Attempts

Question 1

Attempt Legislation (1) Does or Omits

Answer 1

S72 CA61 (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 Legislation (2) Question whether

Answer 2

S72 CA61 (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 Legislation (3) Immediately or Proximately

Answer 3

S72 CA61 (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

Three elements of an attempt

Answer 4

• 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 omission was sufficiently close/proximate

Also must be legally(not physically) possible to commit the offence

Question 5

Definition of Offence/Crime

Answer 5

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 6

Intent

Answer 6

May be inferred from the act itself and/or proved by what they said

Must be to commit full offence

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 7

Offence

Answer 7

They may be described as any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories described in s6, Criminal Procedures Act 2011.

Question 8

Act or Omission

Answer 8

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

Question 9

Examples of attempts (American Penal Code)

Answer 9

• lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• reconnoitring the scene of the contemplated crime
• unlawfully enterring a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
• possessing, collecting or fabricating materials to be employed in the commission of the crime
• soliciting an innocent agent to engage in conduct constituting an element of the crime

Question 10

Several acts together

Answer 10

R v Harpur

The court may have regard to the conduct viewed cumulatively up until 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 11

Test for Proximity

Answer 11

• 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 12

Elements that determine proximity

Answer 12

Fact

Degree

Common sense

Seriousness of the offence

Question 13

Examples of physical impossibility

Answer 13

• R v Ring (hand in empty pocket)
• Higgins v Police (cultivating tomato plants)
• Police v Jay (buying hedge clippings)

Other examples might include a person failing to force open a door due to being too weak, or because they were interrupted by attending Police.

Question 14

Example of legal impossibility

Answer 14

R v Donnelly (receiving returned stolen property)

Mistaken belief that act is illegal - selling Datura

Criminality depends on recklessness or negligence - eg manslaughter

Attempt already included - eg assault

Ultimate act required for offence to exist - demanding with menaces

Question 15

When an attempt is complete

Answer 15

Act completed sufficiently proximate to intended offence, even when the defendant changes their mind or makes a voluntary withdrawal afterward.

Question 16

Defence or lack of

Answer 16

• 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 17

Function of Judge and Jury

Answer 17

Judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.

Jury must decide whether the fact presented by the Crown have been proved beyond reasonable dought, 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.

Question 18

Prosecution

Answer 18

If charged with attempt, can only be convicted of attempt. (s150 CPA)

If charged with offence, can be convicted of attempt (s149 CPA)

Attempted to… (wording of offence)

…& s72 CA 1961

Question 19

Penalties

Answer 19

Unless expressly prescribed:

s311 CA 1961

10 years if offence is life imprisonment or

not more than half the max penalty

Question 20

What must be proved

Answer 20

1. Identity
2. Intent to commit offence
3. Did or omitted something to achieve their object