Attempts

Question 1

When is an act physical or factually impossible?

Answer 1

If the act in question amounts to an offence but is unable to be committed due to interruption, ineptitude or any other circumstances beyond their control

Question 2

What happens if you charge someone with the full offence but only an attempt is proven?

Answer 2

They can be convicted of that attempt

Question 3

What questions should be asked when determining the point at which preparation may become an attempt?

Answer 3

-Has the offender done anything more than getting himself into a position from which they could embark on an actual attempt
or
-Has the offender actually commenced execution, have they taken a step in the actual crime itself

Question 4

What constitutes sufficiently proximate?

Answer 4

Where the accused has started to commit the full offence and has gone beyond the phase of mere preparation

Question 5

What case law relates to legally impossible?

Answer 5

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 6

What is the function of the judge and jury?

Answer 6

The judge decides whether the defendant had left the preparation stage and was trying to effect completion or not.
If yes the matter goes to the jury to decide if the prosecution have proven their case beyond reasonable doubt that the defendant intended to commit the full offence.

Question 7

What happens if you charge someone with an attempt and the full offence is proven?

Answer 7

The can only be convicted of the attempt

Question 8

Who decides whether an act or omission is proximate to the offence?

Answer 8

The judge

Question 9

Case law relating to multiple acts being viewed together?

Answer 9

R v Harpur
The court may have regards to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered and it’s entirety. Considering how much remains to be done is always relevant, though not determinative.

Question 10

What is the penalty for an attempt?

Answer 10

-Where a punishment is not specifically described by this act and the punishment for the offence attempted is life then the maximum sentence for an attempt is 10 years.
In any other case is liable for not more than half the maximum punishment of the offence attempted.

Question 11

If the defendant does an act that is sufficiently proximate they have no defence that they….?

Answer 11

• Were prevented by some outside agent from doing something that was necessary to complete the offence
• Failed to complete the offence because of ineptitude, inefficiency or insufficient means
• were prevented from committing the offence because an intervening event made it physically impossible

Question 12

What case law relate to physically impossible attempts?

Answer 12

Higgins v Police
Where plants been cultivated as cannabis and not infect 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

and Police v Jay
A man bought hedge clippings believing they were cannabis

Question 13

Definition of attempt

Answer 13

Everyone who having an intent to commit an offence, does or omits an act for the purpose of accomplishing their objective, is guilty of an attempt to commit the offence intended, whether it was possible in the circumstances to commit the offence or not.

Question 14

What must be possible for the offence to be committed?

Answer 14

It must be legally possible, it does not need to be physically possible.

Question 15

Definition of an act

Answer 15

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

Question 16

Definition of omission

Answer 16

the action of excluding or leaving someone or something, a failure to fulfill a moral or legal obligation

Question 17

Can you attempt to attempt an offence?

Answer 17

No

Question 18

When can’t you charge someone with an attempt?

Answer 18

• The criminality depends of recklessness or negligence
• An attempt to commit the offence is included in the definition of that offence
• The offence must be completed for the offence to exist at all

Question 19

How can an offenders intent be inferred in relation to an attempt?

Answer 19

From the act itself

Proved by admissions or confessions

Question 20

What is the definition of proximity?

Answer 20

There isn’t one and it will come down to the circumstances of each individual case.

Question 21

What are examples of acts that may constitute an attempt?

Answer 21

• Lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• Doing reconnaissance on the scene of the contemplated offence
• unlawfully entering a structure, vehicle or enclosure in which it is contemplated to commit the crime
• possessing, collecting or fabricating materials to be used in the commission of the crime
• Soliciting an innocent agent to engage in conduct constituting an element of the crime

Question 22

How can acts be viewed together in relation to preparing to commit an offence?

Answer 22

When acts are viewed in isolation they may be seen as preparatory but when viewed together they may take on a different context and therefore amount to a criminal attempt

Question 23

Case law relating to inferring intent from the act.

Answer 23

R v Ring
In this case the offenders intent was to steal property by putting his hands 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 24

When is an act legally impossible?

Answer 24

When the completed act would not be an offence even if the person mistakenly believes that it is an offence.

Question 25

When is an act done or omitted with intent to commit an offence?

Answer 25

It may constitute an offence if it is immediately or proximately connected with the intended offence, whether or not there was an act showing the intent to commit an offence with no doubt.

Question 26

What are the three conditions which must apply for an attempt conviction to succeed?

Answer 26

• Intent - to commit the offence
• Act - whether they did or omitted to do something to achieve that end
• Proximity - that their act or omission was sufficiently close

Question 27

in the term “whether in the circumstances it was possible to commit the offence or not” what does the wording refer to?

Answer 27

It refers to a physical or factual impossibility not a legal impossibility.