Attempts Flashcards
S 72, Crimes Act 1961
(1) 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.
(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.
Elements (3 minimum)
Legally vs physically
Intent (mens rea) - to commit the 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.
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.
Intent
What must be shown?
Attempted Manslaughter?
Inferring intent from the act?
R v Ring
Must be shown that the accused’s intention was to commit the substantive offence.
Generally accepted that there is no “attempted manslaughter.” Contradiction in terms to hold that someone intended to cause death unintentionally.
Intent may be inferred from the act itself (what they did) and/or proved by admissions/confessions (what they said)
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.”
Intent - Question of fact
Whether the intent exists is for the jury to decide.
“All but” rule
Relate to R v Ring
Proximity - the accused must have started to commit the full offence and gone beyond the phase of mere preparation.
In R v Ring, the actus reus was the putting of the hand into the victim’s pocket, this being a physical act on the part of the offender towards completing what would have amounted to a theft had property been present.
Acts that may be sufficiently proximate (6)
CA in HARPUR referred to the American Moral Penal Code:
Lying in wait, searching for or following contemplated victim.
Enticing victim to go to scene
Reconnoitring the scene prior to crime
Unlawful entry to scene prior to
Possession, collection or fabrication of materials to be used
Soliciting an innocent agent to engage in conduct constituting an element of the crime
Several acts together may constitute an attempt
R v Harpur
Independent acts, when viewed in isolation, can be construed as preparatory. When the same acts are viewed collectively, they take on a different context and therefore amount to a criminal attempt.
R v Harpur:
“The court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops… the defendant’s conduct may be viewed in its entirety. Considering how much remains to be done… is always relevant, though not determinative.”
Test for proximity
Mere preparation or sufficiently proximate?
Simester and Brookbanks:
Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
If the answer to either question is yes, there is an attempt as a matter of law.
Question of law for a judge.
Physically or factually impossible - suspect unable to commit offence due to…
Higgins v Police
Police v Jay
The act amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude, or any other circumstances beyond their control.
Higgins v Police:
“Where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate 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.
Legally impossible
R v Donnelly
Where a completed act is legally impossible (where the completed act would not be an offence) the suspect cannot be convicted of an attempt, even where they had criminal intent.
Suspect may mistakenly believe that the completed act is illegal. There MUST be an attempt to commit an actual offence.
R v Donnelly - goods no longer stolen, so legally impossible to receive stolen property:
“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.”
Defendant changes mind/voluntary withdrawal?
Attempt to attempt?
Function of judge and jury?
Attempt is complete even when defendant changes their mind or voluntarily withdrawals after completing an act that is sufficiently proximate to the intended offence. No defence that they were prevented by an outside agent, ineptitude/inefficiency or an intervening event.
No such thing as “attempts to attempt.” Acts of preparation can sometimes be their own offence, e.g. Prepares to Commit under Summary Offences Act S 28.
Judge decides whether defendant left the preparation stage and was trying to effect completion of the full offence. Jury decides if the defendant’s mens rea and actus reus are proven beyond reasonable doubt.
Unable to charge with attempts? (3)
Can’t charge when:
- criminality depends on recklessness or negligence (manslaughter)
- an attempt is included within the definition of the offence (assault)
- the offence is such that the act has to have been COMPLETED for the offence to exist at all (demands with menace: demand accompanied by menace constitutes the offence).
Filing of charges
Criminal Procedure Act 2011
S 149 - Defendant charged with full offence, but found guilty of only an attempt? - can be convicted of attempts.
S 150 - Charged with attempts, but the full offence is proved? - can only be convicted of the attempt.
Charge wording: include the words “attempted to” before the main text.
Sections and Act of full offence, followed by S 72 of Crimes Act (attempts)
Penalties
S 311, Crimes Act 1961
Where no punishment is expressly prescribed by the full offence…
Maximum 10 years imprisonment if the maximum punishment for the full offence is life imprisonment.
In other cases, no more than half the maximum punishment of the full offence.
