ATTEMPTS 1

Question 1

Attempting to commit an offence

Answer 1

Attempting to commit an offence:

Attempting to commit an offence
Section 72, Crimes Act 1961

• 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

**Three elements of an attempt offence

Answer 2

**Three elements of an attempt offence:

Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed:
· 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 3

R v Ring

Answer 3

R v Ring
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 4

*R v Harpur

Answer 4

**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.”

Question 5

**The test for proximity

Answer 5

**The test for proximity

Simester and Brookbanks suggests the following questions should be asked in determining the point at which an act of mere preparation may become an attempt:

· 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 6

**When an act is physically or factually impossible.

The three cases below are examples of physical impossibility as it relates to attempts.

Answer 6

**When an act is physically or factually impossible.

The three cases below are examples of physical impossibility as it relates to attempts.

R v Ring
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.

Higgins v Police
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.

Police v Jay - A man bought hedge clippings believing they were cannabis.

Question 7

**Donnelly: Example of legally impossible act

Answer 7

**Donnelly: Example of legally impossible act:

R v Donnelly

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 8

**When an attempt is complete

Answer 8

**When an attempt is complete:

Act completed sufficiently proximate to intended offence:

Once the acts are sufficiently proximate, the defendant has no defence that 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 9

**(Prosecution) Unable to charge with attempt:

Answer 9

**Unable to charge with attempt:

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

• 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, demanding with menaces: it is the demand accompanied by the menace that constitutes the offence.