Attempts

Question 1

Definition of attempts

Legislation

Answer 1

CA61; S72

CA61; S72 Attempts

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the 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 a 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.

Question 2

List the three elements of an attempt offence.

Answer 2

• 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 3

Why is there no offence for attempted manslaughter?

Answer 3

An attempt under CA61; S72 requires an intent to bring about a specific outcome.

With manslaughter, death is unintended.

Question 4

R v Ring

Attempted Theft

(Physically impossible, legally possible)

Answer 4

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 5

Definition of Offence/Crime

Answer 5

Any act or omission that is punishable on conviction under any enactment.

Question 6

Act; Omission - definition

Answer 6

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

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

Question 7

R v Harpur

Answer 7

“[The Court may]” have regard to [the defendant’s] 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 8

What are some actions that are sufficiently proximate to constitute an attempt?

(SLURP-E)

Answer 8

• Soliciting an innocent agent to engage in conduct constituting an element of the crime.
• Lying in wait, searching for or following the contemplated victim
• Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
• Reconnoitring the scene of the contemplated crime
• Possession, collection or fabrication of materials to be employed in the commission of the crime
• Enticing the victim to go to the scene of the contemplated crime

Question 9

When an act is considered to be physically or factually impossible

Answer 9

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 10

What is the test for proximity as referenced by Simester & Brookbanks?

Answer 10

• Has the offender done 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?

If ‘yes’, the there has been an attempt. If no then it is mere preparation.

Question 11

Higgins v Police

Example of factually impossible act

Answer 11

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 12

Police v Jay

Example of factually impossible act

Answer 12

A man bought hedge clippings believing they were cannabis

Question 13

R v Donnelly

Example of a legally impossible act

Answer 13

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 14

Why did the court set aside Donnelly’s conviction?

Answer 14

Because despite his mens rea and actus reus, it was legally impossible for him to receive stolen property as those goods were no longer deemed to be stolen (refer CA61; S246(4)).

Question 15

What is the role of judge and jury when it comes to deciding matters of attempts?

Answer 15

Judge:
Whether the defendant left the preparation stage and was already trying to effect completion of the full offence.

Jury:

• Whether the facts have been proved beyond reasonable doubt
• Whether the defendant’s acts are close enough to the full offence.

Question 16

What three groups of offences do not allow for a prosecution in respect of an attempt?

Answer 16

• The criminality depends on recklessness or negligence
• An attempt is included within the offence (eg assault)
• The act has to have been completed in order for the offence to exist at all (eg demands with menaces).

Question 17

What elements must be proved for a successful attempts prosecution?

Answer 17

• Identity
• Intended to commit an offence
• Did, or omitted to do, something to achieve that end.
• That their act was proximite - sufficiently close.

Question 18

What was held in R v Donnelly?

Answer 18

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 19

List three situations where there is no defence to an ‘attempts’ charge.

Answer 19

1. Prevented by some outside agent from doing something that was necessary to complete the offence.
2. Failed to complete the offence due to ineptitude etc.
3. An intervening event made it impossible eg, removal of property before intended theft.