Attempts

Question 1

Attempts

Section 72, Crimes Act 1961

Answer 1

• 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

Answer 2

• Intent (mens rea) - to commit an offence
• Act (actus reus) - to commit an offence
• Proximity - that their act or omission was sufficiently close

Additionally there is the requirement that it must be legally possible to commit the offence in the circumstances. A person can be convicted of an offence that was physically impossible to commit.

Question 3

Intent

Answer 3

Must be shown that the accused’s intent was to commit the substantive offence.

Requirement for intent suggests that intention to commit an 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 4

R v Ring - Inferring Intent

Answer 4

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 5

A Question of Fact

Answer 5

Whether the intent exists or not is a question of fact; a question that the jury decides.

Question 6

Proximity

Answer 6

The accused must have done or omitted to do an act that is sufficient proximity to the full offence. 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.

When determining proximity you must take into consideration fact, degree, common sense and the seriousness of the offence in each case and these should be looked at in their totality and each on a case-by-case basis.

Question 7

What Constitutes An Attempt

Answer 7

American Model Penal Code provided examples that may constitute an attempt to commit an offence:

• Lying in wait, searching for or following a victim
• Enticing the victim to go to the scene of a crime
• Reconnoitring the scene of the crime
• Unlawfully entering 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 a crime
• Soliciting an innocent agent to engage in conduct constituting an element of the crime

Question 8

R v Harper - Several Acts

Answer 8

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 9

Physically or Factually Impossible

Answer 9

Whether in the circumstances it was possible to commit the offence or not, refers to a physical/factual impossibility not a legal impossibility.

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 10

Higgins v Police - Physically or Factually Impossible

Answer 10

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 11

Police v Jay - Physically or Factually Impossible

Answer 11

A man bought hedge clippings believing they were cannabis.

Question 12

R v Donnelly - Impossible Act

Answer 12

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 13

When an Attempt is Complete

Answer 13

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 14

What Doesn’t Constitute a Defence

Answer 14

• were prevented by some outside agent form doing something that was necessary to complete the full offence e.g. police
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means e.g. insufficient explosives
• were prevented from committing the offence because an intervening event made it physically impossible e.g. removal of property before theft

Question 15

Function of the Courtroom

Answer 15

Judge to decide whether the defendant has left the preparation stage and was already trying to effect completion of the full offence.

If the Judge decides the defendants actions were more than mere preparation, the case goes to Jury.

The Jury must decided whether the defendants acts are close enough to the full offence.

The prosecution’s evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence.

Question 16

Cannot be Charged with Attempts

Answer 16

• The criminality depends on the 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 e.g. demands with menace

Question 17

Charging With Attempts

Answer 17

Where a person is charged with the full offence, but they are found guilty only of an attempt, they may be convicted of an attempt.

Where a person is charged with the attempt but the evidence establishes that the defendant did in fact commit the full offence, they can only be convicted of the attempt.