Attempts Flashcards
What section does attempts come under?
Section 72, Crimes Act 1961
Name the three ‘elements’ of an 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.
The suspect behaviour must satisfy all three conditions at a minimum to constitute an attempt.
Also it must be LEGALLY possible to commit the offence.
There is no requirement that it was PHYSICALLY possible for them to commit the offence.
R v Ring (1892) - MUST KNOW
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.
How is the intent of the offender decided in court?
Whether the intent exists or not is a question of fact; a question the jury decides.
Define: ‘Act’ and ‘Omission’
Both definitions come from the Oxford dictionary:
Act: To take action or do something to bring about a particular result.
Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.
Example (act): A doctor deliberately administers a substance to a patient that causes the patients death.
Example (omission): A doctor deliberately avoids administering a substance to a patient who is critically ill, when he knows that the substance would have saved the patient’s life.
What is the “all but” rule in regards to attempts?
To prove an attempt the accused must have done or omitted to some acts that are sufficiently proximate (close) to the full offence. Effectively the accused must have started to commit the full offence and have gone beyond the phase or mere preparation - this is the “all but” rule.
R v Harpur (2010) - MUST KNOW
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, thought not determinative.
ie, can view ALL of the accused’s actions leading up until they are stopped/caught. Not just each act individually. Ie, a sex offender grooms their victims over a period of time before going to meet them. They could be a long way away from committing a sexual offence when they first meet this person in real life, however with all the preparation complete the final step is all that remains.
Define: proximity
The determination of proximity is an inconclusive one and will come down to the individual circumstances of each case.
Ask yourself: Do the facts show mere preparation or are the defendants acts or mossions immediately or sufficiently proximate to the intended offence.
Simester and Brookbanks suggest two questions should be asked to determine the point at which an act of mere preparation MAY become an attmempt, what are they?
- Has the offender done anything more than ‘getting himself into a position’ from which he could embark on an actual attempt?
- Has the offender actually commenced execution, ie has he taken a step in the actual crime itself?
If yes to either, then there probably has been an attempt..
Elements that help determine proximity
Proximity is a question of law and will be decided by the judge based on the facts of each case.
When determining proximity, take into account the face, degree, common sense and seriousness of the offence. They should be looked at in their totality.
Higgins v Police (1984) - MUST KNOW
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 (1974) - MUST KNOW
A man bought hedge clippings believing they were cannabis
This was classed as an attempt (procured cannabis)
R v Donnelly (1970) - MUST KNOW
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 through the receiver may know that they property had previously been stolen or dishonestly obtained.
When an offence of attempt is complete, name three ways the accused may be stopped which DO NOT constitute as a legal defence.
- They were prevented by some outside agent from doing something necessary to complete the offence (ie, security guard, police)
- Failed to complete the full offence due to ineptitude, inefficiency or insufficient means.
- Were prevented from committing the offence because an intervening event made it impossible, ie removal of property before intended theft.
name three types of charges when you cannot charge someone with an attempt
- The criminality depends on recklessness or negligence, ie manslaughter.
- An attempt to commit an offence is included within the definition of the charge, ie assault
- The offence is such that the act has to have been completed in order for the offence to exist at all. ie demanding with menaces
