Attempts

Question 1

Section for Attempts

Answer 1

Section 72 Crimes Act 1961

Question 2

Definition of attempts (Must know)

Answer 2

Having intent to commit an offence, does or omits an act for the purpose of accomplishing his object

Question 3

List the three conditions required for an attempt (Must know)

Answer 3

• Mens rea - intent to commit an offence
• Actus reus - did or omitted an act to achieve his object
• Proximity - the act or omissions was sufficiently close to the full offence

Question 4

What intent is required for an attempt?

Answer 4

Intent to commit the substantive offence

Question 5

Can one commit an attempted offence by recklessness or negligence?

Answer 5

No. Attempt requires intent to commit a full offence.

E.g. attempted manslaughter is not possible as manslaughter the death is unintended.

Question 6

How can intent for an attempt be proven and what is the related case law?

Answer 6

Intent may be inferred from the act itself.

R v Ring - 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.

Question 7

Is intent for an attempt a question of fact or law? (Must know)

Answer 7

A question of fact (for the jury to decide)

Question 8

Discuss proximity as it relates to an attempt (Must know)

Answer 8

An act or omission 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 the offence.

They accused must have started the full offence and gone beyond mere preparation (“all but” rule)

Question 9

What does the court refer to in providing examples of an attempt and give at least three examples?

Answer 9

The American Model Penal Code.

• Lying in wait, searching for a contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• unlawfully entering a structure, vehicle or enclosure in which it is contemplated that a crime will be committed
• possessing, collecting or fabricating materials to be employed in the crime
• soliciting an innocent agent to engage in conduct constituting an element of the crime
• reconnoitring the scene of the contemplated crime

Question 10

What does R v Harper state? (Must know)

Answer 10

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 alway relevant, though not determinative

Question 11

Is the proximity of an attempt a question of law or fact? (Must know)

Answer 11

It is a question of law (decided by judge)

Question 12

What is the two questions used as a test for proximity?

Answer 12

• 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?

Question 13

Can a person be convicted of an attempted offence that was impossible to commit? (Must know)

Answer 13

They can if it was physically impossible, not one which was legally impossible

Question 14

What is Higgins v Police? (Must know)

Answer 14

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 15

What is Police v Jay? (Must know)

Answer 15

A man bought hedge clippings believing they were cannabis, and this amounted to an attempt

Question 16

What is R v Donnelly? (Must know)

Answer 16

Where stolen property has been returned to the owner or legal title to it has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property has previously been stolen or dishonestly obtained

Question 17

When is an attempt complete? (Must know)

Answer 17

Once they have committed and act or omission sufficiently proximate to the substantive offence

Question 18

Can a person change their mind about an attempt after committing acts sufficiently proximate?

Answer 18

No, they are still liable

Question 19

Once a person has committed an act or omission sufficiently proximate to a substantive offence, what are NOT defences? (Must know)

Answer 19

• They were prevented by some outside agent from completing the offence
• they failed to completed the offence due to ineptitude, inefficiency or insufficient means
• They were prevented from committing the offence because an intervening event made it physically impossible

Question 20

Can you attempt to commit and attempt? (Must know)

Answer 20

No

Question 21

Discuss the function of the judge and jury in an attempt case? (Must know)

Answer 21

The judge must decide on proximity, that is whether the defendant has left the preparation phase and was attempting to commit the full offence. If so it then goes to the jury.

The jury decides whether the facts presented prove beyond reasonable doubt the actus reus, including proximity, and the mens rea, including intent to commit the full offence.

Question 22

When are you unable to charge someone with an attempt? (Must know)

Answer 22

• The criminality depends on recklessness or negligence
• An attempt to commit an offence is included within the definition of the offence
• The offence is such that the act has to have been completed in order for the offence to exist at all

Question 23

When a person is charged with a full offence, but is only found guilty of an attempt, what can they charged for?

Answer 23

Just the attempt

Question 24

When a person is charged with an attempt, but a full offence is proved, what can they be convicted for?

Answer 24

Only the attempt

Question 25

How do you frame an attempt charge?

Answer 25

Add the words “attempted to” before the main text, and then after the reference to the act and section for the full offence add the act and section for attempt

Question 26

What are the penalties for attempt offences where no specific attempt offences is specified?

Answer 26

• No more than ten years for a life imprisonment substantive offence
• In any other case no more than half the maximum punishment for the full offence