Attempts to commit an offence Flashcards
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.
(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 proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
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
Intent in attempts
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.
The requirement for “intent” in section 72(1) suggests that an intention to commit the offence only will be sufficient and that there cannot be an attempt where an offence is defined solely in terms of recklessness or negligence.
Inferring intent from the act
The intent of the offender(s) may be inferred from the act itself (what they did) and/or proved by admissions or confessions (what they said).
Act definition
Act: To take action or do something, to bring about a particular result: Oxford Dictionaries, Oxford University Press.
Omission definition
Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation: Oxford Dictionaries, Oxford University Press.
Act(s) must be sufficiently proximate to the full offence
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.
American penal code examples
- 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.
determination of proximity
The determination of proximity is an inconclusive one and will come down to the circumstances as they exist for each individual offence that is being investigated.
Ask yourself: ‘Do the facts show mere preparation, or are the defendant’s acts or omissions immediately or sufficiently proximate to the intended offence?’
There is no clear definition of when an act is proximately or immediately connected to the offence or is merely preparation. When determining proximity you must take into consideration fact, degree, common sense and the seriousness of the offence in each case and these should be looked at in their totality and each on a case-by-case basis.
When an act is physically or legally impossible
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.
An act is physically or factually impossible if the act in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude, or any other circumstances beyond their control.
The suspect may believe that the completed act is illegal, but be mistaken in their belief that the completed act is illegal. That is, there must be an attempt to commit an actual offence, not an attempt to do something that, contrary to the person’s belief at the time, does not amount in law to an offence. For example, it is not an offence to attempt to sell the hallucinatory plant, Datura, in the mistaken belief that possession of it is illegal.
When is there no defence to an attempt?
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.
When are you unable to charge with an 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.
