Attempts To Commit An Offence Flashcards
Attempts Legislation
Section 72 Crimes Act 1961
(1)
Anyone,
Having an intent to commit an offence,
Does or omits an act,
For the purpose of accomplishing his objective.
Is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What must you prove for attempts
- The identity of the suspects, and
- They did, or omitted to do, something to achieve their object, and
- That they intended to commit an offence.
Case Law has determined three elements/conditions that must be present for attempted offence - Must prove all three
Intent (Mens rea) - to commit an offence
Act (Actus Reus) - that they did, or omit to do, something for the purpose of accomplishing his objective.
Proximity - that their act or omission was sufficiently close
Other than the three elements, What other additional requirement is needed for an attempts offence?
That it must be legally possible to commit the offence. Can be convicted of an offence that is physically impossible to commit.
The intent of the offenders may be inferred from….
The act itself (what they did) and/or proved by admissions or confessions (what they said)
Define: Act (Not defined in Crimes Act 1961)
To take action or do something, to bring about a particular result.
Define: Omission (Not defined in Crimes Act 1961)
The action of excluding or leaving out someone or something, a failure to fulfill a moral or legal obligation.
Case law’s for attempts
R v Ring, R v Harpur, Higgins v Police, Police v Jay, R v Donnelly
Sufficiently Proximate - “All but” rule. Legislation
72(3)
Accused must have done or omitted to do some act that is/are sufficiently proximate to the full offence. Started to commit the offence and gone beyond the mere preparation.
Examples of acts that may constitute an attempts.
(American Model Penal Code)
- Lying in wait, searching for, or following the contemplated victim.
- Enticing the victim to go to the scene of the contemplated crime.
- Reconnoitering (recky) the scene of the contemplated crime.
- Unlawfully entering a structure, vehicle, or enclosure in which it is contemplated that the crime will be committed.
- Possessing, collecting, or fabricating materials to be employed on the commission of the crime.
- Soliciting an innocent agent to engage in conduct constituting an element of crime.
Case law for sufficiently proximate
R v Harpur
Conduct viewed cumulatively can amount to attempt, sufficiently proximate to committed offence.
Case law for inferring intent from the act - Attempts
R v Ring
Intent demonstrated by the defendants actions
A question of law - proximity for attempts. Legislation
72(2) C.A 1961
Proximity is a question of law, decided by a judge based on the assumption that the facts of the case are proved.
Elements that help determine proximity - Attempts
No clear definition, when considering proximity you must take into consideration Fact, Degree, Common sense, and the Seriousness of the offence in each case and looked at in their totality for case by case basis.
Impossibility - Attempts.
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.
Case law for Attempts, physically impossible.
Higgins v Police - cultivating plants that aren’t cannabis.
Police v Jay - man brought hedge clippings thinking they were Cannabis.
Case law for Attempts, legally impossible.
R v Donnelly
Tried to receive property that had already been recovered. Therefore not stolen and can’t receive it.
When is an attempt complete.
When the defendant commits an act that is sufficiently proximate to the intended offence, even if they change their mind or make a voluntary withdrawal.
What are three reasons why you are not able to charge with an attempt?
- 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 has to be completed in order for the offence to exist. Eg demands with menace.
Filing of charges for attempts over full offence.
If you charge with full offence, only attempts was proven, can be convicted of attempting that offence.
If charged with attempts, found that full offence was committed, can only be convicted of attempts.
Punishment for attempts
311(1) Crimes Act 1961
If not already prescribed by some other enactment, 10years for maximum of life, otherwise half.
311(2) Crimes Act 1961
Incites, counsels, or attempts to procure any person to commit an offence, when in fact it is not committed, liable to same as if attempted offence.
Three defences that cannot be used once done act sufficiently proximate to full offence. Attempts
- Prevented by some outside agent eg. Interrupted from Police.
- Failed to complete full offence due to insufficient means eg. Insufficient explosive to blow a safe apart.
- Prevented from committing offence because of an intervening event making it physically impossible eg. Removal of property.
