Attempts to commit an offence

Question 1

Attempts: definition

Answer 1

Everyone who
having intent to commit an offence
does or omits an act
for the purpose of accomplishing his object
is guilty of tan attempt to commit the 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 omission was sufficiently close

Must satisfy all three. Must be legally possible to commit the offence. (but doesnt have to be physically possible…)

Question 3

R v Ring

Answer 3

In this case the offenders intent was to steal property by putting his hand into the pocket of a victim. Unbeknown to him the pocket was empty. Despite this he was still 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

Existence of intent

Answer 4

Is a statement of fact; a question that the jury decides.

Question 5

Act definition

Answer 5

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

Question 6

Omission definiteion

Answer 6

excluding
leaving out someone or something
failure to fulfil a moral or legal obligation

Question 7

Sufficiently proximate
Quick definition

Answer 7

s72(3) of CA outlines that the accused must have done or omitted some acts that are sufficiently proximate to the full offence.

Must have started to commit the full offence and gone past the phase of preparation

Question 8

Examples that may constitute an offence:

Answer 8

• lying in wait or following a contemplated victim
• enticing a victim to the scene of the contemplated crime
• reconnoitring the scene of a contemplated crime
• unlawfully entering a structure/vehicle/enclosure where contemplated crime is to be committed
• possessing/collecting/fabricating materials to be employed in commission of the crime
• soliciting an innocent agent to engage in conduct constituting an element of the offence

Question 9

Several acts together

Answer 9

Independent acts, viewed in isolation, can be construed as preparatory

Same acts viewed collectively take on different context and amount to criminal attempt

Question 10

R v Harpur (ufficiently proximate)

Answer 10

The court may have regard to the conduct viewed cumulatively up ti 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 though not determinative.

Question 11

Test for proximity

Answer 11

Ask two following questions to determine when preparation may have become an attempt:
- Has the offender done anything more than getting himself into a positions 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 12

Impossibility

Answer 12

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

Question 13

Higgins v Police

Answer 13

Where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossibly to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.

Question 14

R v Donnelly

Answer 14

(example of a legally impossibly 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 the property had previously been stolen or dishonestly obtained

Question 15

When is an attempt complete/

Answer 15

Once the acts are sufficiently proximate.

it is no defence that they:
- were prevented by an outside agent
- failed to complete it due to ineptitude
- were prevented because of an intervenign event

Question 16

Function of judge and jury

Answer 16

Judge: decide if defendant left the preparation stage

Jury:
- whether facts presented by the Crown have been proved beyond a reasonable doubt
- if actions are close enough to the full offence (actus reus)
- the defendant intended to commit the full offence (mens rea)

Question 17

Situations where you cannot charge with attempt:

Answer 17

• criminality depends on recklessness or negligence (eg manslaughter)
• an attempt to commit the offence is included in the definition of the offence (eg assault)
• the offence is such that it needs to be completed in order for it to exist at all (eg demands with menace)