Attempts Flashcards
Attempts section and statute
Section 72, crimes act 1961 (runs alongside the offence which was attempted)
Three elements of attempts
Case law has established the following three conditions that must apply for an ‘attempt’ conviction to succeed:
x intent (mens rea) – to commit an offence
x act (actus reus) – that they did, or omitted to do, something to achieve that
end
x proximity – that their act or ommission was sufficiently close
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.
Explain how act must be sufficiently proximate
Section 72(3) Crimes Act 1961 outlines that the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation – this is the “all but” rule.
R v Harpur
R v Harpur [2010] NZCA 319; (2010) 24 CRNZ 909
“[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.”
Explain impossibility in relation to attempts
This means a person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.
In these cases it was held that the offenders could be convicted of an attempt, because they acted with criminal intent.
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
Higgins v Police
Higgins v Police (1984) 1 CRNZ 187
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.
Police v Jay
Police v Jay [1974] 2 NZLR 204
A man bought hedge clippings believing they were cannabis.
R v Donnelly (legally impossible scenario)
R v Donnelly [1970] NZLR 980
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.
Therefore, the court decided that despite Donnelly’s mens rea and actus reus, it was legally impossible for him to receive stolen property as those goods were no longer deemed to be stolen. His conviction was set aside.
When is an attempt made?
Act is completed in sufficient proximity to intended offence.
The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
The defendant need not have taken all steps necessary towards completing the full offence. If the judge decides that the defendant’s actions were more than mere preparation, the case goes to the jury.
The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt 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 – that is, the prosecution’s evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence.
When can you not charge with attempts
You are not able to charge someone with an attempt to commit an offence where:
x The criminality depends on recklessness or negligence, eg manslaughter. x An attempt to commit an offence is included within the definition of that
offence, eg assault.
x The offence is such that the act has to have been completed in order for the
offence to exist at all. For example, demanding with menaces: it is the demand accompanied by the menace that constitutes the offence.
Penalty for attempts?
Not more than ten years for life imprisonment offences.
Not more than half the full sentence for any other offences
