Attempts

Question 1

Attempts

Answer 1

s72 C.A 61
Section does not create attempt offences. Offences only created when specific act provide punishment. Example section 173 of the crimes act 1961 provides punishment for attempted murder.

Question 1

Legislation of Attempts

Answer 1

1. Everyone having the intent to commit an offence does or omits act for purpose of accomplishing objective, is guilty of attempt whether or not in the circumstances it was possible to commit the offence or not.
2. The question whether the act done or omitted with intent to commit, is or is not only preparation is the question of law.
3. An act done or omitted with intent to commit may constitute attempt if it is immediately or proximately connected with the intended offence whether or not any act unequivocally showing intent to commit.

Question 2

Elements

Answer 2

The following three conditions must apply
1. Intent (mens rea)
2. Act (actus reus)
3. Proximity - act/omission sufficiently close.
Additionally, there’s a requirement that it must be legally possible to commit the offence. The person can be convicted even if it is physically impossible to commit.

Question 3

Intent established

Answer 3

Mens rea is Latin for guilty mind and refers to intent or knowledge of wrongdoing that constitutes part of the crime. When proving attempt to commit the offence, it must be shown the accused intention was to commit the substantive offence.
The requirement for intent in section 72(1) suggests intention to commit the offence only will be sufficient. They cannot be an attempt where the offence is defined solely in terms of recklessness or negligence.

Question 4

R v Ring
(Inferring intent from the act)

Answer 4

Offenders intent was to steal property by putting his hand into the victims pocket. Unknowing to him the pocket was empty. Despite this the offender still able to be convicted of attempted theft because the intent to steal was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.

Question 5

Offence defined

Answer 5

Offence and crime awards used interchangeably in statute. There is no material difference and may be described as any act or omission punishable on conviction under any enactment.

Question 6

Act defined

Answer 6

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

Question 7

Omission defined

Answer 7

Excluding or leaving out someone/something a failure to fulfil a moral or legal obligation.

Question 8

Actus reus

Answer 8

Does or omits and act for purpose of accomplishing his object. Refers to physical conduct of the element. Latin meaning guilty act.

Question 9

Sufficiently proximate

Answer 9

s72(3) C.A 61
Accused must have done or admitted to do some act that is/sufficiently proximate to the full offence. Must be beyond mere preparation. Use the ‘all but’ rule.

Question 10

Examples of attempt actions

Answer 10

The American penal code outlines examples for actions amounting to attempt.
1. Laying in wait
2. Enticing victim to contemplated scene.
3. Reconnoitring the contemplated scene.
4. Unlawfully entering structure/vehicle/enclosure which contemplated scene of offence to be committed.
5. Possessing, collecting, fabricating materials for contemplated offence
6. Soliciting innocent agent to engage in conduct constituting element of the crime

Question 11

R v Harpur

Answer 11

Having regard to the conduct viewed cumulatively, up to the point when conduct and questions stops, defendants conduct may be considered in its entirety. Considering how much remains as always relevant, they’re not determinative.

Question 12

Proximity

Answer 12

Determination as an inconclusive one and comes down to circumstances as they exist for the individual offence. Ask yourself do facts show mere preparation or is the act or omissions immediately or sufficiently proximate to the intended offence.

Question 13

Test for proximity

Answer 13

Simester and BrookeBanks suggest asking two questions to assist if they’ve moved past me preparation to an attempt. Has the offender done anything more than getting into position? Or has the offender actually commenced execution and taking a step in the actual crime?

Question 14

s72(2) C.A 61

Answer 14

Outlines proximity is a question of law And is decided by a judge based on assumption that facts of the case are proved.

Question 15

Elements to determine proximity

Answer 15

No clear definition when act is proximately or immediately connected to the offence or mere preparation. Take into consideration fact, degree, common sense and seriousness of offence.

Question 16

Impossibility

Answer 16

The wording and statute whether in circumstances it was possible to commit the offence or not. Refer to physical or factual impossibility and not illegal impossibility. Meaning the person can be convicted of an offence that was physically impossible to commit but cannot be convicted of an offence that was legally impossible to commit.

Question 17

Higgins v Police (impossibility)

Answer 17

Plants being cultivated as cannabis but are not actually cannabis, it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, possible to commit the offence of attempting to cultivate cannabis.

Question 18

Police v Jay (impossibility)

Answer 18

Man bought hedge clippings believing they were cannabis.

Question 19

Act legally impossible

Answer 19

Where the completed act is legally impossible it would not be an offence. Suspect cannot be convicted of an attempt even where they may have had criminal intent. They may believe the act is illegal but they mistaken in that belief. There must be an attempt to commit an actual offence.

Question 20

R v Donnelly (legally impossible)

Answer 20

Stolen property has been returned to the owner or legal title to any such property has been acquired, and is not an offence to subsequently receive it. Even though receiver may know property had previously been stolen or dishonestly obtained.

Question 21

When attempt complete

Answer 21

Attempt is complete even when defendant changes their mind or makes a voluntary withdrawal after completing sufficiently approximate act. Once act are sufficiently proximate the defendant has no defence that, 1. they were prevented by some outside agency,
2. they failed to complete the offence due to ineptitude an efficiency or insufficient means,
3. they were prevented from committing the offence because of intervening event.

Question 22

Prosecution

Answer 22

You are unable to charge someone with attempt where the criminality depends on recklessness or negligence, the attempt is included within the definition of their offence, or the offence is such that it doesn’t exist without the full completion.

Question 23

Penalties

Answer 23

Several provisions provide for express penalties for attempts, where no punishment expressly provided the penalty section to be applied as s311(1)

Question 24

s311(1) C.A 61

Answer 24

Everyone who attempts to commit an offence and respect of which no punishment is expressly prescribed in the act, is liable for imprisonment for term not exceeding 10 years if the max penalty for the full offence is life imprisonment. Any other cases, liable to no more than half the maximum penalty for the full offence.