Attempt Flashcards
R v Mohan
Police office stood out on road to wave down driver. The driver slowed down, appeared to be looking at the police officer menacingly and then when approached police officer speed up. The officer jumped out of the way avoiding any injury and the driver carried on. Charged with an attempt of wanton driving to cause bodily harm.
Held that the MR required for attempt is always intent.
R v L
Attempted rape. 49 year old women, convicted of sexual violation and attempted sexual violation of a 15 year old boy.
Adopted UK rule in Khan into NZ - Held that you distinguish between consequences and circumstances - for additional circumstances you do not impose the MR of attempt, rather it corresponds with the MR of the full offence. You can consider two different states of mind. Do not need to prove intentional non-concessional sex, rather absence of reasonable belief in consent is sufficient. = NZ will use the consequences v circumstance dichotomy.
Held you do not need to prove intentional non-concessional sex, rather absence of reasonable belief in consent is sufficient.
Wylie
Attempting to procure cocaine. The police were doing a search of a tinny house and these guys rang to get some drugs, the police answered and told then to come over. The police opened door dressed in disguise and began negotiations with the guys but just before they made an offer to buy the drugs the police arrested them.
Held that the acts of the defendants were proximate enough to constitute an attempt because were already trying to commit the offence by taking real and practical steps towards the full offence.
Look retrospectively at the acts already done towards committing the full offence.
COA took a common sense approach and looked back retrospectively at the steps that had been taken.
R v Wilcox
Attempted aggravated robbery of a post office. Had brough riffles, disguises and arranged a driver but on the way pulled over by the police 1km from destination (had been tipped off by friend) and charged with attempt. Mr. Wilcox defence was that on the way to the destination he had a change of heart and his actions went no further than preparation.
Held that the acts were not proximate. Judge looked prospectively into the future at what the accused still had left to do.
The COA agreed, being 1km from post office was not proximate enough, they had not yet commenced execution of the offence. In order for acts to be proximate need to establish a closer physical geographical connection between the offender and the destination.
The court in R v Harper held that Wilcox was possibly wrong and when considering the strong intention being 1km away would likely now be deemed as proximate.
R v Harpur
Attempted sexual violation. Defendant had been messaging a young woman including disturbing video and she showed the police. The police lured the defendant into sexual violation of two made up young woman. D travelled to location (close to hotel where offence was planned to happen) where he believed V would be waiting with the children.
Rejects the approach in Wilcox and says four errors were made (both in the outcome and on a number of legal points). Upon review of Wilcox these points of law were established:
–> AR must be considered in conjunction with MR.
–> AR can be treated as variable dependent on the strength of the MR evidence.
–> Must take factual evaluation in terms of time, place and circumstances of the actions made.
Held the actions in Harpur were proximate because the intent was very clear, which assisted AR when looking at them together.
Considering the accumulation of actions taken they constituted an attempt, the accused was lying in weight of the victims.
Johnson v R
Mr Johnson kept watch of the house of a 16 year old girl, who slept in a sleepout on the rare of family property. One night wearing dark clothes, a beanie and gloves he entered the property but was caught by the father. Charged with attempted sexual violation. Important to note that
propensity evidence of previous sexual violation convicted was admissible.
Held that the actions were proximate due to Mr Johnsons presence on the property combined with his intent - relied on the propensity evidence to show that he was on the property to commit sexual violation.
Court stretched the strong evidence of intention rule that AR can be limited wider than it was in Harpur. Showing we are now in an era that is more prosecution friendly and section 72 needs to be interpreted broadly in order to do justice to the case.
Taia v Police
Accused was found asleep and smelling of alcohol slumped in the drivers seat of his van parked 1 meter away from the curb, engine running, lights and whippers on. Charged with attempting to drive a motor vehicle with excess breath alcohol.
Held not enough for attempt because there was not a clear intention.
Judge looked holistically at the case and concluded that evidence can go both ways and when in doubt you don’t read in favor of the prosecution but instead the accused. On that basis appeal was allowed because evidence did not establish an attempt beyond reasonable doubt.
R v Donnelly
LEGAL IMPOSSIBILITY
X stole gramophone records which were detected in a luggage office and collected by police. Donnelly with the luggage tag a few days later went to retrieve the luggage but it couldn’t be located by the worker.
Donnelly argued that because stolen property had been returned to owner there were no longer any stolen records to receive. This means there was no full offence that could be committed, and therefore how could there be an attempt.
Question of law was whether you can be convicted for attempt when the full offence is impossible? Held that defence of impossibility only available where it was a legal impossibility (not factual impossibility and not a mistake of law because innocence of the law is no excuse).
Present case was legal circumstances so D conviction was quashed.
It was the special section 261 that saved D, making the offence D was trying to commit no longer an offence. Hence why Donnelly has never been applied, nor overruled and remains good law.
Justice Turner set out six ways a person may fall short of completed offence and it is only in the instance of changing mind before committing a proximate act and legal impossibly that will prevent liability.
Nicolls v R
FACTUAL IMPOSSIBILITY
Ms Nicolls boyfriend was on the run from police for kidnapping and girlfriend sent him texts to help him evade arrest. She was charged with attempting to be an accessory after the fact to kidnapping.
Ms Nicoll argues that because her boyfriend had already been arrested at the time she sent the text she can not be charged for assistance because it was impossible for the texts to be of any assistance.
Held this is not a legal impossibility therefore defence not available.
Court held that regardless of assistance being an element of the full offence it is only an implied limitation, if this argument was to be accepted it would undermine section 72 by letting everyone off.
Analogized to Harpur, Jay and Austin which all involved a element required for the full offence being missing did not prevent liability of an attempt.
R v Barlow
FACTUAL IMPOSSIBILITY
Accused contracted an acquaintance to contract someone to kill his parents and acquaintance alerted the police. An undercover police pretended to be a willing killer and underwent arrangements with Barlow. Barlow agreed to pay a deposit for the killing, underwent extensive planning, but never made the deposit due to failing to find the funds. Barlow was charged with attempting to procure the murder of his parents.
Barlow argued on the basis that arrangements were mere preparation and that because arrangements were made with undercover police it was impossible for full offence to be committed.
Held that acts were proximate due to extensive planning and the only thing that stopped the murder in the eyes of the accused was that he failed to get the money.
Held that it was an impossibility of fact so defence does not apply.
Police v Jay
FACTUAL IMPOSSIBILITY
Jay was caught in the possession of what he thought was cannabis, and admitted guilt. Charged with possession of drug but upon testing it was actually grass clippings. Crown successfully lowered the charge to attempting to receive drugs.
Trial judge originally acquitted Jay on the basis that because he couldn’t commit the full offence he could not be liable for the attempt. But prosecution appealed.
Held not to be legal impossibility.
Indistinguishable for the COA decision in Austin that just because the noxious thing was not noxious at all is not determinative.
