Attempts Flashcards
Attempt
S72 CA 1961
(1) Everyone who, having intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt, whether in the circumstances it was possible to commit the offence or not
(2) The question whether an act done or omitted with intent to commit offence is only preparation for that offence is a question of law
(3) 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
Elements of an Attempt
Intent (men’s Rea) - to commit an offence
Act (actus Reus) - they did, or omitted to do, something’s to achieve purpose
Proximity - their act or omission was sufficiently close
The offence must be legally possible to commit.
R v Ring
In this case the offenders intent was to steal proper by putting his hand into the pocket of the victim. Unbeknownst the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever might have been in the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied
R v Harpur
The court may have regard to the conduct viewed cumulatively up to the point the conduct stops…it may be considerate in it’s entirety. What remains to be done is relevance, but not determinative.
Physically or factually impossible act
An act is physically or factually impossible if the act amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude or circumstances beyond their control
Higgins v Police
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 possibly to commit the offence of attempting to cultivate Cannabis
R v Jay
A man bought hedge clippings believing they were cannabis
Legally impossible act
When an act is legally impossible, is where completing the act is not actually an offence, the suspect cannot be convicted of an attempt, even if they had criminal intent.
R v Donnelly
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 thought the receiver may know that the property had previously been stolen or dishonestly obtained
Attempt complete?
Attempt is complete even if they change their mind or voluntary withdraw after completing an act that is sufficiently Proximate.
Once sufficiently Proximate no defence that they
- were prevented by some outside agent from doing something necessary to complete the offence eg interruption
- failed to complete due to ineptitude eg not enough explosive
- were prevented because an intervening act made it impossible eg property removed before theft
Function of judge and jury (attempt)
Judge must decide whether defendant had left the preparation phase and was trying to complete offence.
If so the case goes to the jury.
The jury must then decide if the facts presented by crown are proven BRD, and if so the act were close enough to the full offence.
The jury must also find BRD that the full offence was intended
Unable to charge with attempt
Where the criminality depends on recklessness or negligence eg manslaughter
An attempt is included in the offence definition eg assault
The offence is such that it must have been completed to exist at all eg demanding with menace
Penalty for attempts
S311(1)
Where no punishment for an attempt is expressly described, liable to 10 years if the maximum penalty for the offence is life, of half the maximum penalty in other cases
S150 Criminal Procedure Act
Where a defending is charged with an attempt, yet the full offence is proved, they can only be convicted of the attempt
