Attempts

Question 1

Attempt

S72(1)CA61

Answer 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.

Question 2

Attempt

S72(2)CA61

Answer 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.

• Decided by a judge

Question 3

Attempt

S72(3) CA61

Answer 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,

whether or not there was any act unequivocally showing the intent to commit that offence.

Question 4

Elements of an attempt

What you must prove

Answer 4

• identity of the suspect
• intent - to commit an offence
• act – that they did, or omitted to do, something to achieve that end
• proximity – that their act or ommission was sufficiently close

All three must be present, must be legally possible but can be physically impossible

Question 5

R v Ring

Attempted Theft

(Physical impossible, legally possible)

Answer 5

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.

Question 6

Definition of Offence/Crime

Answer 6

Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.

Question 7

Act or Omission

Definition and example

Answer 7

Act: To take action or do something, to bring about a particular result.

Example: (Act)
A doctor deliberately administers [the act] a substance to a patient that causes the patient’s death.

Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

Example: (Omission)
A doctor deliberately avoids administering [the omission] a substance to a patient who is critically ill, when he knows that the substance would save the patient’s life.

The purpose of the act or omission must be so that the offence can be facilitated.

Question 8

Intent

A question of fact

Answer 8

Whether that intent exists or not is a question of fact; a question that the jury decides.

Question 9

Acts must be sufficiently proximate

Answer 9

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.

Question 10

Acts that may constitute an attempt

Answer 10

• lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• reconnoitering the scene of the contemplated offence

• unlawful entry of a structure, vehicle or enclosure in which it is
contemplated that the offence will be committed

• possession, collection or fabrication of materials to be employed in the commission of the offence
• soliciting an innocent agent to engage in conduct constituting an element of the offence.

Question 11

R v Harpur

Conduct

Answer 11

“[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.”

Question 12

Test for Proximity

Answer 12

• Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?

Question 13

Impossibility

Answer 13

A person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.

Question 14

Higgins v Police

Cannabis cultivation

(Physical impossible, legally possible)

Answer 14

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.

Question 15

Police v Jay

Hedge clippings

(Physical impossible, legally possible)

Answer 15

Police v Jay

A man bought hedge clippings believing they were cannabis

Question 16

R v Donnelly

Physically possible, legally impossible

Answer 16

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.

Question 17

When an attempt is complete

Once the acts are sufficiently proximate, the defendant has no defence that they:

Answer 17

• 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.

Question 18

Function of the Judge and Jury

Answer 18

The judge must decide whether the defendant 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.

Question 19

Situations where you are unable to charge someone with an attempt

Answer 19

• The criminality depends on recklessness or negligence, eg manslaughter.

• An attempt to commit an offence is included within the definition of that
offence, eg assault.

• The offence is such that the act has to have been completed in order for the offence to exist at all. For example, demanding with menaces: it is the demand accompanied by the menace that constitutes the offence.