Attempts to Commit an Offence Flashcards
What is meant by sufficiently proximate in S72(3), CA 1961, relation to attempts?
The defendant must have started to commit the full offence and gone beyond the phase of mere preparation.
Once an offender has committed acts that are sufficiently proximate to the full offence, there are three situations that do not amount to a defence to a charge. What are they?
- Prevented by some outside agent from completing the offence, e.g., interruption from Police.
- Failed due to ineptitude, inefficiency or insufficient means, e.g., insufficient explosives to blow apart a safe.
- Prevented from committing the offence because it is physically impossible, e.g., property was removed before the intended theft
When is an act physically or factually impossible?
It is 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.
What are the three elements of an attempted offence?
- Mens Rea: the intent to commit an offence
- Actus Reus: that they did, or omitted to do, something to achieve that end
- Proximity: that their act or omission was sufficiently close
When are you unable to charge someone with an attempt to commit an offence?
- The criminality depends on recklessness or negligence
- An attempt to commit an offence is included within the definition of that offence
- The offence is such that the act has to have been completed in order for the offence to exist at all
Matt gets angry at his mechanic and takes a swing at his face but misses. What is Matt charged with?
Assault
Several acts together may constitute an attempt:
His actions need not be considered in isolation, sufficient evidence of his intent was available from the events leading up to that point.
What is the test for proximity suggested in ‘Simester and Brookbanks”?
- Has the offender done anything more than getting himself into 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.
Example of legally impossible (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.
Security guard decides to burgle own work place, drives to work to check alarm so he can burgle it later.
His actions are mere preparation.
Kars is a serial rapist. His MO is to talk to woman online and meet them in person, where he subsequently rapes them. Suzie Q, an undercover police officer, messages Kars and they plan to meet up at a local coffee shop. Kars arrives at the location and is immediately arrested. Is Kars liable?
Yes, he can be charged for attempted sexual violation as travelling to the location with the intent of raping her would be sufficiently proximate to the offence.
When act physically or factually impossible?
- R v Ring: hand in empty pocket
- HIggins v Police: cultivates plants thinking it’s cannabis
- Police v Jay: hedge clippings thinking its cannabis
