Attempts to commit an offence Flashcards
Define attempts
Section 72
Everyone who having an intent to commit and offence, does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence. Whether or not it was possible to commit the offence or not.
Whether it is a preparation or too remote to attempt to commit is a question of law
What are the three elements of attempts
Mens rea - intent to commit
Actus rea - act or omission to achieve the offence
Proximity - the act or commission is sufficiently close
Can a person be convicted of an offence that was physically impossible to commit?
Yes
What must be shown when proving an attempt to commit and offence?
The accused intention was to commit the substantive offence
Can there be an attempt where there is recklessness or negligence? Give examples
No because it lacks intent to commit an offence.
There is a difference between ‘an intent to commit and offence” and “recklessness”
For example:
- Assault with intent to commit sexual violation
- No such thing as attempted manslaughter because manslaughter death is unintended and involves recklessness
How to infer the intent from the act
Actions of the offender may infer intention and/or proved my admissions.
Eg. attempted burg - offenders located at the rear of address with tools and/or their admissions when arrested
R v RING
[hand in pocket to steal a ring]
The offenders intent was to steal property by putting his hand into the pocket of his victim. Unbeknown to the offender was that the pocket was empty. The offender was still convicted of attempted theft because the intent to steal was there in his mind and demonstrated by his actions.
Who decides if there is intent
Jury
What is actus reus
Latin term meaning ‘guilty act’
Refers to the action or conduct that makes up an offence
Act
To take action or to do something, to bring about a particular result
Omission
The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation
Proximity
The act must be sufficiently close to the actual offence, meaning beyond mere preparation and actually started to complete the actual offence.
Proximity comes down to the circumstances of each individual offence
Who determines proximity and what must you take into consideration to determine this.
The judge based on the facts proved.
- fact
- common sense
- degree
- seriousness of the crime
What is the test for proximity
- has the offender done anything more than get himself into a position from which he can embark on an actual attempt
- has the offender actually commenced execution, that is to say has he taken a step in the actual crime itself
Can several acts constitute as an attempt? What are the circs in R v HAPUR
Yes, when acts are viewed collectively there is a different context and may result in an attempt.
HARPUR wanted to do sexual acts on a 4 year old girl and organised the girl to be brought to him. However he he showed up it was a UC operation. He was charged with attempted sexual violation and various other offences.
R v HAPUR
The court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops, the defendants conduct may be considered in its entirety. Considering how much remains to be done… is always relevant, through not determinative
Police v HIGGINS
[higgins cannabis cookies]
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
[Jay k - jk not cannabis]
A man bought hedge clippings believing they were cannabis
Can a person be convicted of an offence that was impossible to commit?
Yes as impossibility is a physical or factual. It is not a legal one.
Can be convicted if it’s impossible has they acted with criminal intent
When is an act physically or factually impossible to commit?
An act is physically or factually impossible to commit when it amounts to an offence but the suspect is unable to commit due to ineptitude, interruption or any other reason beyond their control
Can a person be convicted of an offence that is legally impossible to commit even if they had criminal intent?
No - because there must be an intent to commit an offence but because it’s legal therefore there is no offence
EG. selling a hallucinatory plant thinking it is illegal but it’s not
R v DONNELLY
[Legally impossible act]
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
What are the circs in R v DONNELLY
A suitcase of stolen property was located by Police at a railway station. DONNELLY came over with a ticket to the suitcase but it was not there as Police had already claimed it. He was charged was receiving and then convicted of and attempt. However this was quashed in the appeal because Police had already claimed the property it was no longer deemed stolen
Is it an attempt complete when the defendant changes their mind after completing an act that is sufficiently proximate to the intended offence?
Yes
