Attempts to commit an offence

Question 1

Define attempts
Section 72

Answer 1

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

Question 2

What are the three elements of attempts

Answer 2

Mens rea - intent to commit
Actus rea - act or omission to achieve the offence
Proximity - the act or commission is sufficiently close

Question 3

Can a person be convicted of an offence that was physically impossible to commit?

Answer 3

Yes

Question 4

What must be shown when proving an attempt to commit and offence?

Answer 4

The accused intention was to commit the substantive offence

Question 5

Can there be an attempt where there is recklessness or negligence? Give examples

Answer 5

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

Question 6

How to infer the intent from the act

Answer 6

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

Question 7

R v RING

[hand in pocket to steal a ring]

Answer 7

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.

Question 8

Who decides if there is intent

Answer 8

Jury

Question 9

What is actus reus

Answer 9

Latin term meaning ‘guilty act’

Refers to the action or conduct that makes up an offence

Question 10

Act

Answer 10

To take action or to do something, to bring about a particular result

Question 11

Omission

Answer 11

The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation

Question 12

Proximity

Answer 12

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

Question 13

Who determines proximity and what must you take into consideration to determine this.

Answer 13

The judge based on the facts proved.

• fact
• common sense
• degree
• seriousness of the crime

Question 14

What is the test for proximity

Answer 14

• 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

Question 15

Can several acts constitute as an attempt? What are the circs in R v HAPUR

Answer 15

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.

Question 16

R v HAPUR

Answer 16

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

Question 17

Police v HIGGINS

[higgins cannabis cookies]

Answer 17

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 18

Police v JAY

[Jay k - jk not cannabis]

Answer 18

A man bought hedge clippings believing they were cannabis

Question 19

Can a person be convicted of an offence that was impossible to commit?

Answer 19

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

Question 20

When is an act physically or factually impossible to commit?

Answer 20

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

Question 21

Can a person be convicted of an offence that is legally impossible to commit even if they had criminal intent?

Answer 21

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

Question 22

R v DONNELLY

[Legally impossible act]

Answer 22

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 23

What are the circs in R v DONNELLY

Answer 23

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

Question 24

Is it an attempt complete when the defendant changes their mind after completing an act that is sufficiently proximate to the intended offence?

Answer 24

Yes

Question 25

Does the defendant have a defence once the act is sufficiently proximate?

Answer 25

No defence to:

• prevented by something that was necessary to complete the offence eg. police
• failed to complete the full offence due to ineptitude, inefficient or insufficient means
  eg. insufficient explosive to blow up a safe
• were prevented from committing the offence because an intervening event made it physically impossible
  eg. removal of property before intended theft

Question 26

What does a judge and jury do, in the cases of attempts/preparations

Answer 26

Judge - decides if the defendant has left the preparation stage and was trying to effect the completion of the offence

If more than mere preparation then it goes to Jury

Jury - decide if the defendants actions are close enough to the full offence. Must be satisfy with actus and mens rea

Question 27

Three instances when you can you not charge someone with attempt to commit an offence

Answer 27

• involves recklessness or negligence EG. manslaughter
• an attempt to commit that offence is included within the definition of that offence EG. Assault
• an offence where the act has to be completed in order for the offence to exist. EG. Demands with meance

Question 28

What happens if charge for full offence but is only found guilty of an attempt

Answer 28

Then can convict of offence, but only charge for attempt and found out they are guilty for the full offence then can only convict for an attempt

Question 29

Penalty for attempt

Answer 29

Unless otherwise stated such as attempted murder or attempted sexual violation, then if its imprisonment for life then max 10 years, otherwise half the maximum punishment