Attempts I

Question 1

Attempt

Legislation

(1) Does or Omits

Answer 1

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.

Question 2

Attempt

Legislation

(2) Question whether

Answer 2

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

Question 3

Attempt

Legislation

(3) Immediately or Proximately

Answer 3

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.

Question 4

Definition of Offence/Crime

Answer 4

Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.

Question 5

Three elements of an attempt offence

Answer 5

1. Intent (mens rea) – to commit an offence
2. Act (actus reus) – that they did, or omitted to do, something to achieve that end
3. Proximity – that their act or ommission was sufficiently close

The suspect behaviour must satisfy all three conditions, at a minimum, to constitute an attempt.

Question 6

Legally possible to commit the offence

Answer 6

It must be legally possible to commit the offence, in the circumstances. A person can be convicted of an offence that was physically impossible to commit.

Question 7

Act(s) must be sufficiently proximate to the full offence

Answer 7

Section 72(3) CA61 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.

Question 8

The American Model Penal Code provide examples of acts that may constitute an attempt to commit an offence such as

Answer 8

1. Lying in wait, searching for or following the contemplated victim
2. Enticing the victim to go to the scene of the contemplated crime
3. Reconnoitring the scene of the contemplated crime
4. Unlawfully entering a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
5. Possessing, collecting or fabricating materials to be employed in the commission of the crime
6. Soliciting an innocent agent to engage in conduct constituting an element of the crime.

Question 9

The test for proximity

Answer 9

1. Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt? or
2. Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?

If the answer to either question is “yes” then we can say there has been an attempt as a matter of law. If not, the conduct can be classed as preparation and is not an offence.

Question 10

What must your proof in an attempt case

Answer 10

1. The identity of the suspect(s), and
2. They intended to commit an offence, and
3. They did, or omitted to do, something to achieve their object