ATTEMPTS TO COMMIT AN OFFENCE

Question 1

Outline the test for Proximity?

Answer 1

• Has the offender done anything more than getting himself into a position from which he could embark on actual attempt?
• Has the offender actually commenced execution; That is to say, has he taken a step in the actual crime itself.

Question 2

When is an act physically or factually impossible?

Provide examples from case law.

Answer 2

An Act is physically or factually impossible if it is an offence, but the suspect is unable to commit it due to ineptitude, insufficient means, interruption or any other circumstances beyond his control.

R v Ring (hand in empty pocket)
Police v Jay (hedge clippings thinks cannabis)
Police v Higgins (cultivates plants thinks cannabis)

Question 3

Provide an example of legally impossible act (attempt).

Explain this using case law?

Answer 3

Where the completed act is legally impossible - that is, where the completed act would not be an offence. The suspect cannot be convicted of an attempt even where they may have had criminal intent.

Question 4

Name 3 scenarios where you are unable to charge someone with an attempt under Section 72 - Crimes Act 1961?

Answer 4

You are not able to charge someone with an attempt to commit an offence where:

• 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 must have been completed for the offence to exist at all.

For Ex) Demanding with menaces. it is the demand accompanied by the menace that constitutes the offence.

NOTE:
Where a person is charged with the full offence, but they are found guilty only of an attempt, they may be convicted of the attempt.

Where a person is charged with the attempt, but the evidence establishes that the defendant did in fact commit the full offence they can only be convicted of the attempt.

Question 5

What must be proved - Attempts to commit an offence?

Answer 5

• ID of the suspects AND
• That they intended to commit an offence AND
• They did, or omitted to do, something to achieve that end

Question 6

Once the acts are sufficiently proximate, the accused has no defence that they?

Answer 6

• Were prevented by some outside agent from doing something that was necessary to complete the offence, interruption from police.
• Failed to complete the fill offence due to ineptitude, inefficiency or insufficient means, eg. insufficient explosive to blow apart a safe
• Were prevented from committing the crime because an interviewing event made it physically impossible, eg. removal of property before intended theft.