Attempts Flashcards
Attempts
What is the definition of attempts?
Cite legislation
Give ingredients
What does 72(2) say about intent?
Crimes Act 1961
72 Definition of attempts
(1) 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.
(2) 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.
Attempts
What three elements doe the crown have to prove in order to prove and attempt?
- 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 ommission was sufficiently close
Attempts - Intent
What can be used to infer intent?
Attempts - Intent
- Offender’s actions
- Offender’s speech
- Circumstantial Evidence
- Admissions
Inferring intent from the act
Cite the case law which relates to this
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.
Intent
Is intent a question of fact or a question of law
Who decides if intent was present?
Intent is a question of fact - decided by the jury
Attempts
Explain the ‘all but’ rule
The actions of the offender must be sufficiently approximate to the full offence to more from ‘mere preparation’ to ‘attempts’
ie “All but committed the offence”
(refer written study notes)
Preparation vs attempts
While an offender’s acts in isolation may ammount to preparation, what case law allows the Crown to look at an offender’s prep in its entirety in order to move the view from prep to attempts?
Cite it
_R v Harpur _
[The Court may]”have regard to the conduct viewed cumulatively up to the point when 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.”
The test for proximity
What is the test for helping determine proximity?
The test for proximity
1) Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
2) Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
If not, the conduct can be classed as preparation and is not an offence.
Proximity
Is proximity a question of law or a question of fact?
Who decides if an offender’s actions are sufficeintly proximate to the full offence?
Proximity is a question of law however the actual proving of ‘attemtpts’ is a question of fact.
Judge - proximity
Jury - attempt
Impossibility
What is the case law for physically (factually) impossible offences ?
**Physically impossible - **
R v Ring
_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 possible to commit the offence of attempting to cultivate cannabis.
_Police v Jay _
A man bought hedge clippings believing they were cannabis
Impossibility
When is an attempted offence legally impossible?
Give the case law for legally impossible
When the completed act would not be an offence
eg
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.
Attempts - Defences
What are the 3 ‘no defence if’ points outlined in class relating to attempted offencess?
No defence if:
1) Full act was not complted due to an outside agent complteting the full offence eg Police
2) Failed to complete due to ineptitude or insufficient means eg can’t break a door
3) Intervention of an unseen event which prevents full act eg flooding
Attempts
When is an attempt complete?
Act completed sufficiently proximate to intended offence
An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence.
Attempts
What is the main function of the judge?
What is the main function of the jury?
If the judge decides that the defendant’s actions were more than mere preparation, the case goes to the jury.
The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendant’s acts are close enough to the full offence.
Crown must prove both acts and intent
Attempts
When can you not charge for attempts?
When can you not charge for attempts?
1) When the full offence requires an element of recklessness eg manslaughter
2) When the attempts for the full offence is defined in the definition of that offence eg assault
3) The full offence must be committed in order for there to be an offence at all eg demands with menaces.
