ATTEMPTS Flashcards
Attempt Legislation (1) offence
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.
Attempt Legislation (2) Question whether
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
Attempt Legislation (3) Immediately or Proximately
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.
R v Ring
R v Ring - Attempted Theft (Physical impossible, legally possible)
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.
Definition of Offence/Crime
Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.
R v Harpur
R v Harpur - Conduct
“[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.”
Police v Jay
Police v Jay - Hedge clippings (Physical impossible, legally possible)
A man bought hedge clippings believing they were cannabis
R v Donnelly
R v Donnelly - (Physically possible, legally impossible)
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.
The Test for Proximity
- Has the offender done anything more than ‘getting himself in a position’ from which he could embark on an actual attempt?
- Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
Proximity is question of law, decided by judge
Function of judge and jury
Judge decides if act is proximate or immediate to offence. (left preparation and attempting to commit)
Jury decides if crown proved facts beyond reasonable doubt. If defendant had mens rea intent and actus reus actually took the steps as alleged.
Explain Principal versus secondary offender
principal - actually commits offence, satisfies both actus reus and mens rea
Secondary Assist principal offender before or during commission of offence.
Identify two exceptions of passive presence
Army senior watches assault. Husband watches wife and kids drown.
Discuss Legal Duty
The special relationship is dependant on the person who would be a secondary party having legal duty to act and a right or power of control over the principal offender. Husband and wife, Army sergeant.
