Attempts Flashcards
What does s344A of the Crimes Act provide?
Section 344A of the Crimes Act provides the penalty for attempt offences. Despite “attempts” remaining a common law offence, s344A gives statutory recognition by providing the penalty (as in larceny).
344A Attempts
(1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act (LIMITED TO CRIMES ACT OFFENCES) shall be liable to that penalty.
(2) Where a person is convicted of an attempt to commit an offence and the offence concerned is a serious indictable offence the person shall be deemed to have been convicted of a serious indictable offence.
What is an “Attempt” as per Haughton v Smith [1973].
Houghton v Smith - “an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted”.
Attempt comprises of 2 basic elements. What are they?
Mens Rea (guilty intent) and Actus Rea (voluntary guilty act).
Attempt offences require Mens Rea. This requisite intent is required and was examined in which cases?
Whybrow: Intent becomes the principle ingredient of crime
R v Mohan [1975]: Proof of specific intent
Knight v R [1992] HCA: is an intention to complete the complete offence.
R v Mohan
Proof of specific intent
Knight v R [1992] HCA.
Is an intention to commit the complete offence.
What did the case of R v Eagleton find in relation to Actus Reus?
“The mere intention to commit a misdemeanour is not criminal - some act is required; and we do not think that all at towards committing a misdemeanour are indictable. Act remotely leading towards the commission of the offence are not to be considered as attempts to commit it but acts which are immediately connected with it are, …”
What did Davey v Lee find in relation to Proximity?
“It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step toward the commmission of the specific crime, which is immediately and not remotely connected with the commission of it, and the doing of which **cannot reasonably be regarded as having any other purpose than the commission of the specific crime”.
DPP v Stonehouse is the leading (English) case in relation to proximity. What did Lord Diplock find in DPP v Stonehouse in relation to proximity?
.. “Acts which are merely preparatory to the commission of the offence … are not sufficiently proximate to constitute an attempt”.
What did Brinkworth v Zimmer find in relation to proximity?
“…amounting to more than mere preparation and as bearing a sufficiently proximate relationship to the commission of the crime”.
Impossibility of Achievement
Rv Donnelly: Turner’s 6 categories were adopted in Lord Hailsham’s address on impossibility
The controversial aspect was the 5th categories which was fixed by statute in NZ and England but was still good law in Australia until the decisions of Britten v Alpogut & R v MAI and Anor (impossibility is no longer available as a defence to a charge of attempt).
What are Turner’s 6 categories regarding Impossibility of Achievement?
He who sets out to commit a crime may in the event fall short of the complete commission of that crime for any one of a number of reasons:
- He may, of course, simply change his mind before committing an act sufficiently overt to amount to an attempt.
- He may change his mind but too late to deny that he had gone so far as an attempt.
- He may be prevented by some outside agency from doing some act necessary to complete the commission of the crime - as when a police officer interrupts him while he is endeavouring to force the window open, but before he has broken into the premises
- He may suffer no such outside interference, but may fail to complete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy which he has brought with him may not be strong enough to force the window open
- He may find that what he is proposing to do is after all impossible - not because of insufficiency of means, but because he is for some reason physically not possible, whatever means is adopted. He who walks into a room intending to steal, say a specific diamond ring, and finds that the ring is no longer there, but has been removed by the owner to the bank, is thus prevented from committing the crime which he intended, and which, but for the supervening physical impossibility imposed by events he would have committed.
- He may, without interruption, efficiently do every act which he set out to do, but may be saved from criminal liability by the fact that what he has done contrary to his own belief at the time, does not after all, in law, amount to a crime.
Category 5 of Turner’s 6 categories was controversial and was fixed by statute in NZ and England. However, Category 5 remained good law in Australia until which decisions?
Britten v Alpogut (not binding in NSW - persuasive only)
and
R v Mai (1991)
What did the case of R v Mai find in relation to Impossibility?
.. facts… a quantity of heroin arrived in unaccompanied luggage (30 packets totalling 6.9kg). The luggage was inspected and the majority of the heroin substituted with plaster of Paris by police. 10 packets were left with 5g of heroin in each to allow a controlled delivery to be made. Tran collected the luggage from a Bondi motel room. There was evidence of association between Mai and Tran. The next day, the deft Mai was apprehended with one of the 30 blocks from the suitcase… but it contained no heroin. This possession was the basis of a charge of attempt possess by Mai and he was convicted.
On appeal the defence argued that as plaster is not a drug, there was in law no crime committed - ie: “impossibility” argument.
The NSWCCA held “in my view, I am satisfied that the law laid down in BRITTEN v ALPOGUT, as I earlier sought to interpret it in relation to the general law of attempt, is correct and should be followed generally in NSW - for the reasons given by the Full Court of Victoria”.
THEREFORE: Impossibility is no longer a defence to a charge of attempt, except in those most limited circumstances where a person is attempting by conduct to commit what is believed to be a crime, but which in reality is not. (Turner’s 6th category).
What did the 1987 case of Britten v Alpogut find in relation to Impossibility?
This was a Victorian decision and was not binding in NSW until Mai v Tran.
In this case, the Deft was charged with attempting to import prohibited imports contrary to Section 233B of the Customs Act. The evidence led before the trial revealed that the defendant intended to and in fact believed that he was importing a quantity of cannabis contrary to the Act. In fact, the substance was not cannabis but was found to be procaine which is not a prohibited import. The substance was found concealed in 12 packages in a false bottom of a suitcase carried by the Defendant.
“In my opinion, it can be said that before Haughton v Smith the law of attempt punished a manifest criminal intention to commit a crime which was not accomplished. For some inexplicable reason the law of attempt became involved with the question of whether or not the crime attempted could have been in fact accomplished by the accused”.
