Attempts

Question 1

Attempts Legislation

Sectio 72, Crimes Act 1961

Answer 1

Section 72
Crimes Act 1961

(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
(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
(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximate connected with the intended offence whether or no there was any act unequivocally showing the intent to commit that offence

Question 2

What are the 3 elements of an attempt offence

Answer 2

• intent to commit and offence (mens rea)
• did or omitted to do something to achieve that end (actus reus)
• sufficiently proximate

• identity of the offender

Must be legally possible to commit the offence in the circumstances

Question 3

How to prove intent

Answer 3

• from the act itself (what they did)

* admissions or confessions

Question 4

R v Ring

Answer 4

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 5

Whether intent exists or not is a question of fact decided by who

Answer 5

The jury

Question 6

Explain the meaning of sufficiently proximate

Answer 6

The accused must have started to commence the full offence and have gone beyond the phase of mere preparation

Question 7

Examples of acts that may constitute an attempt

American Model Penal Code

Answer 7

• lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplate crime
• reconnoitring the scene of the contemplated crime
• unlawfully entering 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 8

R v Harpur

Answer 8

The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinant

Question 9

The test for proximity

Answer 9

• 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 he has taken a step in the actual crime itself

Question 10

Proximity is a question of law decided by who

Answer 10

The judge……based on the assumption that the facts of the case are proved

Question 11

When is an act physically or factually impossible

Answer 11

If the act in question amount to an offence but the suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond their control

Question 12

Higgins v Police

Answer 12

Where plants being cultivated as cannabis are not in fact 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

Question 13

Police v Jay

Answer 13

A man bought hedge clippings believing they were cannabis

Question 14

When is an act legally impossible

Answer 14

Where the completed act would not be an offence

Question 15

R v Donnelly

Answer 15

Where stolen property has been returned to the owner of 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 the the property had previously been stolen or dishonestly obtained

Question 16

When is an attempt complete

Answer 16

After completing an act that is sufficiently proximate to the intended offence

Complete even when the defendant changes their mind or make a voluntary withdrawal

Question 17

Once the acts are sufficiently proximate the defendant has not defence to an attempt charge in what 3 circumstances

Answer 17

• prevented by some outside agent from doing something that was necessary to complete the offence (interruption from police)
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means (insufficient explosive to blow apart safe)
• prevented from committing the offence because an intervening event made it physically impossible (removal of property before intended theft)

Question 18

What is the function of the judge and jury

Answer 18

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

If decided actions were more than mere preparation the case goes to the jury

JURY
Must decide whether the facts presented by the crown have been proved beyond reasonable doubt and if so must next decide whether the defendants acts are close enough to the full offence

Must be convinced beyond reasonable doubt that the defendant intended to commit the full offence

Question 19

When are you not able to change someone with an attempt to commit an offence

Answer 19

• the criminality depends on recklessness or negligence, eg. manslaughter
• an attempt to commit an offence is included within the definition of that offence eg. assault
• the offence is such that the act has to have been completed in order for the offence to exist at all, eg. demanding with menaces