliberately administers [the act] a substance to a patient that causes the patient’s death

Question 14

Define omission?

Must Know

Answer 14

The action of excluding or leaving out someone or something, a
failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford University Press.

Question 15

Provide an example of an omission?

Must Know

Answer 15

A doctor deliberately avoids administering [the omission] a substance to a patient who is critically ill, when he knows that the substance would save the
patient’s life.

Question 16

What does sufficiently proximate outlined in S72(3) CA61 mean in practice?

Answer 16

Effectively, the accused must have started to commit the full
offence and have gone beyond the phase of mere preparation – this is the “all but” rule.

Question 17

Outline the examples referred to in the American Model Panel that the court referred to in R v Harpur?

Must Know

Answer 17

• 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 enterring 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.

Question 18

In relation acts constituting an attempt, what was held in R v Harpur?

Must Know Case Law

Answer 18

“[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 19

Outline the test for proximity suggested by Simester and Brookbanks?

Must Know

Answer 19

• Has the offender done anything more than 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 20

When is an act physically or factually impossible?

Answer 20

An act is physically or factually impossible if the act in 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 21

R v Ring relates to physical impossibility as it relates to attempts. What was said?

Must Know Case Law

Answer 21

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.

Question 22

Higgins v Police relates to physical impossibility as it relates to attempts. What was said?

Must Know Case Law

Answer 22

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.

Question 23

Police v Jay relates to physical impossibility as it relates to attempts. What was said?

Must Know Case Law

Answer 23

A man bought hedge clippings believing they were cannabis.

Question 24

What does it mean when an actis legally impossible?

Answer 24

The suspect may believe that the completed act is illegal, but be mistaken in their belief that the completed act is illegal. That is, there must be an attempt to commit an actual offence, not an attempt to do something that, contrary to the person’s belief at the time, does not amount in law to an offence.

Question 25

R v Donnelly deals with a legally impossible act. What was held?

Must Know Case Law

Answer 25

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.

Question 26

When is an attempt complete?

Answer 26

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

Question 27

What defences to the offender are negated once the acts are sufficiently proximate?

Answer 27

The defendant has no defence that they:
1. Were prevened by some outside agen from doing something that was necessary to complete the offence
2. failed to complete the full offence duee to ineptitude, inefficiency or inssufficent means
3. were prevented from committing the offence because an intervening event made it physically impossible.