Attempts Flashcards
Attempts
(Liability)
Section 72 Crimes Act 1961
- With intent to commit an offence.
- Does or omits an act for purpose of accomplishing his or her object
- Is guilty of an attempt to commit the offence intended whether in the circumstances it was possible to commit the offence or not.
What are the three elements of an attempt offence?
Mens Rea - The intent to commit an offence.
Actus Reus - That they did, or omitted to do, something to achieve that end.
Proximity - That their act or omission was sufficiently close.
What is meant by sufficiency proximate is 72 (3) Crimes Act 1961 in relation to attempts?
The defendant must have done or omitted to do some acts that are sufficiently approximate to the offence. Effectively the defendant must have started to commit the full offence and gone beyond the phase of mere preparation.
Once an offender has committed an act that is sufficiently proximate to the full offence there are three situations that do not amount to a defence to the charge. What are they?
- They were prevented by some outside agent from doing something that was necessary to complete the offence for example interruption from police.
- They failed to complete the full offence due to ineptitude and efficiency or insufficient means e.g. insufficient explosives to blow apart the safe.
- They were prevented from committing the offence because an intervening event made it physically possible e.g. removal of property before intended theft.
When is an act physically or factual impossible?
An act is physically or factually impossible if the act is in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond the control.
When are you able to charge someone with an attempt to commit an offence?
- The criminal reality 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.
Matt gets angry at his mechanic and takes a swing at his face but misses him. What is Matt charged with?
Assault
Several acts together may constitute an attempt
His actions need not be considered in isolation. Sufficient evidence of his intent was available from the event leading up to that point.
What is the test for proximity suggested in semester and Brooke Banks?
- Has the offender done anything more than getting himself into position from which he could embark on an actual attempt, OR
- Has the offender actually commenced execution that is to say he has taken a step in the actual crime itself.
Example of legally impossible act
(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 though the receiver may know that the property had previously been stolen or dishonestly obtained.
Security guard decides to burgle own workplace drives to work to check alarm so he can burgle it later
His actions are mere preparation
Kara is a serial rapist. His MO is to talk to women online and meet them in a person where he subsequently rapes them. Susie an undercover police officer messages Kara and they plan to meet up at a local coffee shop. Kara arrives at the location and is immediately arrested is car liable.
Yes, he can be charged for attempted sexual violation is travelling to the location with the intent of raping her would be sufficiently approximate to the offence.
When is an act physically or factually impossible?
- R v Ring hand in empty pocket.
- Higgins v Police cultivates plants thinks they are cannabis
- Police v Jay hedge clippings thinks is cannabis
Examples of an attempt:
- Lying in wait, searching for or following the contemplates victim.
- Enticing the victim to go to the scene of the contemplated crime.
- Reconnoitring the scene of the contemplated crime.
- Unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed.
- Possessing, collecting or fabricating materials to be employed in the commission of the crime.
- Soliciting an innocent agent to engage in conduct constituting an element of the crime.
R v Harpur
In assessing the conduct there must be a full evaluation in terms of time, place and circumstances. What remains to be done is always relevant, but not determinative.
The court is permitted to focus on the defendants acts in relation to time, place circumstances; and less on preparation and proximity.
Roles of Judge and Jury
Judge
The judge must decide whether the accused had left the preparation stage and was already trying to effect the full offence. More than mere preparation.
Jury
The jury must decide whether the facts presented by by the crown have been proved beyond reasonable doubt. And if the acts were close enough to the full offence.
