Attempts

Question 1

Attempts - definition
(Section 72(1), Crimes Act 1961)

Answer 1

(1) Everyone who
(2) Having an intent to commit an offence
(3) Does or omits an act
(4) For the purpose of accomplishing his objective

Question 2

Three elements of proof - attempts

Answer 2

(1) Intent to commit the full offence (mens rea)
(2) That they did, or omitted to do, something to achieve that end (actus reus)
(3) Their act or omission was sufficiently close

Question 3

Inferring (proving) intent from the act

Answer 3

Intent may be inferred from the act itself (what they did) and/or proven by admissions or confessions (what they said)

Question 4

R v Ring (intent inferred from actions)

Answer 4

The offender was able to be convicted of attempted theft because the intent to steal was present in his mind and demonstrated by his actions.

Question 5

Act

Answer 5

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

e.g. a Dr deliberately administers a substance to a patient that results in death

Question 6

Omission

Answer 6

A failure to fulfil a moral or legal obligation

e.g. a Dr deliberately avoids administering a substance to a patient who is critically ill and is required to save the patient’s life

Question 7

Actus reus - purpose

Answer 7

The purpose of the act or omission must be so that the offence can be facilitated.

The actus reus refers to the action or conduct (physical)

Question 8

Actus reus - sufficiently proximate

Answer 8

The offender must have done something that is sufficiently proximate to the full offence.

Must have started to commit the full offence and gone beyond mere preparation

Question 9

R v Harpur (acts viewed cumulatively)

Answer 9

The defendant’s conduct may be considered in its entirety. How much is left to be done is relevant, although not determinative.

Question 10

Test for proximity (questions)

Answer 10

(1) Has the offender done anything more than getting himself into a position from which he COULD embark on an actual attempt?

(2) Has the offender actually commenced execution (taken a step in the actual crime itself)?

If yes to either = attempts

Question 11

Impossibility

Answer 11

A person cannot be convicted of an offence that was legally impossible to commit

A person can be convicted of an offence that was physically impossible to commit

Question 12

Higgins v Police (physical impossibility - cultivating cannabis)

Answer 12

Where plants are being cultivated as cannabis but are not in fact cannabis it is physically impossible, but not legally impossible, to cultivate such prohibited plants

(still criminally liable for attempts)

Question 13

Police v Jay (physical impossibility - hedge clippings)

Answer 13

A man bought hedge clippings believing they were cannabis

(still criminally liable for attempts)

Question 14

R v Donnelly (legal impossibility - receiving)

Answer 14

Where stolen goods have been returned to the owner or legal title to property has been acquired, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen

Question 15

When is an attempt complete?

Answer 15

After completing an act that is sufficiently proximate to the intended offence

Question 16

No defence (attempts)

Answer 16

(1) Prevented by an outside agency (e.g. Police)
(2) Ineptitude, inefficiency or insufficient means (e.g. explosive failed)
(3) Intervening event (e.g. removal of property before intended theft)

Question 17

What is the function of the Judge v Jury?

Answer 17

Judge
- Decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence (if yes, then it goes to jury)

Jury
- Whether the FACTS presented by the Crown have been proven beyond reasonable doubt, and (if so)
- Whether the defendant’s ACTS are close enough to the full offence (actus reus), and
- Whether the prosecution’s evidence convince the jury beyond reasonable doubt that the defendant INTENDED to commit the full offence (mens rea)

Question 18

When are you unable to charge someone with attempts?

Answer 18

(1) Criminality depends on recklessness or negligence
(2) An attempt is included within the definition of offence e.g. assault
(3) The act has to have been completed in order for the offence to exist at all e.g. demands with menaces

Question 19

What is the penalty of attempts?

Answer 19

Life imprisonment offence = 10yrs
Any other case = half of the maximum punishment of that offence