Attempts -Lesson Notes Flashcards
Three elements required for an attempt offence
intent - mens rea - to commit an offence
act - actus reus - that they did or omitted to do something to achieve that end
proximity - that there act or omission was sufficiently close
Actus Reus
Does or omits an act for the purpose of accomplishing his object, is the Latin term for guilty act
Mens Rea
Guilty mind, refers to the intention of knowledge of wrongdoing that constitutes part of a crime
Act must be sufficiently proximate to the full offence
Generally to prove an attempt the accused must have don or omitted to do some act that is/are sufficiently proximate (close) to the full offence. Gone beyond the phase of mere preparation.
Action, Section, legislation of attempts
Crimes Act 1961
72 Definition of attempts
(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.
What are the three elements of an attempt offence
- intent (mens rea) – to commit an offence
- act (actus reus) – that they did, or omitted to do, something to achieve that end
- proximity – that their act or ommission was sufficiently close
Inferring intent from the act - Case law
R v Ring (1892) 17 COX CC 491
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.
Several acts together may constitute an attempt - Case Law
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
The test for proximity
- 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, has he taken a step in the actual offence itself?
Who determines proximity?
Proximity is a question of law; it is a question that is decided by the judge based on the assumption that the facts of the case are proved
Physically impossible and legally impossible
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.
When an act is physically or factually impossible - 3 x case laws
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.
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 [1974] 2 NZLR 204
A man bought hedge clippings believing they were cannabis
When is an attempt complete
An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence.
Once the acts are sufficiently proximate, the defendant has no defence that they:
• were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means, eg insufficient explosive to blow apart a safe
• were prevented from committing the offence because an intervening event made it physically impossible, eg removal of property before intended theft.
Function of the judge and jury
The judge must decide whether the accused had left the preparation stage and was already trying to effect completion of the full offence.
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.
When are you unable to charge with attempt
You are not able to charge someone with an attempt to commit an offence where:
• 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. For example, demanding with menaces: it is the demand accompanied by the menace that constitutes the offence.
