Attempts Flashcards
Attempts
S72(1) Does or Omits
S72(1) CA61
- 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.
Attempts
S72(2) Question whether
S72(2) CA61
- 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.
Decided by a judge
Attempts
S72(3) Immediately or Proximately
S72(3) CA61
- 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.
The three elements of an attempt offence.
- 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.
Definition: Offence/Crime
They may be described as any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in s6, Criminal Procedures Act 2011.
Caselaw: R v Harpur
Hint, conduct conduct conduct
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 viewed in its entirety. Considering how much remains to be done is always relevant though not determinative
R v Ring
Attempted Theft
(Physical impossible, legally possible)
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.
Higgins v Police
Example of factually impossible act
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.
Police v Jay
Hedge clippings
(Physical impossible, legally possible)
Police v Jay
A man bought hedge clippings believing they were cannabis
R v Donnelly
Example of a legally impossible act
R v Donnelly
- stolen property returned to owner
- no offence to subsequently receive it
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.
What is the role of judge and jury when it comes to deciding matters of attempts?
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.
What three groups of offences do not allow for a prosecution in respect of an attempt?
- 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).
What elements must be proved for a successful attempts prosecution?
- Identity
- Intent to commit an offence
- Did, or omitted to do, something to achieve that end.
- That their act was proximite - sufficiently close.
Definition: Act
Act: To take action or do something, to bring about a particular result.
Definition: Omission
Omission: the action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.
What are some actions that are sufficiently proximate to constitute an attempt?
- 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 (observation) 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
What is the test for proximity as referenced by Simester & Brookbanks?
- 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.
When an act is considered to be 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.
List three situations where there is no defence to an ‘attempts’ charge.
- Prevented by some outside agent from doing something that was necessary to complete the offence.
- Failed to complete the offence due to ineptitude etc.
- An intervening event made it impossible eg, removal of property before intended theft.
