Attempts Flashcards
Attempts.
Legislation.
Subsection (1).
Sec 72(1) CA61
“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.”
Attempts.
Legislation.
Subsection (2).
Sec 72(2) CA61
“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.”
Note: Decided by a judge.
Attempts.
Legislation.
Subsection (3).
Sec 72(3) CA61
“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.”
Attempts.
Case Law.
R v Ring.
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.
Offence / Crime.
Definition.
Offence and crime are interchangeable terms.
They are any act or omission that is punishable, on conviction, under any enactment.
Offences are demarcated into four categories described in Sec 6, Criminal Procedures Act 2011.
Case Law.
Attempts.
R v Harpur.
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 its entirety. Considering how much remains to be done is always relevant, though not determinative.”
Note: Independent acts, when viewed in isolation, can be construed as preparatory. When the same acts are viewed collectively, they can take on a different context and therefore amount to a criminal attempt.
Attempts.
Case Law.
Police v Jay.
Police v Jay.
“A man bought hedge clippings believing they were cannabis.”
Attempts.
Case Law.
R v Donnelly.
R v Donnelly
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.
Examples of attempts.
- 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.
Attempts.
Tests for proximity.
The following questions should be asked in determining the point at which an act of mere preparation may become an attempt:
• 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 taken a step in the actual crime itself?
Attempts.
Case Law.
Higgins v Police.
Higgins v Police.
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.
Attempts.
Elements of an attempt.
Intent (mens rea) to commit and offence.
Act (actus reus) something done / omitted to achieve the intended end.
Proximity - act or omission was sufficiently close to the full offence.
Attempts.
Roles of judge and jury.
Judge - Decides on proximity. A matter of law.
Jury - Decides if intent exists and if actus reus was actually committed. Matters of fact.
Attempts.
Circumstances where you are unable to charge with attempt.
- Criminality depends on recklessness or negligence. eg. manslaughter.
- An attempt is included in the definition of the offence itself. eg. assault.
- The act needs to be completed for there to be an offence. eg. demands with menaces.
Attempts
Note: Conviction and sentencing
A defendant charged with the full offence may be convicted of an attempt. However, the reverse is not true.
Penalty: Sec 311(1) CA 61. 10 years for life imprisonment offences. Otherwise half penalty.
