Attempts

Question 1

1. What is meant by sufficiently proximate is 72(3) CA61 in relation to attempts?

Answer 1

Effectively, the defendant must have started to commit the full offence and gone beyond the phase of mere preparation.

Question 2

2. Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defence to the charge. What are they?

Answer 2

• They were prevented by some outside agent from doing something that was necessary to complete the offence, e.g., interruption from police.
• They failed to complete the full offence due to ineptitude, inefficiency or insufficient means, e.g., insufficient explosives to blow apart a safe.
• They were prevented from committing the offence because an intervening event made it physically impossible, e.g., removal of property before intended theft.

Question 3

3. When is an act physically or factually impossible

Answer 3

the suspect is unable to commit it due to interruption, ineptitude or any other circumstance beyond their control.

Question 4

4. What are the three elements of an attempt offence?

Answer 4

• Mens Rea – the intent to commit an offence
• Actus Rea – that they did, or omitted to do, something to achieve that end
• Proximity – that their act or omission was sufficiently close

Question 5

5. When are you unable to charge someone with an attempt to commit an offence?

Answer 5

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

Question 6

6. Matt gets angry at his mechanic and takes a swing at his face but misses him. What Matt charged with?

Answer 6

• Assault

Question 7

7. Several acts together may constitute an attempt

Answer 7

actions need not be considered in isolation;

sufficient evidence of intent is available from the events leading up to that point

Question 8

9) Example of legally impossible act (R v Donnelly)

Answer 8

• 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.

Question 9

4) What was held in R v Ring in relation to attempts

Answer 9

• 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.

Question 10

5) R v HARPUR

Answer 10

• 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 considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.

Question 11

6) What was held in HIGGINS v Police in relation to impossibility in attempts

Answer 11

• 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 12

7) What was held in Police v Jay in relation to impossibility in attempts

Answer 12

• A man bought hedge clippings believing they were cannabis.

Question 13

8) What was held in R v DONNELLY in relation to attempts and legal impossibility

Answer 13

• 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.