Attempts Flashcards
Attempts
a person must:
-Intend to commit the offence
-Take a real and substantial step towards achieving that aim
R V HARPUR
An attempt includes an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime
CA.61 S.72(1)
Everyone 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.
CA.61 S.71(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.
CA.61 S.71(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.
Intent
In a criminal law context there are two types of intent:
- Intention to commit the act
- Intention to get a specific result
Explain a Deliberate Act
Intent means that act or ommission must be done deliberately. The act or omission must be more than involuntary or accidental.
Explain an Intent to produce a result
SIMESTER AND BROOKBANKS
In this context result means “aim, object, or purpose”.
ie. act of using document and aim of obtaining pecuniary advantage or other elements.
How do you prove intent?
Offender admissions are good,but support these with circumstantial evidence from which their intent can also be inferred such as: (ACN)
- Offenders Actions and words before, during and after the event
- surrounding Circumstances
- Nature of the act
How to prove attempted sexual violation
- Intend to have SC with complainant
- Complainant did not consent to the intended SC
- Defendant did not believe on RG complainant was consenting
Explain when an act becomes and attempt
The defendant must have progressed past the stage of preparation and started a process intended to lead to the commission of the full offence. The conduct must amount to a real and practical step towards the actual commission of the crime.
Refer R V HARPUR
Explain sufficiently proiximate
the court will make a cumulative assessment of the defendants conduct at the relevant time in conjunction with any steps taken leading up to that point to infer intent. They may still be several steps away from the ultimate act.
Refer R V HARPUR
Case law regarding attempts
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 it entirety. Considering how much remains to be done is always relevant, though not determinative.
Describe examples of attempts from the American Model Penal Code, that may constitute an attempt
- Lying in wait, searching for or following the contemplated victim
- enticing the victim to g to the scene of the contemplated crime
- reconnoitering the scene of the contemplated crime
- unlawful entry of a structure, vehicle, or enclosure of the contemplated scene of the crime
- possession, collection or fabrication of materials to e employed in the commission of the offence
- soliciting an innocent agent to engage in conduct constituting an element of the offence
Example of when you would charge under S.129(2)
- An offender assaults complainant because they are intent on having intercourse with the complainant and obtaining the complainants consent for that.
- As an alternative charge of attempted sexual violation where proximity between assault and completion of intended sexual violation is an issue.
What is the difference between the subsections of S.129
- An attempt to commit Sexual Violation does not necessarily involve and assault
- An assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an attempt.
