Attempts To Commit An Offence Flashcards
Attempts - act / section
Crimes Act 1961 - Section 72 Attempts:
(1)
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2)
The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3)
An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
Three elements of an attempted offence:
1) intent to commit the offence
2) act - that they did or omitted to do
3) proximity- that their act or omission was sufficiently close
Inferring intent from the Act - case law:
R V RING
in this case, the offenders intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this, he was 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.
Section 72(c)
Acts must be sufficiently approximate to the full offence. Effectively, the accused must have started to commit the full offence and have gone past the phase of my preparation. The ‘all but ‘rule
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
-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 in the commission of a crime
Several acts together may constitute an attempt- case law:
R V HARPUR
The court may have regard to the conduct viewed cumulatively up to the point where 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.
Test for proximity
Simester and Brookbanks
-has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
Or
-Has the fender actually commenced execution, that has to say, has he taken a step and the actual climate itself?
If the answer to either question is yes then we can say there has been an attempt as a matter of law .
S72(2)
Proximity as a question of Law it is a question that is decided by the judge based on the assumption that the effects of the case can be proven.
Physically versus legally possible:
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.
Physically or factually impossible-case law:
R V RING
HIGGINS V POLICE
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.
Police V Jay
A man bought hedge clippings believing they were cannabis
Example of legally impossible act - case law
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 has previously been stolen or dishonestly obtained.
Not defences to an attempt:
-They were prevented by some outside agent (eg police)
-they failed to complete the full offence due to ineptitude
-They were prevented from continuing the full offence because something made it physically impossible (eg property not there to steal)
Situations where unable to charge for an attempt:
The criminal depends on recklessness or negligence, e.g. manslaughter
-an attempt to commit an offence is included within the definition, e.g. assault
-The offence is such that the act has to have been completed in order for the fence to exist at all e.g. demanding with menace
When an attempt is complete
When the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence
