Attempts to Commit an Offence

Question 1

Attempts definition

Answer 1

Section 72

(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) Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation
(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.

Question 2

Three elements of an attempt

Answer 2

• 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

Question 3

R v Ring - Inferring intent from the act - Case Law

Answer 3

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.

Question 4

Actus Reus meaning

Answer 4

“Does or omits an act for the purpose of

accomplishing his object”

Question 5

Examples of acts that may constitute an attempt to commit an offence:

Answer 5

LERUPS

• lying in wait, searching for or following the contemplated victim
• enticing the victim to go to the scene of the contemplated crime
• reconnoitering 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.

Question 6

Attempts Case Law

Answer 6

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.”

Question 7

Test for proximity

Answer 7

• 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 crime itself?

Question 8

Who decides on proximity?

Answer 8

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.

Question 9

Higgins v Police Where an act is physically or factually impossible they can still be charged dependent on intent - CASE LAW

Answer 9

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.

Question 10

R v Donnelly - Example of legally impossible act - CASE LAW - Train Station suitcase

Answer 10

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.

Question 11

It is not a defence to an attempt if they:

Answer 11

• were prevented by some outside agent from doing something 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.

Question 12

Function of the judge and jury

Answer 12

• The judge must decide whether the defendant had left the preparation stage and was already trying to complete the full offence.
• If so the case goes to Jury..
• The jury must then decide whether the facts presented 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, as well as mens rea.

Question 13

When are you Unable to charge with attempt

Answer 13

• 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. eg, demanding with menaces

Question 14

Penalties

Answer 14

Unless specified within the charge

• 10 Years if the punishment if the offence committed is life imprisonment
• or not more than half of the sentence of the offence they are liable for

Question 15

Police V Jay

Answer 15

A man bought hedge clippings believing they were cannabis