Association offences (Attempts to commit an offence)

Question 1

What is the Act and Section that covers the definition of an attempt to commit an offence?

Answer 1

Section 72 Crimes Act 1961

Question 2

What does Section 72 NOT create?

Answer 2

It does not, of itself, create an offence of “attempt”. It is simply the definition of an attempt that applies to all offences.

Question 3

Where can the punishments for attempts be found?

Answer 3

Under several other provisions in the Crimes Act 1961.

Question 4

What are the three conditions and elements of an attempt offence?

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 omission was sufficiently close

Question 5

What must the suspects behaviour satisfy to constitute an offence?

Answer 5

All three conditions.

Additionally there is a requirement that it MUST be legally possible to commit the offence, in the circumstances.

Question 6

When can a person NOT be convicted of an attempt?

Answer 6

When the offence was physically impossible to commit.

Question 7

What does “Mens rea” mean?

Answer 7

It refers to the intention or knowledge of wrongdoing that constitutes part of a crime.

Question 8

What must you prove with regard to Mens Rea?

Answer 8

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

Question 9

What does the requirement for “intent” in section 72(1) suggest?

Answer 9

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 10

How can intent be inferred?

Answer 10

Intent can be inferred from the act itself (what they did) and/or proved by admissions or confessions (what they said).

Question 11

What is an example of inferring intent?

Answer 11

Attempted burglary - 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 12

R v Ring - what does this state?

Answer 12

In this case, the offenders 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 13

What is the definition of an act?

Answer 13

To take action or do something, to bring about a particular result.

Question 14

What is the definition of an omission?

Answer 14

The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

Question 15

What is an example of an act?

Answer 15

A doctor deliberately administers a substance to a patient that causes the patients death

Question 16

What is an example of an omission?

Answer 16

A doctor deliberately avoids administering a substance to a patient who is critically ill, when he knows that the substance would save the patients life.

Question 17

Actus reus definition?

Answer 17

Does or omits an act for the purpose of accomplishing his object. This refers to the action or conduct which is a constituent element of an offence.

Question 18

What does Section 72(3) require an act to be to constitute an offence?

Answer 18

It must be sufficiently proximate 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 19

What was observed in R v harpur in relation to an attempt?

Answer 19

That Section 72 applies to “hundreds of offences and an infinite variety of factual situations, the metes and bounds of which it was impossible for Parliament to predict.

Question 20

The Court referred to the American Model Penal Code as providing examples of acts that may constitute an offence - what are these examples?

Answer 20

• 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 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 21

What may be sufficient to prove an attempt?

Answer 21

Independent acts, when viewed in isolation, can be construed as preparatory. When the same acts are viewed collectively, they can take on a different context and therefore amount to a criminal attempt

Question 22

R v Harpur - what does this state?

Answer 22

The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done, is always relevant though not determinative

Question 23

What is the determination for proximity in relation to an offence?

Answer 23

The determination of an attempt is an inconclusive one and will come down to the circumstances as they exist for each individual offence that is being investigation.

Question 24

What do you have to “ask yourself” when determining if something is preparation?

Answer 24

Do the facts show mere preparation, or are the defendants acts or omissions immediately o rsufficiently proximate to the intended offence

Question 25

What are the questions that Simester and Brookbanks suggest should be asked in detereminng the point at which an act of mere preparation may become an attempt?

Answer 25

• 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 26

What is the question of proximity a question of?

Answer 26

It is a question of law; it is a question that is decided by the judge based on the assumption that the facts of the case are proved.

Question 27

When is an act physically or factually impossible to commit?

Answer 27

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 28

What are the three cases that are examples relating to physical impossibility as it relates to attempts? What was held in all three?

Answer 28

R v Ring
Higgins v Police and
Police v Jay

That the offenders could be convicted of an attempt, because they acted with criminal intent.

Question 29

What is the example relating to physical impossibility as stated in Higgens v Police?

Answer 29

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 30

What is the example relating to physical impossibility as stated in Police v Jay?

Answer 30

A man bought hedge clippings believing they were cannabis.

Question 31

When is an act legally impossible?

Answer 31

Where the completed act would not be an offence - 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 persons belief at the time, does not amount in law to an offence.

Question 32

Can a suspect be convicted of the attempt of an offence that was impossible to commit?

Answer 32

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.

Question 33

What is an example of a legal impossibility?

Answer 33

It is not an offence to attempt to sell the hallucinatory plant, Datura, in the mistaken belief that possession of it is illegal.

Question 34

R v Donnelly.- what was held?

Answer 34

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 35

When is an attempt complete?

Answer 35

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 36

Once the acts are sufficiently proximate, the defendant has no defence that they:

Answer 36

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

Question 37

Is there an attempt to commit an attempt?

Answer 37

No, there is no such thing as an attempt to commit an attempt, though as a general principle, an attempt to commit an offence is in itself an offence.

Question 38

Can acts of preparation amount to an offence?

Answer 38

Acts of preparation can sometimes be made to fit substantive offences e.g. the offence of preparing to commit a crime s28 SO Act 1981.

Question 39

What is the function of a judge or jury in relation to an attempt ?

Answer 39

The judge decides whether the defendant left the preparation stage and was already trying to effect completion of the full offence.
If the judge decides that it was more than mere preparation then the case goes to the jury.
The jury then decide whether the facts presented by the Crown have proved beyond reasonable doubt. If so, they must then decide whether the defendants acts were close enough to the full offence.
The prosecutions evidence must also convince the jury beyond reasonable doubt that the defendant INTENDED to commit the full offence.

Question 40

You are not able to charge someone with an attempt to commit an offence where:

Answer 40

• The criminality depends on recklessness or negligence, e.g. manslaughter
• An attempt to commit an offence is included within the definition of that offence, e.g. assault
• The offence is such that the act has to have been completed in order for the offence to exist at all. For example, demanding with menaces; it is the demand accompanied by the menace that constitutes the offence.

Question 41

Filing of charges, what to know:

Answer 41

• Where the defendant is charged with the full offence, but only an attempt is proved, they can be convicted of the attempt.
• Where a defendant is charged with an attempt, yet the full offence is proved, the defendant can only be convicted of the attempt

Question 42

What to note when framing the charge wording?

Answer 42

Add the words “Attempted to” before the main text. After the reference to the Act and section that creates the full offence, add the act and section that creates the offence of attempt.

Question 43

What penalties exist for an attempt?

Answer 43

Several provisions provide for express penalties for attempts to commit specific offences.

Where no punishment is expressly provided, the penalty section that is to be applied is s311(1)

Question 44

What is the penalty as established in Section 311?

Answer 44

Liability of 10 years imprisonment - if the maximum punishment for that offence is imprisonment for life
Liability of HALF the maximum punishment to which they would have been liable if they committed the full offence