Attempts Flashcards
Discuss the findings regarding inferring intent from the act and an act being physically or factually impossible in case law.
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.
Explain the concept of proximity.
The accused must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the “all but” rule.
Discuss the case law regarding several acts together constituting an attempt.
Sex case:
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.”
Discuss the findings regarding a legally impossible act in case law.
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.
Explain the function of the judge and jury surrounding attempts.
The judge must decide whether the accused had left the preparation stage and was already trying to effect completion of the full offence. 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. If the jury finds that the actus reus has been established, it must also find the same in respect of the mens rea.
What is the wording of the offence? Provide Act, Section, Subsection.
Section 72(1), Crimes Act 1961
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.
What are the elements of an attempt offence?
- 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
Additionally there is the requirement that it must be legally possible to commit the offence, in the circumstances. A person can be convicted of an offence that was physically impossible to commit.
Once the acts are sufficiently proximate, what are the three defences that the defence no longer has?
That they
• were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosive to blow apart a safe
• were prevented from committing the offence because an intervening event made it physically impossible, eg removal of property before intended theft.
Discuss the concept of physical and factual impossibility using case law.
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.
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.
Outline the penalties for attempts.
Life = 10yrs; everything else is half
